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Moulton v. Moulton

Supreme Court of South Dakota

November 8, 2017

MELISSA M. MOULTON, Plaintiff and Appellant,
v.
JACK W. MOULTON, Defendant and Appellee.

          CONSIDERED ON BRIEFS ON AUGUST 28, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE JOHN PEKAS Judge

          RICK L. RAMSTAD of Crew and Crew, PC Sioux Falls, South Dakota Attorneys for plaintiff and appellant.

          GREGORY T. BREWERS of Strange, Farrell, Johnson & Brewers, PC Sioux Falls, South Dakota Attorneys for defendant and appellee.

          GILBERTSON, Chief Justice.

         [¶1.] Jack W. Moulton and Melissa M. Moulton divorced. By stipulation, the parties agreed to share legal custody of their two children, Marissa and Adam, with Jack having primary physical custody of Adam and Melissa having primary physical custody of Marissa. Melissa subsequently moved for a change of custody, seeking primary physical custody of Adam. The circuit court denied the motion, and Melissa appeals. We affirm.

         Facts and Procedural History

         [¶2.] Jack and Melissa married in 2005. The marriage was Jack's third and Melissa's second. In 2009, Jack and Melissa separated, each suspecting the other of infidelity. The circuit court entered a judgment and decree of divorce on June 21, 2011, on the grounds of irreconcilable differences. At the time, the parties stipulated that they would share legal custody of their two children, Marissa and Adam, [1] and that Jack would have the children in his care two overnights per week. After his divorce from Melissa, Jack remarried his first wife, Dawn. At the time of the proceedings below, Melissa had not remarried but cohabited with her boyfriend, Jeff.

         [¶3.] In 2013, Melissa, who was employed as a financial advisor, accepted a job transfer that required her to relocate immediately to Williston, North Dakota, but provided a substantial financial incentive.[2] In order to avoid litigation, the parties agreed to modify the custody arrangement. The parties stipulated that they would share legal custody of Marissa and Adam, that Jack would have primary physical custody of Adam, and that Melissa would have primary physical custody of Marissa. The circuit court approved the modification on August 27, 2013.

         [¶4.] On October 22, 2014, Melissa filed a motion for temporary physical custody of Adam after he suffered an asthmatic episode. Citing Jack's longstanding smoking habit, Melissa argued Adam's health was imperiled by continuing to reside with Jack. The circuit court did not order a custody evaluation, but Melissa commissioned one herself, which concluded Melissa should be given physical custody of Adam. After hearing testimony and argument on August 5, 2015, and February 9 and 10, 2016, the court entered findings of fact and conclusions of law and denied Melissa's motion. The court also ordered Melissa to pay $15, 120 of Jack's attorney fees.

         [¶5.] Melissa appeals, raising the following issues:

1. Whether the circuit court erred in determining Adam's interests were better served by remaining in Jack's physical custody.
2. Whether the circuit court abused its discretion by ordering Melissa to pay Jack's attorney fees.

         Standard of Review

         [¶6.] "A circuit court's determination of what constitutes a particular child's best interest is a finding of fact, " which this Court reviews under the clearly erroneous standard. People ex rel. E.M.H., 2015 S.D. 101, ¶ 5, 873 N.W.2d 485, 486. This Court will accept the circuit court's factual findings unless after a complete review of the record, the Court is left "with a definite and firm conviction that a mistake has been made." Aguilar v. Aguilar, 2016 S.D. 20, ¶ 9, 877 N.W.2d 333, 336 (quoting Clough v. Nez, 2008 S.D. 125, ¶ 8, 759 N.W.2d 297, 301). The circuit court's decision to award attorney fees is reviewed for an abuse of discretion. Hewitt v. Felderman, 2013 S.D. 91, ¶ 23, 841 N.W.2d 258, 264.

         Analysis and Decision

         [¶7.] 1. Whether the circuit court erred in determining Adam's interests were better served by remaining in Jack's physical custody.

         [¶8.] Melissa's primary argument is that the circuit court erred in determining Adam's interests were better served by remaining in Jack's custody. In particular, Melissa contends Jack's smoking places Adam's health at risk. She also contends the court failed to identify compelling circumstances justifying the separation of Marissa and Adam. And finally, she contends her custody evaluation supports her claim for a change in custody.

         [¶9.] In making custody decisions, a court's "brightest beacon" is the best interest of the child. McCarty v. McCarty, 2015 S.D. 59, ¶ 12, 867 N.W.2d 355, 359. "In awarding the custody of a child, the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child's temporal and mental and moral welfare." SDCL 25-4-45. In making such determination, a "court may, but is not required to, consider the following . . . factors . . .: parental fitness, stability, primary caretaker, [the child's] preference, harmful parental misconduct, separating siblings, and substantial change of circumstances." McCarty, 2015 S.D. 59, ¶ 12, 867 N.W.2d at 359 (quoting Roth v. Haag, 2013 S.D. 48, ¶ 13, 834 N.W.2d 337, 340). Not all of these ...


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