APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE DOUGLAS E. HOFFMAN Judge
The opinion of the court was delivered by: Gilbertson, Chief Justice
CONSIDERED ON BRIEFS ON JANUARY 9, 2012
[¶1.] This is an appeal from an order granting primary physical custody of the parties' three children to Father. We affirm.
[¶2.] Ashley Goeman (Mother) and Richard Nemec (Father) met while they were both in the custody of the Department of Corrections as teenagers. They had three children in 2001, 2002, and 2003. Mother and Father never married. They lived in Pierre, South Dakota until they separated in spring 2007. During this time, Father's mother, LaDene, provided substantial care and financial support to Mother, Father, and the children.
[¶3.] Father and Mother had a history of domestic abuse. Father pleaded guilty to simple assault in 2005 and disorderly conduct in 2006.*fn1 Mother secured a protection order against Father in May 2007. Father consented to the order becoming permanent without any court making a finding of domestic abuse. Father completed an anger management class after his last conviction. After a car accident in 2008, Father changed his lifestyle. He quit using illegal drugs and drinking.
[¶4.] When the parties separated in 2007, Mother moved to Sioux Falls. She left the children with LaDene in Pierre. Mother did not provide LaDene any financial support for the children. LaDene only allowed Father to have contact with the children in person when he was sober. He talked with the children almost daily on the phone if he could not see them in person.
[¶5.] When Mother moved, she owned a vehicle but it was repossessed in late 2007. Since then, she has not owned a vehicle and does not have a driver's license. Mother had sporadic, minimal contact with the children after she moved to Sioux Falls. LaDene provided gas money for Mother to facilitate at least two visits. In spring 2008, LaDene sought financial assistance from the Department of Social Services to help care for the children. Mother was notified that she would be required to reimburse the State for funds it paid to LaDene. Father began paying child support to the State.
[¶6.] On March 17, 2008, Mother arrived in Pierre without notice and attempted to remove the oldest child from school. As a result of Mother's actions and in concern for the children's welfare, in April 2008 LaDene filed a petition for guardianship of the children.*fn2 The petition was granted in September 2008. The circuit court made extensive findings on Mother's failure to properly care for the children. The court did not make a finding on Mother's fitness.
[¶7.] Between September 2008 and June 2010, Mother had sporadic contact with the children. She went five months without seeing the children and three months without making any attempt to contact them at all. LaDene testified she did not always have a phone number to reach Mother during that time. In 2009, Mother was twice convicted of driving under the influence. Mother's employment history during this time was irregular. She did not provide any child support. Meanwhile, Father had improved his life and began spending more time with his children. He also began a stable relationship with his current wife, obtained steady employment, and bought a home.
[¶8.] Mother appealed the grant of guardianship to LaDene. This Court reversed the order in June 2010. In re Guardianship of S.M.N., 2010 S.D. 31, ¶ 29, 781 N.W.2d 213, 225. Mother received primary physical custody of the children in June 2010. She then denied contact between the children and Father until Father got a court order. Father did not see the children until October 2010.
[¶9.] Father petitioned for custody of the children immediately after this Court issued its' decision. Custody between Father and Mother had not previously been determined by a court. At trial, Mother objected to any evidence from before August 2008. Mother argued that such evidence was barred by collateral estoppel because it was tried in the guardianship case. The court overruled the objection. The circuit court awarded Father primary physical custody in January 2011.
[¶10.] On appeal, the issues presented are: 1. Whether the circuit court erred in considering evidence of conduct before the August 2008 guardianship trial. 2. Whether the circuit court erred in concluding that Father ...