APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT YANKTON COUNTY, SOUTH DAKOTA HONORABLE ARTHUR L. RUSCH.
CONSIDERED ON BRIEFS AUGUST 24, 2009
[¶1.] Following a visitation dispute, the circuit court terminated William and Sherri Wiedenfeld's joint legal custody of the parties' two minor children and entered a judgment and order awarding Sherri "sole legal and physical custody of the minor children." Because the circuit court sua sponte changed legal custody without considering the best interests of the children, it abused its discretion. We reverse and remand.
[¶2.] William and Sherri divorced on October 4, 2007. As part of the divorce decree, the circuit court incorporated a stipulation of the parties that granted joint legal custody of the children to the parties and granted physical custody to Sherri. The decree also set a visitation schedule for William.
[¶3.] On September 30, 2008, William filed a motion for an order to show cause why Sherri should not be held in contempt for failing to turn over items of personal property and denying visitation with the children. William also requested counseling for the children based on an allegation that the children may have been sexually abused by a cousin. At the motion hearing the parties stipulated to the request for counseling, and the circuit court denied the motion for contempt. The circuit court further ordered that the parties mediate their visitation disputes. Near the end of the hearing, the courtterminated the joint legal custody following this exchange:
Counsel: Just one issue, if I may address it, Your Honor, on behalf of [William]. Considering the visitation and the holiday-altering schedule has been switched around and flip-flopped from time to time, to the point where he's unsure of what the current schedule is to be, and in view of that fact and of the fact that he has not had Christmas visitation with the children each of the last two Christmases, he would request that he be allowed Christmas visitation this year, and then, starting with that, they be on a set schedule for altering holidays.
The Court: What does the court order say?
Counsel: I believe the court order was pursuant to the visitation guidelines, which requires alternating holidays.
I am corrected, Your Honor. The court order just merely says reasonable visitation to [William], that both parties will share joint legal custody.
The Court: You know, I simply can't address every minor issue between people that won't talk or can't talk. You know, it's clear that the parties in this case are unable to communicate, or you wouldn't be here. Given that situation, joint legal custody simply won't work. I'm going to terminate the joint legal custody, place the legal and physical custody [with Sherri], and require the parties to engage in mediation as far as that-what the reasonable visitation should be. If they can't engage in that-and that's-the legislature has said that issues of visitation are preferably resolved with mediation. But obviously the custody-joint custody isn't working and won't work.
I'm not in any way, by making that ruling, requiring that the -- or allowing [Sherri] to shut [William] out of the children's life. You know, I'm still going to require that she make him aware of all medical and school activities involving children.
Neither party had requested a change in joint legal custody. The excerpt above is the extent of the discussion of the issue. The circuit court entered no findings of fact or conclusions of law regarding legal custody. William appeals contending the circuit ...