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Van Duysen v. Van Duysen

Supreme Court of South Dakota

November 4, 2015

TRAVIS JAMES VAN DUYSEN, Plaintiff and Appellant,
v.
JENNIFER MARIE VAN DUYSEN, Defendant and Appellee

Considered on Briefs August 31, 2015

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, BON HOMME COUNTY, SOUTH DAKOTA. THE HONORABLE GLEN W. ENG, Judge.

SCOTT R. SWIER, MICHAEL A. HENDERSON, BROOKE SWIER SCHLOSS of Swier Law Firm, Prof. LLC, Avon, South Dakota, Attorneys for plaintiff and appellant.

WANDA HOWEY-FOX of Harmelink, Fox & Ravnsborg, Law Office, Yankton, South Dakota, Attorneys for defendant and appellee.

SEVERSON, Justice. GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN, Justices, concur.

OPINION

SEVERSON, Justice

[¶1] Travis Van Duysen appeals the circuit court's grant of primary physical custody of his two children to their mother Jennifer Van Duysen. Travis asserts that the court abused its discretion when it relied on findings that were unsupported by the evidence. We affirm.

Background

[¶2] Jennifer and Travis Van Duysen were married in 2007. They have two minor children together, a daughter and a son. Their daughter was born in 2005. Jennifer and the daughter lived with Jennifer's parents for some time until Jennifer and Travis married. Their son was born in 2010. In 2011, Travis filed for divorce. Shortly before Travis filed for divorce, Jennifer and the children left the marital home. The details of the argument precipitating the separation were disputed at trial. Jennifer alleges that Travis held her up by the neck; Travis denied this but admitted he grabbed her sweatshirt and spun her around to talk to him. Eventually, the parties agreed to divorce in 2014 on the grounds of irreconcilable differences.

[¶3] A two-day court trial was held on June 30 and July 1, 2014. The issues before the court were custody, visitation, child support, attorney fees, and alimony. A home study evaluation recommended granting Travis primary physical custody. The evaluators[1] found Travis to be the favored parent based on the fitness and harmful parental misconduct categories of their evaluation. They found Jennifer to be the favored parent in the category of primary caretaker. Finally, the evaluators determined that both parents were equally able to provide stability, noted that child preference was not applicable, and recommended that the children remain together. The court granted Jennifer primary physical custody. Travis appeals. The sole issue on appeal is whether the court abused its discretion in awarding primary physical custody of the children to Jennifer. Travis contends that the court based its decision on findings that were not supported by evidence, thereby abusing its discretion.

Standard of Review

[¶4] We review child custody decisions under the abuse of discretion standard. Pietzrak v. Schroeder, 2009 S.D. 1, ¶ 37, 759 N.W.2d 734, 743. " The credibility of witnesses and the weight afforded to their testimony is also within the discretion of the [circuit] court." Id. " An abuse of discretion occurs in a child custody proceeding when the [circuit] court's review of the traditional factors bearing on the best interests of the child is scant or incomplete. The broad discretion of a trial court in making child custody decisions will only be disturbed upon a finding that the [circuit] court abused its discretion." Id.

Analysis

[¶5] After the two-day trial, the circuit court noted that the home study evaluation mirrored the Fuerstenberg factors, and it discussed each finding, explaining whether it agreed or disagreed based on " the evidence, the credibility, [and] the testimony[.]" See Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, 591 N.W.2d 798. The court determined that the evaluators' decision placed great weight on two incidents that were testified to at length during trial. One such incident involved a dispute at a Christmas program. Travis and his parents took the children to a local church Christmas program. Jennifer came later to pick the children up because Travis's visitation was over. Jennifer testified that she asked her daughter to change her clothes so that the clothes could be returned to Travis. The daughter wanted to keep her clothes, and a tense situation and disagreement between Jennifer, ...


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