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McCarty v. McCarty

Supreme Court of South Dakota

July 8, 2015

CRAIG WILLARD MCCARTY, Plaintiff and Appellant,
v.
KIMBERLY PAULL MCCARTY, Defendant and Appellee

Considered on Briefs March 23, 2015.

Page 356

APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE JANINE KERN, Judge.

LINDA LEA M. VIKEN, KYLIE M. RIGGINS of Viken & Riggins Law Firm, Rapid City, South Dakota, Attorneys for plaintiff and appellant.

ROBERT J. GALBRAITH of Nooney & Solay, LLP, Rapid City, South Dakota, Attorneys for defendant and appellee.

GILBERTSON, Chief Justice. ZINTER, SEVERSON, and WILBUR, Justices, and PEKAS, Circuit Court Judge, concur. PEKAS, Circuit Court Judge, sitting for KERN, Justice, disqualified.

OPINION

Page 357

GILBERTSON, Chief Justice

[¶1] Dr. Craig McCarty (Father) appeals after the circuit court changed primary physical custody of the parties' two children, N.M. and C.M., to Kimberly McCarty (Mother). Father argues on appeal that the circuit court erred when it found that a substantial change in circumstances was not required to change custody. Father also argues that the court erred when it found that returning primary physical custody to Mother was in the best interests of the children based on a substantial change in circumstances. We affirm.

Facts and Procedural History

[¶2] Father and Mother divorced in July 2007. At the time of the divorce, the parties agreed to share joint legal custody of N.M. and C.M., with Mother having primary physical custody. After the divorce, Mother maintained residence in Box Elder, South Dakota, and Father moved to Gillette, Wyoming. The children would usually spend the school year in Box Elder and then stay in Gillette during the summer. Mother had primary physical custody of the children for four years until Father filed a petition for a change of custody in June 2011. Father alleged that Mother was not adequately addressing the children's special needs and was not honoring Father as a parent.

[¶3] On June 6, 2012, following a contested trial, the circuit court changed primary physical custody from Mother to Father. The court entered findings of fact, conclusions of law, and an order modifying child support and changing custody. In its conclusions of law, the court stated, " Unless otherwise agreed by the parties in writing, the [c]ourt will set up a review hearing in May 2013." The children subsequently moved to Gillette and resided with Father and Dr. Breck McCarty (Stepmother).

[¶4] On May 28, 2013, Mother filed a motion for a change of custody. The court held a two-day trial on August 22 and 23, 2013. After hearing considerable testimony from Mother, Father, Stepmother, Tom Collins (the court-appointed parenting coordinator), and Dr. Jim Simpson (the custody evaluator), the court changed custody from Father back to Mother. The circuit court held that a showing of a substantial change in circumstances was not required because the circuit court had scheduled a " review hearing" one year earlier. The circuit court further held that, even if a substantial change in circumstances was required, a substantial change in circumstances existed in this case based on " the breakup and the contentious dissolution of [Stepmother] and [Father's] medical group" and " [Stepmother's] diagnosis in mid-January of stage 4 metastasized breast cancer with cancer now present, in essence, in her liver." ...


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