Stavig v. Stavig

#25021-a-PER CURIAM
2009 SD 89

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

TROY STAVIG, Plaintiff and Appellee,

v.

JESSICA STAVIG, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA

* * * *

HONORABLE RONALD K. ROEHR
Judge

* * * *

TIMOTHY J. CUMMINGS
Green, Roby, Oviatt, Cummings &
Linngren, LLP Attorneys for plaintiff
Watertown, South Dakota and appellee.

DOUG CUMMINGS
East River Legal Services Attorneys for defendant
Sioux Falls, South Dakota and appellant.

* * * *

CONSIDERED ON BRIEFS
AUGUST 24, 2009

OPINION FILED 9/30/09
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PER CURIAM

[¶1.] This is an appeal from an order changing the primary physical custody

of Skyler Stavig from his mother, Jessica, to his father, Troy. We affirm.

FACTS

[¶2.] Jessica and Troy were married on March 2, 2002. Their only child, a

son named Skyler, was born on June 15, 2002. When Troy and Jessica divorced in

2006, they agreed that they would have joint legal custody of then four-year-old

Skyler, and that Jessica would have primary physical custody.

[¶3.] Shortly after the divorce, Troy filed a motion seeking temporary

custody of Skyler alleging that Jessica compromised Skyler's safety by leaving him

in the care of an inappropriate caregiver and by interfering with Troy's visitation.

Troy also asked the trial court to order a custody evaluation with the expenses split

between the parties.

[¶4.] The trial court ordered a custody evaluation to be performed by Dr.

Thomas L. Price, a licensed psychologist who has a PhD in Behavioral Medicine.

Dr. Price has completed over one hundred custody evaluations since 1978. Dr. Price

undertook a comprehensive child custody evaluation that utilized a number of

sources of data in an attempt to cross-validate information. Initially, Jessica and

Troy were asked to complete a comprehensive history questionnaire designed by a

team of psychologists who perform forensics or legal psychological services. Troy

completed the questionnaire; Jessica did not. Dr. Price then conducted personal

interviews with Jessica, Troy, and Skyler and collateral contacts that Jessica and

Troy provided. Dr. Price observed parent-child interactions. Jessica and Troy also

took a series of written and verbal psychological tests to look at their emotional and
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psychological functioning, their views of their parenting capacity, and their views of

the stress in their relationship. Jessica had also recently undergone a psychological

evaluation for medical purposes. While Jessica agreed to provide it to Dr. Price, she

never did.

[¶5.] In accordance with current standards, Dr. Price also screened for

domestic violence. He reviewed Jessica's 2005 and 2006 petitions for a protection

order and the two ex parte temporary orders of protection that were dismissed prior

to hearing. Dr. Price also reviewed Troy's psychological test results and the results

of Troy's anger management class where the provider did not perceive Troy to have

a significant impulse control problem relating to anger.

[¶6.] Ultimately, Dr. Price recommended to the trial court that Troy "is the

preferred custodial parent." His thirty-eight page report to the trial court

concluded:

Both parents demonstrated some irresponsibility in how
they handled aspects of this evaluation. Jessica's
exceeded Troy's. She was also found to be more defensive
on personality testing, and she'd failed to provide a report
of psychological test findings that may have been adverse
to her interests. Jessica's leaving Skylar [sic] with an
adult with limited capacities is not suggestive of good
parental judgment. Troy was more successful in
describing how various types of parental situations should
be handled.

Although there are advantages and disadvantages to
placing a child primarily with the mother or with the
father in this case, the examiner's assessment of the data
available to him at this point indicates Troy is the
preferred custodial parent. There are indications the
father tends to be a little more responsible, is more
capable of demonstrating good judgment and is somewhat
more capable in managing his life. Skylar [sic] is a [sic]
more closely bonded to his father. Jessica should of

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course have reasonable visitation rights, consistent with
the current South Dakota guidelines.

[¶7.] Jessica's expert, Constance M. Kelso, has a MS in counseling and has

been a mental health counselor for emotionally disturbed youth in the Watertown

School District for sixteen years. Jessica asked Kelso to spend time with Skyler due

to her concern over his emotional state. In Kelso's "limited time" with Skyler she

found him withdrawn. On one occasion under questioning Skyler told Kelso that he

was afraid of his father. Kelso recommended more intensive therapy.

[¶8.] Kelso reviewed Dr. Price's child custody evaluation. Kelso felt that Dr.

Price put very little time or effort into the evaluation. Kelso found the report

lacking because "when there is a history of domestic violence, you really need to

focus on contacting third-parties and looking at the history of the violence and how

much violence occurred in the presence of child, what the risk is to the child in the

future of being subjected to incidents of violence." Attendance at anger

management classes does not necessarily address domestic violence issues and

psychological testing does not indicate if a person is a batterer according to Kelso.

Kelso did admit that she does not perform custody evaluations and does not

administer psychological tests. Kelso's sole source of information regarding Troy

was Jessica.

[¶9.] In rendering its decision the trial court found Dr. Price's report and

testimony thorough, professional, and helpful. The trial court gave no weight to

Kelso's criticism of that report. The trial court also did not find Jessica to be a

credible witness.

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[¶10.] The trial court found Troy and Jessica "fit parents" who were each able

to provide for Skyler's temporal, mental and moral welfare. The court, however,

found Troy "a little more able to do so" than Jessica. Both parents were in good

mental and physical health. While Troy had a minor problem with anger, the court

was concerned that Jessica may suffer from depression and refused to provide a

prior pre-surgical psychological evaluation. Both parents had the capacity to

provide for Skyler's basic needs. The trial court was concerned that Jessica allowed

Skyler to be cared for overnight by a disabled person who required housing,

medication, and monitoring to meet his own needs. While both parents had the

ability to give Skyler love, affection, guidance, and education, Troy was more

inclined to take him to church and Sunday School. In addition, Jessica was not

committed to encouraging contact between Skyler and Troy. In considering the

prospect of a stable, consistent home environment, the trial court found that Skyler

had a good relationship with his parents. Skyler was well-adjusted. He was bonded

to both parents, although a little more bonded to Troy as Jessica acknowledged to

Dr. Price. The trial court found no evidence of harmful misconduct by either parent.

[¶11.] The trial court specifically addressed the issue of domestic abuse in its

memorandum decision that was incorporated in the findings of fact and conclusions

of law:

In awarding custody, the Court also considers a conviction
of domestic abuse, a conviction of assault against certain
persons, and a history of domestic abuse. SDCL 25-4-
45.5. Neither parent has any such conviction. Domestic
abuse is defined as "physical harm, bodily injury, or
attempts to cause physical harm or bodily injury, or the
infliction of fear of imminent physical harm or bodily
injury between family or household members." SDCL 25-

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10-1(1). On two occasions Jessica petitioned the circuit
court in Codington County for a protection order for
domestic abuse from Troy. On both occasions she had the
proceeding dismissed prior to a hearing on her petition.
As previously indicated, Troy has a mild anger control
problem. During the marriage he would get angry, use
vulgar language, and call Jessica names. Sometimes
Jessica would respond in kind. Sometimes the parties
would engage in shoving or pushing each other;
sometimes this shoving and pushing was initiated by
Troy. Troy did not hit or injure Jessica. Some of these
incidents took place in Skyler's presence. Dr. Price
screened for domestic violence; he reviewed the protection
order files, Troy's anger management class records,
diagnosis and outcome; and he administered his own
tests. Dr. Price's conclusion is that Troy's anger is a
minor condition.

Considering all the circumstances, the Court concludes
that Tyler's [sic] best interests require that Troy have
physical custody. Any presumption created by SDCL 25-
4-45.5 has been rebutted.

ISSUE

[¶12.] Did the trial court err when it changed primary physical
custody from Jessica to Troy?

STANDARD OF REVIEW

[¶13.] When a judgment and decree of divorce is based upon the parties'

agreement, custody may be modified in subsequent proceedings without the

necessity of a "substantial change in circumstances." Hulm v. Hulm, 484 NW2d

303, 305 (SD 1992) (quoting Williams v. Williams, 425 NW2d 390, 393 (SD 1988)).

"Thus, the party seeking modification must only show that the best interests and

welfare of the child requires a change of custody." Hulm, 484 NW2d at 305. "The

best interests of the child are determined by considering the child's temporal,

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mental, and moral welfare." Pietrzak v. Schroeder, 2009 SD 1, ¶ 39, 759 NW2d 734,

744.

It is a poignant reality that when parents contest the
custody of their children, a court must make a choice.
That choice is often difficult because between two loving
parents there may be little to distinguish one over the
other. Choosing between two satisfactory options falls
within a judge's discretion. Thus, in our review of an
ultimate decision on custody, we decide only whether the
court abused its discretion. [Fuerstenberg v.
Fuerstenberg, 1999 SD 35, ¶ 22, 591 NW2d 798 at 807]
(citations omitted). Although we have repeatedly invoked
stock definitions, the term "abuse of discretion" defies an
easy description. It is a fundamental error of judgment, a
choice outside the range of permissible choices, a decision,
which, on full consideration, is arbitrary or unreasonable.
See generally Adrian v. McKinnie, 2002 SD 10, ¶ 10, 639
NW2d 529, 533 (citations omitted). This standard is the
most deferential of appellate review standards, but that
does not mean that a judge's custody decision will remain
undisturbed. Rather, it is a recognition that trial courts
are in a better position to make these difficult choices
because the parents are present in the courtroom and the
judge is better able to assess their capabilities firsthand.

Arneson v. Arneson, 2003 SD 125, ¶ 14, 670 NW2d 904, 910.

[¶14.] A trial court's findings of fact will be upheld unless clearly erroneous.

Pietrzak, 2009 SD 1, ¶ 38, 759 NW2d at 744. A trial court's findings of fact will only

be overturned on appeal when a complete review of the evidence leaves this Court

with a definite and firm conviction that a mistake has been made. Id.

DECISION

A.

[¶15.] Jessica contends that Troy's history of domestic abuse created a

presumption that awarding custody to Troy was not in Skyler's best interest. She

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contends that Troy did not rebut that presumption. Her contention is based on

SDCL 25-4-45.5 which provides:

In awarding custody involving a minor, the court shall
consider:

(1) A conviction of domestic abuse as defined in
subdivision 25-10-1(1); or

(2) A conviction of assault against a person as
defined in subdivision 25-10-1(2), except
against any person related by consanguinity,
but not living in the same household; or

(3) A history of domestic abuse.

The conviction or history of domestic abuse creates a
rebuttable presumption that awarding custody to the
abusive parent is not in the best interest of the minor. A
history of domestic abuse may only be proven by greater
convincing force of the evidence. 1

1. SDCL 25-4-45.5 and SDCL 25-4-56 (custody and visitation disputes - mediation - exceptions)
require proof of a history of domestic abuse "by greater convincing force of the evidence."
They are the only current statutes requiring this degree of proof and both were rewritten in
2008.

Generally proof in a civil case need only be by a preponderance of the evidence. Matter of
Estate of Gibbs, 490 NW2d 504, 508 (SD 1992). In the late 1990s the State Bar of South
Dakota's Civil Pattern Jury Instruction Committee revised the civil jury instructions so that
they no longer refer to the burden of proof by a preponderance of the evidence since
"[p]reponderance of the evidence is not in common use in our speech today and is more
difficult for a juror to comprehend than greater convincing force of the evidence." Comment,
South Dakota Pattern Jury Instruction 1-60-10. The committee made clear its belief that
"this is not a substantive change in the existing law." Id. Accordingly, Pattern Jury
Instruction 1-60-10 provides:

In civil actions, the party who has the burden of proving an issue must prove that
issue by greater convincing force of the evidence.

Greater convincing force means that after weighing the evidence on both sides there
is enough evidence to convince you that something is more likely true than not true.
In the event that the evidence is evenly balanced so that you are unable to say that
the evidence on either side of an issue has the greater convincing force, then your
finding upon the issue must be against the party who has the burden of proving it.
In this action, the plaintiff has the burden of proving the following issues:
(List issues defendant must prove.)
The defendant has the burden of proving these issues:
(List issues defendant must prove.)
(continued . . .)
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Under SDCL 25-4-45.7, "in determining whether a history of domestic abuse exists,

the court's consideration may include the issuance of a protection order against a

parent or any arrest report of a parent following the response of law enforcement to

a report of domestic abuse as defined in subdivision 25-10-1(1)."

[¶16.] The presumption provided for in SDCL 25-4-45.5 is subject to South

Dakota's rule on a presumption in civil cases. SDCL 19-11-1 provides:

In all civil actions and proceedings, unless otherwise
provided for by statute or by chapters 19-9 to 19-18,
inclusive, a presumption imposes on the party against
whom it is directed the burden of going forward with
evidence to rebut or meet the presumption, but does not
shift to such party the burden of proof in the sense of the
risk of nonpersuasion, which remains throughout the trial
upon the party on whom it was originally cast. When
substantial, credible evidence has been introduced to
rebut the presumption, it shall disappear from the action
or proceeding, and the jury shall not be instructed
thereon.

This rule is essentially Federal Rule of Evidence 301 with the "substantial, credible

evidence language" appended to South Dakota's rule. In re Estate of Dimond, 2008

SD 131, ¶ 7, 759 NW2d 534, 536-537. The words "substantial, credible evidence" in

SDCL 19-11-1 were "ostensibly added to meet the criticism of the federal rule that a

scintilla of evidence - enough merely to burst a bubble - is all that is required to

_________________________
(. . . continued)
In determining whether or not an issue has been proved by greater convincing force
of the evidence, you should consider all of the evidence bearing upon that issue,
regardless of who produced it.

This Court has not yet been asked to approve this pattern jury instruction or determine if it
does change substantive law. This Court will not do so now. We only cite the instruction as
the Civil Pattern Jury Instruction Committee's opinion of the definition of "greater
convincing force."

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overcome the presumption." Estate of Dimond, 2008 SD 131, ¶ 8, 759 NW2d at 537.

We explained:

Still, going forward with "substantial, credible evidence"
should not ordinarily be equated with meeting any
particular burden of proof. Otherwise, the burden of
producing evidence shifts to become the burden of
persuasion, contradicting the explicit provisions of the
rule. A presumption "does not shift . . . the burden of
proof in the sense of the risk of nonpersuasion[.]" See
SDCL 19-11-1 (Rule 301). Reading this statute as a
whole, therefore, we deduce that the substantial, credible
evidence requirement means that a presumption may be
rebutted or met with such evidence as a trier of fact would
find sufficient to base a decision on the issue, if no
contrary evidence was submitted. But mere assertions,
implausible contentions, and frivolous avowals will not
avail to defeat a presumption. What may suffice as
substantial, credible evidence will, of course, vary
depending on the nature of the presumption. A
presumption implementing vital public policy, like the
presumption of legitimacy, for instance, would require
weighty evidence to surmount it. SDCL 25-4-48; SDCL
25-8-57. Conversely, a presumption established primarily
as a procedural device may require some lesser quantum
of substantial, credible evidence for rebuttal.

Estate of Dimond, 2008 SD 131, ¶ 9, 759 NW2d at 537-538 (footnotes omitted).

B.

[¶17.] In awarding custody, a court is required to consider a conviction of

domestic abuse, a conviction of assault as defined, and a history of domestic abuse.

SDCL 25-4-45.5. In this case the record reflects, and the trial court found, that

neither Jessica nor Troy had any such conviction. The trial court was then charged

with determining if there was a history of domestic abuse. SDCL 25-4-45.5(3).

[¶18.] Domestic abuse is defined as:

physical harm, bodily injury, or attempts to cause
physical harm or bodily injury, or the infliction of fear of

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imminent physical harm or bodily injury between family
or household members. Any violation of § 25-10-13 or
chapter 22-19A or any crime of violence as defined in
subdivision 22-1-2(9) constitutes domestic abuse if the
underlying criminal act is committed between family or
household members.

SDCL 25-10-1(1). Domestic abuse is not reviewed in isolation. There must be a

"history" of such abuse. SDCL 25-4-45.5(3). In determining whether a history of

abuse exists the court may consider "the issuance of a protection order against a

parent" or "any arrest report of a parent following law enforcement response to a

report of domestic abuse[.]" SDCL 25-4-45.7. A protection order, SDCL 25-10-1(3)

is distinguished from a temporary protection order. SDCL 25-10-1(4). The

difference between a temporary protection order and a protection order is

significant. An ex-parte temporary protection order may be issued by a court based

on an affidavit which alleges that immediate and irreparable injury, loss, or damage

will result before an adverse party can be heard in opposition. SDCL 25-10-6. A

protection order can only be issued after notice to the opposing party and a hearing

where the court finds by a preponderance of the evidence that domestic abuse has

taken place. SDCL 25-10-5. In interpreting what is sufficient to constitute a

"history of domestic abuse" "[i]t is for the court to weigh the evidence of domestic

abuse, its nature, severity, repetition, and to whom directed, not just to be a counter

of numbers." In re Marriage of Forbes, 570 NW2d 757, 760 (Iowa 1997).

[¶19.] In this case Jessica contends that Troy has a history of domestic abuse.

Her allegations of domestic abuse do not meet the definition of domestic abuse,

SDCL 25-10-1(1), and there is no evidence of the issuance of a protection order or

arrest report. SDCL 25-4-45.7. The trial court considered Jessica's recall of events

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that she believed constituted the history of domestic abuse and considered Kelso's

concern over Troy's domestic abuse based solely on Jessica's account to her. The

trial court did not find Jessica to be a credible witness and gave no weight to Kelso's

criticism of Dr. Price's evaluation and report. "The credibility of witnesses and the

weight afforded to their testimony is . . . within the discretion of the trial court."

Pietrzak, 2009 SD 1, ¶ 37, 759 NW2d 734, 743. In this case there was mutual

shoving, pushing, and vulgarity in language. While there were allegations of

domestic abuse, there was not evidence of a history of domestic abuse as required by

SDCL 25-4-45.5.

[¶20.] The trial court carefully considered all of the factors relevant to

determining Skyler's best interests in this custody dispute, including those factors

in SDCL 25-4-45.5. It made an informed decision after weighing the evidence and

having the opportunity to judge the credibility of the parties. It did not abuse its

discretion by finding that Skyler's best interests supported Troy's primary physical

custody.

[¶21.] Affirmed.

[¶22.] GILBERTSON, Chief Justice, KONENKAMP, ZINTER,

MEIERHENRY and SEVERSON, Justices, participating.

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