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Shelstad v. Shelstad

Supreme Court of South Dakota

April 24, 2019

SANDRA J. SHELSTAD, Plaintiff and Appellant,
v.
DUANE M. SHELSTAD, Defendant and Appellee.

          CONSIDERED ON BRIEFS ON MARCH 25, 2019

          APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT ROBERTS COUNTY, SOUTH DAKOTA THE HONORABLE JON S. FLEMMER Judge

          MICHAEL A. HENDERSON REBEKKAH J. STEINWAND of Swier Law Firm, Prof. LLC Attorneys for plaintiff and Sioux Falls, South Dakota appellant.

          JONATHAN L. GREEN Attorney for defendant and Wahpeton, North Dakota appellee.

          SEVERSON, Retired Justice

         [¶1.] Sandra Shelstad brought suit against Duane Shelstad in 2014 for divorce. On May 16, 2014, the circuit court entered a judgment and decree of divorce based on irreconcilable differences, which judgment and decree incorporated the parties' stipulation and agreement regarding property, alimony, child custody, and child support. The stipulation provided that Sandra would have primary physical custody of the parties' minor children. However, shortly after their divorce, issues arose concerning custody, and Duane filed a motion to modify custody to award him primary physical custody of the children. The circuit court granted Duane's motion, and Sandra appeals. We affirm.

         Background

         [¶2.] Sandra and Duane were married in 2007, and two children were born during the marriage. Sandra has three additional children from previous relationships. In 2014, Sandra commenced an action for divorce against Duane. She sought primary physical custody of the parties' minor children; her three additional children were adults at the time of the divorce. In May 2014, the parties executed a stipulation and agreement regarding property, alimony, child custody, and child support. The circuit court entered a judgment and decree of divorce on May 16, 2014 based on irreconcilable differences and incorporated the parties' stipulation and agreement. The stipulation provided that it would be in the best interests of the children that the parents share legal custody and that Sandra have primary physical custody, subject to Duane's right to reasonable and liberal visitation.

          [¶3.] Although the parties were able to agree to the terms of their divorce and child custody, the contentious nature of their relationship (during and after their marriage) led to a lengthy battle to modify the custody arrangement. Sandra sought to prove Duane had a history of domestic abuse and was therefore unfit to have custody. Duane sought to prove that he, not Sandra, should have primary physical custody of the children.

         [¶4.] As proof of Duane's abusive nature, Sandra presented evidence that he threw a garbage bag at her in 2011, which struck her and cut her face. Duane claimed he believed the bag only contained diapers, but he did not dispute he threw the bag at her during one of their fights. Sandra also presented evidence that Duane was arrested for simple assault in 2012, after she called law enforcement when Duane pushed her and she fell on top of her teenage son. The charge was dismissed.

         [¶5.] After Sandra filed for divorce, she sought multiple protection orders against Duane-to protect herself, not the children. One protection order was granted. The rest were either dropped by Sandra or denied because Sandra failed to meet her burden of proof. In 2014, Duane pleaded guilty to violating a protection order. He had called Sandra's place of work three times and also went there to speak to her. In 2015, Sandra called law enforcement, claiming Duane was disorderly in the exchange of the children. Duane was charged but the charge was dismissed. Sandra, at least twice, contacted the Department of Social Services (DSS) and reported possible abuse of her children by Duane. No abuse or neglect was ever substantiated.

         [¶6.] On March 23, 2015, Sandra relocated with the children to Minnesota because she had recently started a relationship with a man from Salol, Minnesota. She informed Duane that her move was authorized pursuant to the parties' stipulation because Duane had been convicted in May 2014 of violating a protection order. Sandra then sought a protection order in Roseau County, Minnesota. The petition was dismissed after a hearing.

         [¶7.] On April 2, 2015, Duane sought immediate temporary custody of the children and requested that the South Dakota court modify custody. The court initially denied the temporary order until it could hold a hearing on Duane's motion to modify but ultimately held a hearing and granted temporary custody to Duane. After a later hearing, the court directed the parties to alternate weeks for visitation until a hearing could be held on Duane's request to modify custody. Between May 7, 2015 and July 2016, the court held multiple hearings related to ancillary matters.

         [¶8.] In August 2016, Sandra filed a motion to modify visitation, and Duane filed a motion for primary physical custody of the children. After a hearing on August 22, the court left primary physical custody with Sandra until a full evidentiary hearing could be held. Between August 22, 2016 and February 15, 2017, multiple additional hearings were held related to ancillary motions and matters.

         [¶9.] On February 15, 2017, the court held an evidentiary hearing on Duane's motion to modify custody. Sandra appeared pro se. Each of her previous five attorneys had sought and obtained permission to withdraw. At the evidentiary hearing, the court heard testimony from Duane, Sandra, a DSS caseworker, a law ...


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