MELISSA M. MOULTON, Plaintiff and Appellant,
JACK W. MOULTON, Defendant and Appellee.
CONSIDERED ON BRIEFS ON AUGUST 28, 2017
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE JOHN PEKAS Judge
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
GILBERTSON, Chief Justice.
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
and Procedural History
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,
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,
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. 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.
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
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
2. Whether the circuit court abused its discretion by
ordering Melissa to pay Jack's attorney fees.
"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.
1. Whether the circuit court erred in determining
Adam's interests were better served by remaining in
Jack's physical custody.
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.
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