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Brent Benson v. Michelle Loffelmacher

October 31, 2012

BRENT BENSON,
PETITIONER AND APPELLEE,
v.
MICHELLE LOFFELMACHER,
RESPONDENT AND APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE JOHN J. DELANEY Retired Circuit Judge

The opinion of the court was delivered by: Konenkamp, Justice

MARCIA WHITING

CONSIDERED ON BRIEFS ON AUGUST 27, 2012

OPINION

#26169

[¶1.] In this custody dispute, the circuit court awarded joint legal custody to both parents and primary physical custody to the father, and the mother appeals. We affirm.

Background

[¶2.] Michelle Loffelmacher and Brent Benson had a child out of wedlock.

Michelle told Brent about her pregnancy before their child's birth. On December 8, 2004, A.L. was born, and a paternity test confirmed Brent as her biological father. Brent had only limited involvement with A.L. after her birth until late 2007. He lived in Minnesota during that time, but would send A.L. presents and occasionally visit her at Michelle's home in Rapid City.

[¶3.] In 2007, Brent moved to Dickinson, North Dakota, near his parents' residence. Michelle's sister, Cheryl, lived twenty-five miles south in New England, North Dakota. Michelle frequently took A.L. to Cheryl's home, at which times Brent would visit A.L. Gradually, Brent began to take A.L. from Cheryl's home to his parents' house. There, Brent's mother operated a daycare and would watch A.L. while Brent exercised visitation. When his time for visitation ended, Brent would return A.L. to Cheryl's home. Cheryl would return A.L. to Michelle, or Michelle would drive from Rapid City to North Dakota to retrieve A.L.

[¶4.] In November 2007, Brent petitioned the circuit court to establish paternity, custody, and visitation. Michelle responded with a request to modify child support. Before trial, they agreed that Michelle would retain physical custody of A.L. and drop her request to modify child support, and Brent would exercise visitation for one week every other month at Brent's mother's home. This arrangement continued until Brent petitioned for a change of custody in October 2010, with an accompanying motion for an emergency change of custody. Brent believed Michelle's mental health issues prevented her from adequately caring for A.L.

[¶5.] At a hearing in November, the circuit court denied Brent's request for an emergency change of custody. The court ordered a professional custody evaluation and scheduled an evidentiary hearing for January 2011. At the time of the hearing, the custody evaluation was not yet complete. Nonetheless, Brent, his mother, Michelle's sister, Cheryl, and Cheryl's husband testified on Brent's behalf. They spoke about Brent's care of A.L. and about Michelle's depression and mental health issues, particularly Michelle's inability to care for A.L. when she was depressed. They also described the nature of Michelle's relationships with three men. To refute Brent's allegations, Michelle introduced several character witnesses. They testified about the appropriateness of Michelle's care of A.L. and her management of her mental health issues.

[¶6.] After the hearing, the court took the issue under advisement and allowed the parents to submit post-hearing briefs. Ultimately, in March 2011, the court awarded interim custody to Brent. It based its decision on Michelle's mental health problems, which had impaired her ability to care for A.L. in the past, and which would likely continue at certain times in the future. The court also focused on the fact that Michelle had inappropriately exposed A.L. to three live-in boyfriends.

[ΒΆ7.] On June 29, 2011, the custody evaluator, Thomas Collins, submitted his report to the court. He addressed each of the factors from Fuerstenburg v. Fuerstenberg, 1999 S.D. 35, 591 N.W.2d 798. On the issue of the parents' physical and mental health, Collins concluded that Brent had a "strong advantage." He explained that Michelle "has a history of mental health disorders, including depression, anxiety, and an adjustment disorder, and she was voluntarily admitted to Rapid City Regional Psychiatric Unit in 2007." He noted that Michelle "has counseled with several different providers since 2005 and has been variously diagnosed with Bipolar II, with recurring depression, major depression, general anxiety disorder, obsessive compulsive disorder, ADHD, dyslexia, and has ...


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