Argued Oct. 2, 2013.
[Copyrighted Material Omitted]
Michele A. Munson of Woods, Fuller, Shultz & Smith, PC, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.
Steven G. Haugaard, Sioux Falls, South Dakota, Attorney for defendant and appellee.
[¶ 1.] Todd Pieper (Todd) and Nicole Pieper (Nicole) have two children, B.P. and T.P. Nicole alleges that Todd sexually abused B.P., which Todd denies. They divorced in February 2011. The Second Circuit Court gave Nicole sole physical custody of the two children and granted Todd supervised visitation. Nicole appeals the divorce decree, asserting that: (1) the circuit court abused its discretion by granting Todd visitation under an erroneous legal conclusion and applying an incorrect burden of proof; (2) the circuit court abused its discretion when evaluating conflicting testimony from experts; (3) the circuit court abused its discretion by delegating its duty to determine the best interests of the child to a social worker; and (4) the circuit court erroneously valued Nicole's retirement. Because the circuit court erroneously concluded that it could not prohibit visitation and applied the incorrect burden of proof to the allegations of sexual abuse, we reverse the circuit court's visitation order and remand for a determination of whether visitation with Todd is in the children's best interests. We affirm the circuit court's valuation of Nicole's retirement.
[¶ 2.] Todd and Nicole married on May 23, 1998. They had two children during their marriage— a daughter (B.P.) on October 23, 2004, and a son (T.P.) on May 6, 2008. Nicole alleges that B.P., starting in July 2008 without provocation or questioning, began indicating that Todd was sexually abusing her. B.P. allegedly made statements about Todd performing sexual actions.
[¶ 3.] Later that month, Nicole alleges she witnessed events that led her to believe B.P.'s statements. While Todd, Nicole, and B.P. were sleeping in the same bed, Nicole alleges that Todd pushed B.P.'s head to his pelvic area. Nicole apparently confronted Todd. Todd denied any inappropriate touching. Nonetheless, Nicole contacted the police and the Department of Social Services (DSS). DSS told Nicole to take B.P. to Child's Voice.
[¶ 4.] At Child's Voice, a physical examination by Dr. Nancy Free revealed that B.P. had labial adhesions. Dr. Free testified that labial adhesions in young girls are caused by a lack of estrogen, which is normal in pre-pubertal females, as well as caused by irritation, whether it is hygiene or trauma. Ultimately, Dr. Free could not determine whether B.P. was sexually abused.
[¶ 5.] Nicole alleges that on November 30, 2008, she again witnessed Todd sexually abusing B.P. Nicole claims she saw Todd kneeling in front of B.P. inserting his fingers in B.P.'s vagina. Nicole immediately took B.P. to the police station and
reported the event to the police. Detectives interviewed Nicole and B.P. Detective Jennifer Van Roekel used anatomically correct dolls during B.P.'s interview. B.P. physically and verbally demonstrated that Todd had digitally penetrated her vagina and anus, she had performed oral sex on Todd, and Todd's mouth had touched her vagina. B.P. again was referred to Child's Voice. There, B.P. alleged to Dr. Free that sexual contact occurred with Todd. Further, Dr. Free noted reddening of B.P.'s labia. However, Dr. Free could not confirm whether B.P. had been sexually abused. Dr. Free recommended that B.P. receive counseling and referred B.P. to Michele VanDenHul. VanDenHul began counseling B.P. in February 2009.
[¶ 6.] Subsequently, the Minnehaha County Sheriff's Department arrested Todd. A grand jury indicted Todd on December 11, 2008, for first degree rape. Shortly thereafter, Nicole initiated divorce proceedings and obtained a protection order against Todd. At a criminal trial on November 18, 2009, a jury acquitted Todd. The civil case proceeded, assigned to Judge Riepel, Second Judicial Circuit.
[¶ 7.] Following his acquittal, Todd requested visitation with B.P. and T.P. by a motion for visitation heard on February 19, 2010. The circuit court ordered supervised visitation with T.P. only. One month later after hearing testimony, the circuit court revised visitation. A year later in February 2011, through several proceedings, the circuit court addressed the divorce issues. On February 11, 2011, the circuit court granted Nicole and Todd a divorce on the grounds of irreconcilable differences. On February 25, 2011, the circuit court concluded, among other things, that Todd was entitled to half of Nicole's pension account valued on the date of their divorce at $31,576.84. Also, the circuit court continued the protection order against Todd but expressed an interest in reunification between Todd and the children.
[¶ 8.] At a hearing on May 23, 2011, the circuit court expressed its concern with completely denying Todd visitation, stating: " I am driven by our state Supreme Court that says I am prohibited from denying visitation for eternity; and that the bottom line is for reunification at some point." To assist with a reunification plan, the circuit court elicited the help of Dr. Thomas Price. Dr. Price recommended a gradual exposure between Todd and B.P. with further counseling for B.P. Michele VanDenHul, who had been counseling B.P. for approximately two years at this point, disagreed with a reunification plan. VanDenHul felt that no visitation should occur until B.P. was emotionally ready.
[¶ 9.] The circuit court disagreed with VanDenHul. The circuit court found that VanDenHul's counseling did not move B.P. any closer to dealing with B.P.'s feelings regarding the alleged sexual abuse. Moreover, the circuit court found that VanDenHul seemed to accept Nicole's version of the facts and did not investigate the possibility that the abuse did not occur. In VanDenHul's place, Sarah Alexander began counseling the children. VanDenHul and Larry Dancler, a family therapist, criticized Alexander's approach.
[¶ 10.] After Alexander issued her recommendations to the circuit court, Todd moved for primary physical custody. Due to scheduling rotations, the matter was heard on August 14, 2012, by Judge Tiede, who later denied the motion but dismissed the protection order. Prior to Judge Tiede's decision, Judge Riepel issued the divorce decree awarding sole ...