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Aguilar v. Aguilar

Supreme Court of South Dakota

March 9, 2016

ANTONIO AGUILAR, Plaintiff and Appellant,
v.
BRITTANY LEE AGUILAR Defendant, and TOSHA SMITH, Intervener and Appellee

          Considered on Briefs January 11, 2016

Page 334

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

         ROBERT D. PASQUALUCCI, Rapid City, South Dakota Attorney for plaintiff and appellant.

         ANGELA COLBATH, Rapid City, South Dakota Attorney for intervener and appellee.

         GILBERTSON, Chief Justice. ZINTER, SEVERSON, and WILBUR, Justices, concur. KERN, Justice, deeming herself disqualified, did not participate.

          OPINION

Page 335

          GILBERTSON, Chief Justice

          [¶1] Antonio (Tony) Aguilar filed for divorce from Brittany Aguilar and sought custody of their daughter, M.A. Brittany's sister, Tosha Smith, intervened and sought custody of M.A. The circuit court concluded that extraordinary circumstances warranted giving custody of M.A. to Tosha, and Tony appeals. We affirm.

         Facts and Procedural History

          [¶2] Tony and Brittany Aguilar were married on June 4, 2010, in Tucson, Arizona. The couple have one minor child together, M.A., who was born on April 30, 2011.

          [¶3] At the time M.A. was born, neither Tony nor Brittany was legitimately employed; Tony supported his family through the sale of illegal drugs. Additionally, both Tony and Brittany used heroin. Tony--a former member of the " Vista Bloods" gang--also has an extensive criminal history including possession, consumption, and distribution of controlled substances; aggravated assaults; and violations of probation and parole.

          [¶4] On April 14, 2011, at age 19, Tony was convicted in Arizona for selling or transferring an illegal, cocaine-based drug. He was sentenced to three years of intensive probation. However, Tony subsequently violated the conditions of his probation, and within several months of M.A.'s birth, he was incarcerated. Tony was eventually placed on work furlough.

          [¶5] In the fall of 2011, while out on work furlough, Tony stopped at his home to retrieve several personal items. While there, it appeared to Tony that Brittany was unhealthy. He observed what he recognized to be track marks on her arm. Concerned about Brittany's ability to care for M.A., Tony called Brittany's mother, Koree Hamilton, who lived in South Dakota. Tony asked Koree to come to Arizona, bring M.A. to South Dakota, and care for her. Koree and Tosha, who was also Koree's daughter, agreed and brought M.A. to Sioux Falls, where Tosha was living at the time.[1] Although Tony asserts he stayed in contact with Koree and Tosha, the court found that he did not maintain regular contact with M.A. or regularly inquire about her status with Tosha. Tosha has cared for M.A. since that time, and they now reside in Rapid City, as do many of M.A.'s maternal relatives.

          [¶6] Since entering the criminal justice system, Tony has taken significant steps toward improving himself as a person and as a father. While on probation, Tony took court-ordered parenting classes and obtained his GED. He attended substance-abuse classes multiple times each week. Prior to his release in September 2013, Tony became romantically involved with Chantil Astemborski. Tony and Chantil are now engaged, and Tony moved into Chantil's home after his release.[2] Tony has taken additional parenting classes since his release. According to Tony, he is active in a church and is no longer a gang member. However, the circuit court found that Tony is unable to

Page 336

financially support M.A. on his own, making M.A. dependent on Tony's relationship with Chantil.

          [¶7] In December 2013, Tony and Chantil travelled to South Dakota with the intention of bringing M.A. back to Arizona to live with them and Chantil's two children. Tosha thwarted Tony's attempt by locking herself and M.A. in a gas station's restroom and summoning Brittany and law enforcement. Tony subsequently filed for divorce on February 10, 2014, and sought custody of M.A. Tosha intervened. The circuit court found that Tosha sought custody of M.A. only until such time as Tony or Brittany is able to properly care for M.A. Finding it was in M.A.'s best interest to remain with Tosha, the court awarded Tosha custody of M.A.

          [¶8] Tony appeals, raising the following issue: Whether the circuit court erred in awarding Tosha custody of M.A.

         Standard of Review

          [¶9] Determining whether extraordinary circumstances exist sufficient to overcome parental rights regarding the custody of children is a question of law reviewed de novo. In re Guardianship of S.M.N., 2010 S.D. 31, ¶ 11, 781 N.W.2d 213, 218. " Under the de novo standard of review, we give no deference to the circuit court's conclusions of law." Id. ¶ 10, 781 N.W.2d at 218. The court's factual findings will not be disturbed unless they are clearly erroneous. Id. ¶ 11, 781 N.W.2d at 218. Therefore, we " will overturn findings of fact on appeal only when a complete review of the evidence leaves the Court with a definite and firm conviction that a mistake has been made." Clough v. Nez, 2008 S.D. 125, ¶ 8, 759 N.W.2d 297, 301 (quoting Miller v. Jacobsen, 2006 S.D. 33, ¶ 19, 714 N.W.2d 69, 76). We " give due regard to the opportunity of the circuit court to judge the credibility of witnesses and to weigh their testimony properly." S.M.N., 2010 S.D. 31, ¶ 11, 781 N.W.2d at 218 (quoting Meldrum v. Novotny, 2002 S.D. 15, ¶ 18, 640 N.W.2d 460, 463).

         Analysis ...


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