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Kreps v. Kreps

February 10, 2010

KELLY JO KREPS, PLAINTIFF AND APPELLANT,
v.
JASON ALAN KREPS, DEFENDANT AND APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT LINCOLN COUNTY, SOUTH DAKOTA HONORABLE DOUGLAS E. HOFFMAN Judge.

The opinion of the court was delivered by: Gilbertson, Chief Justice

ARGUED OCTOBER 5, 2009

[¶1.] After a custody trial, Father received primary physical care of the three children born during the marriage. Mother appeals contending the trial court abused its discretion when it did not consider her status as the primary physical parent as paramount to all other child custody factors. Mother also argues the trial court abused its discretion when it allegedly failed to accept the custody evaluator's report and failed to focus on the entire evidentiary record. We affirm.

FACTS

[¶2.] Jason Kreps, age thirty-eight at the time of trial in September 2008, and Kelly Jo Kreps, age forty-four at the time of trial, began dating in 2002. The couple became pregnant with their first child in the fall of that year. The couple married in January 2003, and their son Dylan was born on June 23, 2003, in Des Moines, Iowa, where the couple resided.

[¶3.] During the time the couple dated, Jason assisted Kelly with finding a lawyer to help her get reinstated into medical school. Kelly was able to complete her medical degree in the spring of 2004. She then accepted a residency in Kirskville, Missouri, a community three to four hours south of Des Moines, which was anticipated to last four to five years. During Kelly's residency, Jason was able to reduce his work week to just three days a week. He spent the other four days in Kirksville taking care of Dylan while Kelly was working. Jason would often bring Dylan back to Des Moines with him, and while Jason worked Dylan would stay at the family home with a baby sitter until around 3 p.m. when Jason would return from work. Dylan would sometimes stay in Kirksville for the three days while Jason worked in Des Moines, but due to the lack of a suitable baby sitter and Kelly's long hours in the residency program it became difficult for her to care for Dylan. After four months in Kirksville, Kelly resigned from the residency program and returned to Des Moines in the fall of 2004. With the help of her relatives, Kelly was able to find a position in a residency program in Sioux Falls, South Dakota, to commence in June or July of 2005.

[¶4.] The couple planned to relocate the family to Sioux Falls over the summer. At that time, they found out they were expecting twin girls. Kelly's due date for the twins was December 13.

[¶5.] By early summer of 2005, the marital relationship became strained. Communication between the couple was poor. The parties reached a breaking point when an argument between them ended in Kelly calling the police who arrested Jason. An automatic restraining order was entered against him. Jason was originally charged with domestic assault. The domestic assault charge was dropped and Jason received a deferred sentence on a disorderly conduct charge.

[¶6.] Kelly moved to South Dakota in June of 2005 and served Jason with divorce papers in July and a petition for custody of Dylan. For the first three months Kelly was living in Sioux Falls with Dylan, the divorce and custody petition were pending in Iowa. While the custody petition was pending, Kelly did not permit Jason more than a few hours of visitation with Dylan at any one time.

[¶7.] On August 17, 2005, the Iowa District Court for Polk County entered a temporary custody and visitation order. That order granted the parties joint legal custody with Kelly having primary physical custody of Dylan. The order provided Jason twice a month visitation with Dylan from Wednesday through Sunday, which required each party to drive to Sioux City, Iowa, to exchange Dylan. The order did not address visitation with the yet to be born twin girls.

[¶8.] The twins were born by planned cesarean section in late November 2006, two weeks before their original due date. Kelly did not inform Jason the girls were to be delivered on that date. Kelly's sister contacted Jason to advise him of their births shortly after the cesarean section had been performed. Kelly also named the twins without his input. Jason immediately filed a motion for visitation with the twins, but Kelly resisted it contending the Iowa court lacked personal jurisdiction over the twins. For the next twelve months after the birth of the twins, Kelly was able to determine whether and how Jason would have visitation with the twins without any direction by either the Iowa court or a South Dakota court.

[¶9.] Kelly determined that she would permit Jason to see the twins for one-half hour before Jason picked up Dylan for his schedule visitation twice each month and another half hour when he returned Dylan after visitation. These half hour visits were conducted in a motel lobby in Sioux Falls. Kelly informed Jason that her breast feeding schedule did not allow for additional visitation other than in half four increments twice a month. In the fall of 2006, Kelly also raised concerns about Jason and his fiancée, Shelli Robertson, smoking around the children, an accusation that was eventually determined by the trial court to be meritless and an effort to further limit Jason's visitation and contact with the children.

[¶10.] While living in South Dakota, Kelly also established a pattern of taking the children to routine and emergency medical appointments without telling Jason until after the visit. Kelly unilaterally determined that it was sufficient to advise Jason within twenty-four hours after such an appointment had taken place. This precluded Jason from being a part of the discussion of the children's medical issues. Kelly's pattern was cited by Jason as another effort on her part to limit his involvement in the children's lives.

[¶11.] In October 2006, the Iowa court dismissed the pending visitation motion and the custody proceedings so that a South Dakota court could determine these issues. Jason immediately filed a motion with the Lincoln County circuit court for custody of the three children and for the appointment of a custody evaluator. In December 2006, the trial court ordered temporary joint legal custody and primary care with Kelly. That order granted Jason visitation with all three of the children every weekend, with three weekend visits per month in Sioux Falls and one in Des Moines. Jason was granted four hours of time with the twins on Saturdays from noon to 4 p.m., and another three hours on Sundays from 11 a.m. to 2 p.m. in order to balance their breast feeding schedule with visitation with their father. The trial court left the holidays open for Jason and Kelly to negotiate and determine how to implement an alternating holiday visitation schedule. A custody evaluation was also ordered, and each party was required to either agree to an evaluator or submit their proposals for an evaluator by December 22, 2006. The parties were also ordered to attempt to mediate both custody and visitation, with mediation to be completed by January 31, 2007.

[¶12.] The parties selected Dr. Andre Clayborne as their mediator, and mediation was attempted in May. When mediation was not successful, Dr. Clayborne later assumed the responsibilities as the custody evaluator. Originally scheduled for completion by the end of December 2006, home studies were delayed and Kelly's misplaced psychological evaluation caused the process to extend into the spring of 2007.

[¶13.] During the evaluation process, Jason argued that Kelly continued to complicate visitation by not showing up at agreed upon times, refusing to bring the children to Des Moines, refusing to work out an alternating holiday visitation schedule as required by the temporary custody order, and at times ignoring Jason's attempts to communicate with her. In the fall of 2008, the children missed three scheduled visitations in Des Moines with Jason over a twelve-week period due to Kelly's unwillingness or inability to travel and her refusal to permit the visitations in Sioux Falls.

[¶14.] Kelly also refused to provide Jason with contact information, records, or reports from the various daycare providers she had used since moving to South Dakota, which included three different nannies and two or three daycare facilities. Jason was able to locate the most recent daycare used by Kelly and called to get more information. The daycare director told Jason she would be happy to provide information once Kelly called and confirmed that it could be shared with him. Kelly refused to approve the sharing of any information with Jason regarding the children by the daycare facility. Despite two attempts to subpoena records from the daycare provider as to the hours spent there by the children, cost, and progress by Dylan in the pre-school program, the daycare claimed such documentation did not exist. This left Jason without any information about how the children were cared for while Kelly was at work, or the ability to participate in childcare decisions. All that Jason could ascertain was that the children were generally in daycare Monday through Friday from before 8 a.m. when Kelly had to arrive at work, until her work day concluded. Kelly also placed the children with neighbors and family when she was on-call in the evenings or weekends and needed to be at the hospital, but the amount of time the children spent in daycare was not disclosed by Kelly even when questioned at trial.

[¶15.] Despite repeated attempts by Jason, Kelly also refused to discuss whether Dylan should attend kindergarten in the fall of 2008 at age five or wait until the following year. Kelly discussed the matter with friends and family, but allowed the time to enroll Dylan to expire without any input from Jason. Jason was forced to accept Kelly's unilateral decision on the matter.

[¶16.] Dr. Clayborne concluded in his custody evaluation report that both parents were fit. He also reported that he believed that Kelly had been the primary care parent when the couple was married. Based on Kelly's statements and focus on the issue during her interview, Dr. Clayborne reported that he believed Kelly would be slightly more favored in supporting the other parent's relationship with the children. However, Dr. Clayborne reported to the court that it would not be in error placing the children in either parent's care. Nevertheless, Dr. Clayborne recommended that Kelly remain the primary care parent, with Jason receiving liberal visitation. Finally, Dr. Clayborne's report indicated that "[i]n review of the documentation, this evaluator did not find any information which would suggest the children would significantly benefit from a change in custody."

[¶17.] On September 24, 2008, trial on the matter was finally held. At that time, Dylan was five and the twin girls were almost three years old. During his testimony, Dr. Clayborne testified that in his report he had recommended Kelly have primary physical care. He also stated: "But again, I don't see that Jason could not be in that position." Dr. Clayborne also conceded on cross-examination that the numerous delays in the proceeding worked to Kelly's advantage in giving her more time as the primary care parent, which translated to more time to bond with the children prior to the custody hearing. Finally, Dr. Clayborne testified that when he asked Jason and Kelly whether the visitation was working, both Jason and Kelly replied that it was.

[¶18.] After trial on the matter, the trial court entered 107 findings of fact and numerous conclusions of law. It found that all three children had formed a strong parental bond with both parents and a good relationship with Ms. Robertson. The trial court also found that prior to Kelly moving to South Dakota, Jason and Kelly appeared to have shared equally as the primary caretaker for Dylan. The trial court further found that the evidence suggested both parties were at equal fault for the disturbance that resulted in domestic assault charges against Jason in the summer of 2005.

[¶19.] With regard to the issue of which parent had served as the primary care parent, the trial court found that Kelly had been the primary physical caretaker for the children since moving to South Dakota. The trial court further found that Kelly had caused significant delays in the custody evaluation and legal proceedings, which gave her an advantage as the primary care parent during the time the matter was pending. While it determined that the children had spent significantly more time in Kelly's home than they had in Jason's, the trial court found no substantial evidence to suggest the children would not be able to quickly and fully adjust to spending the majority of their time in Jason's home. It also found that the evidence suggested the children had formed a somewhat closer attachment to Kelly as opposed to Jason due to being in Kelly's primary care. However, the trial court was convinced that strong and healthy attachments to Jason and Ms. Robertson and Jason's extended family existed such that the children were not likely to experience any significant difficulty adjusting to Jason as the primary care parent.

[¶20.] The trial court also found Kelly had demonstrated a "profound lack of ability or willingness to maturely encourage and provide frequent and meaningful contact between the children and Jason, and had failed to foster the children's relationship with Jason." The trial court gave significant weight to Kelly's deficiencies in this regard. It further found that the "detrimental effects and potential effects of Kelly's attempts to alienate the children from Jason significantly outweigh the benefits of keeping the children in Kelly's primary physical custody."

[¶21.] With regard to Jason, the trial court found him to be the more credible witness. It also found that Jason was the parent most willing to maturely encourage and provide frequent and meaningful contact between the children and other parent. The trial court strongly favored Jason in this regard.

[ΒΆ22.] The trial court also found Jason demonstrated the greatest commitment to prepare the children for responsible adulthood, and a greater ability to provide exemplary modeling of what it means to be a good parent, loving spouse, and responsible citizen. It also found if the children were in Jason's custody, they would be likely to spend less time in daycare due to Jason's flexible work schedule and Ms. Robertson's assistance, compared to Kelly's long hours as a resident, which ...


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