APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE WALLY EKLUND Judge
The opinion of the court was delivered by: Zinter, Justice
CONSIDERED ON BRIEFS ON MARCH 19, 2012
[¶1.] This case involves a grandchildren visitation disagreement between a father and maternal grandparents. The grandparents were unhappy with the father's restrictions on visitation, and they filed a petition for a broader visitation plan. At the close of the grandparents' case-in-chief, the circuit court granted father's motion for a judgment as a matter of law and motion for attorney's fees. We affirm.
Facts and Procedural History
[¶2.] David and Becky Coisman married and lived in Rapid City. Becky's parents, Ellen and Keith Beach, lived on a ranch in Montana. In the summer of 2006, Becky gave birth to twins. The twins were born prematurely, and Ellen and Keith helped David and Becky care for the twins during their infancy. Ellen and Keith continued to have substantial contact with the twins over the next few years.
[¶3.] In April 2009, Becky died. After Becky's death, David arranged for the twins' continued contact with Ellen and Keith, including visitation at Ellen and Keith's Montana ranch. After these visits, David began to feel that Ellen and Keith had insufficient concern for the twins' exposure to heavy equipment and recreational vehicles at the ranch. David was also concerned about the twins' supervision when they were alone with Ellen and Keith.
[¶4.] In December 2009, David allowed the children to travel to Montana with Ellen for a three-day visit. Ellen and Keith kept the children an extra ten days without David's approval. Following this incident, David advised Ellen and Keith that the children would not be allowed to return to Montana. Instead, he encouraged Ellen and Keith to visit the twins in South Dakota. In February 2010, Ellen and Keith visited the twins in Rapid City. However, from March 2010 to September 2010, no visitation occurred.
[¶5.] In August 2010, Ellen and Keith filed a petition for visitation. Ellen and Keith requested, among other things, to have the children in Montana one weekend per month during the children's school year, one week during Christmas break, and four consecutive weeks during the summer. Ellen and Keith also requested that David pay one-half the cost of transportation associated with the visits. David did not accept Ellen and Keith's requested visitation plan. However, he did allow visitation in Rapid City throughout the court proceedings.
[¶6.] David moved for a directed verdict (judgment as a matter of law) and an award of attorney's fees at the end of Ellen and Keith's case-in-chief. The circuit court granted both motions, and Ellen and Keith appeal.
[¶7.] Ellen and Keith argue that the circuit court erred as a matter of law in applying SDCL 25-4-52,*fn1 the grandparent visitation statute, to resolve this dispute.
Ellen and Keith contend that SDCL 25-4-52 is inapplicable because that statute is located in a chapter of the South Dakota code on "Divorce and Separate Maintenance" and this proceeding was not part of a divorce. Ellen and Keith assert that the circuit court should have applied SDCL 25-5-29,*fn2 a general nonparent visitation and custody statute.
[¶8.] Even if Ellen and Keith's petition for visitation should have been considered under SDCL 25-5-29, they could not have prevailed unless they rebutted David's presumptive parental ...