Baker v. Holland

#24974-rev & rem-PER CURIAM

2009 SD 72

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

JEFFREY M. BAKER, Plaintiff and Appellant,

v.

AMANDA HOLLAND, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE SECOND JUDICIAL CIRCUIT
LINCOLN COUNTY, SOUTH DAKOTA

* * * *

HONORABLE DOUGLAS E. HOFFMAN
Judge

* * * *

TIMOTHY J. KRAMER of
Kramer Law Office PLC
Sioux Center, Iowa Attorneys for plaintiff
and appellant.

STEPHANIE R. AMIOTTE of
Moore, Rasmussen, Kading
& Kunstle, LLP
Sioux Falls, South Dakota Attorneys for defendant
and appellee.

* * * *

CONSIDERED ON BRIEFS
ON APRIL 27, 2009

OPINION FILED 8/12/09
#24974
PER CURIAM

[¶1.] Jeffrey Baker appeals the circuit court's order in this child custody

proceeding. A provision in the circuit court's order substantially and automatically

reduced Jeffrey's noncustodial parenting time 1 based solely on whether Amanda

Holland, the mother, worked weekends. Because that reduction in noncustodial

parenting time is not supported by findings based on the record, it constitutes an

abuse of discretion, we reverse and remand.

FACTS

[¶2.] Jeffrey and Amanda are the parents of Brady Baker. Brady was born

November 27, 2006. Jeffrey and Amanda were not married but resided together

until December 2007. The court found that while they lived together both parents

were significantly involved in the care of Brady. Both parents also have an

additional child. Amanda's son has shared a home with Brady since his birth. The

court found that both parents were fit and stable individuals, had been significant

caretakers and had not demonstrated any harmful parental misconduct. The court

awarded joint legal custody with primary physical custody to Amanda.

[¶3.] The parents' work schedule, and the resulting impact on noncustodial

parenting time, is the primary issue involved in this appeal. Jeffrey worked

weekdays from 8 a.m. to 5 p.m. Amanda worked two days a week from 9 a.m. to 8

p.m.; three days a week from 9 a.m. to 5 p.m. and every Saturday. Jeffrey was

1. As the result of a recent legislative enactment, the use of the term
"visitation" has been revised to "noncustodial parenting time." See SDCL 25-
4A-10; 2008 SD Sess Laws ch 126, § 2.

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granted noncustodial parenting time on an alternating basis: one week he would

have Brady on Tuesday evening from 5 p.m. to 8 p.m. (three hours) and Friday from

5 p.m. to Sunday at 9 a.m. (two overnights). The next week he would have Brady on

Tuesday from 5 p.m. to 8 a.m. (overnight) and Friday from 5 p.m. to Saturday at 5

p.m. (overnight). The order also provided for an alternative noncustodial parenting

time schedule in the event Amanda no longer worked weekends:

ORDERED that when [Amanda] is no longer working on
Saturdays or the weekends, she shall be entitled to every
other weekend with the minor child and [Jeffrey] shall be
entitled to visitation on alternating weekends as set forth
in paragraphs A and D.

* * *

A. Week One- [Jeffrey] shall exercise visitation with
the parties' minor child on alternating Fridays beginning
at 5:00 p.m. overnight until Saturday at 5:00 p.m.

* * *

D. During the week Jeffrey exercises Friday through
Sunday visitation (Week Two) he shall be entitled to one
mid-week visit beginning at 5:00 p.m. and ending at 8:00
p.m. on Tuesdays.

Since the record indicated that Amanda no longer worked weekends, the alternative

noncustodial parenting time schedule was implemented. However, the terms of the

alternative schedule contained inconsistencies and led to confusion for the parties.

The order gave Jeffrey parenting time every other weekend from Friday at 5:00

p.m. until Saturday at 5:00 p.m. and then under provision D. there was presumably

a three-hour noncustodial parenting time Tuesday from 5 p.m. to 8 p.m. The terms

of the order appear inconsistent in that there was no specific award of noncustodial

parenting time from Friday through Sunday for Jeffrey as prefaced in clause D. to

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trigger the three-hour period. Amanda interpreted the provision to mean: "once

Mother is no longer working on Saturdays or weekends, Father's visitation will

essentially revert to alternating Fridays at 5:00 p.m. until Saturday at 5:00 p.m."

Brief for Appellee at 3 (Appeal No. 24974). Jeffrey filed a motion to reconsider the

noncustodial parenting time order and the record demonstrates that the varying

interpretations of the order were brought to the court's attention. 2 The court

denied the motion to reconsider but e-mailed the parties that Amanda's attorney

was correct in interpreting this provision as allowing Jeffrey parenting time on

alternating Fridays to Saturday overnight and Tuesday for three hours; now that

Amanda was not working every Saturday. As a result, the previous schedule giving

Jeffrey a full weekend of parenting time and the weekday overnight has been

eliminated.

[¶4.] Jeffrey appeals contending the circuit court abused its discretion in

ordering the weekend work clause and the corresponding reduction in his parenting

time.

DISCUSSION

[¶5.] A circuit court's order for noncustodial parenting time is reviewed

under the abuse of discretion standard. L.S. v. C.T., 2009 SD 2, ¶ 28, 760 NW2d

145, 153. "The term 'abuse of discretion' refers to 'a discretion exercised to an end

or purpose not justified by, and clearly against, reason and evidence.'" Id. (citations

2. This arrangement lasted only a matter of weeks before the parties disputed
the application of the weekend work provision when Amanda had her work
schedule changed.

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omitted). "However, the trial court's exercise of discretion is not uncontrolled and

must have a sound and substantial basis in the testimony." Weber v. Weber, 529

NW2d 190, 191 (SD 1995).

[¶6.] The primary focus always remains on the best interests of the child.

Id. In determining the best interests of a child, the court must consider the child's

"temporal and mental and moral welfare." SDCL 25-4-45. "The trial court may, but

is not required to, consider the following factors in determining the best interests

and welfare of the child: parental fitness, stability, primary caretaker, child's

preference, harmful parental misconduct, separating siblings, and substantial

change of circumstances." Pietrzak v. Schroeder, 2009 SD 1, ¶ 41, 759 NW2d 734,

744.

[¶7.] The disputed provision of the noncustodial parenting time order in this

case provides:

A. Week One- [Jeffrey] shall exercise visitation
with the parties' minor child on alternating
Fridays beginning at 5:00 p.m. overnight
until Saturday at 5:00 p.m.;

B. Week Two- [Jeffrey] shall exercise visitation
with the parties' minor child on alternating
Fridays beginning at 5:00 p.m. until Sunday
at 9:00 a.m.

C. During the week that [Jeffrey] exercises
Friday through Saturday visitation (Week
One), he shall be entitled one mid-week
overnight visit on Tuesdays.

D. During the week that [Jeffrey] exercises
Friday through Sunday visitation (Week
Two) he shall be entitled to one mid-week
visit beginning at 5:00 p.m. and ending at
8:00 p.m. on Tuesdays; it is hereby further

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ORDERED that when [Amanda] is no longer working on
Saturdays or the weekends, she shall be entitled to every
other weekend with the minor child and [Jeffrey] shall be
entitled to visitation on alternating weekends as set forth
in paragraphs A and D.

Therefore, when Amanda worked Saturdays or weekends Jeffrey received parenting

time from Friday at 5:00 p.m. to Saturday at 5:00 p.m. and Tuesday overnight

(Week One). The following week (Week Two) he received parenting time Fridays at

5:00 p.m. until Sunday at 9:00 a.m. and Tuesday evenings from 5 p.m. to 8 p.m.

However, when Amanda no longer worked Saturdays or weekends Jeffrey received

parenting time every other weekend; consisting of Friday at 5:00 p.m. to Saturday

at 5:00 p.m. and then presumably Tuesday from 5 p.m. to 8 p.m. As previously

mentioned, the Tuesday parenting time is contradictory because clause D. applies

when Jeffrey exercises his time Friday through Sunday, which the court eliminated

because Amanda did not work weekends. 3

3. For a child this age the parenting guidelines provide:

Alternate parenting plans: (1) The noncustodial parent
has the child up to three times per week for a few hours
on each visit, on a predictable schedule; or (2) Same as (1)
but with one overnight per week; or (3) Child spends time
in alternate homes, but with more time in one than the
other with two or three overnights spaced regularly
throughout the week. This arrangement requires an
adaptable child and cooperative parents.

The circuit court's order without application of the weekend work clause
allowed Jeffrey ample parenting time; certainly more than the minimum
contemplated by the guidelines. The weekend work clause, based on no other
factor than Amanda's weekend work schedule, reduced Jeffrey's parenting
time to the lower range contemplated by the guidelines.

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[¶8.] Clearly, the weekend work clause contained in the noncustodial

parenting time order effectuated a dramatic reduction in Jeffrey's time with his

child (four overnights reduced to one overnight). However, the court's findings of

fact and conclusions of law contradicted such a reduction in noncustodial parenting

time. The court's findings indicated that Jeffrey was significantly involved in the

care of his child, was fit as a parent, stable, and equally provided the child love and

affection. Significantly, the court did not mention or explain the rationale of the

weekend work clause in its written findings or conclusions.

[¶9.] While clearly Amanda should have time on the weekend with the child,

there are no findings of fact or evidence in the record that supported what is

essentially a reduction to one night for Jeffrey based solely on Amanda's weekend

work schedule. Likewise, the court's treatment of this issue in pronouncing its oral

ruling was inconsistent with the weekend work provision in the order:

It's probably not going to be the case that Amanda is
working every Saturday forever. I mean, she already has
a fairly responsible position and is making—you know—a
salary that is commensurate with a responsible position.
And –you know—at some point people are given the
benefit of being able to have at least every other weekend
free to themselves to attend to personal affairs and not
have to work so much.

* * *

When her situation changes, I think it would be
reasonable to change it so that he would—so that dad
would go to—you know—just the usual alternating
weekends, Friday night until Sunday night.

[¶10.] Additionally, the elimination of the overnight during the weekdays

was unsupported by the record. Certainly, Jeffrey's fitness and relationship with

his child, as recognized under the court's original order, was not exclusively
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determined by Amanda's weekend work schedule. The corresponding reduction in

Jeffrey's parenting time and how this impacted the best interests of the child was

not considered anywhere in the record; this constitutes an abuse of discretion. The

error is only compounded by the internal inconsistencies that appear in the

noncustodial parenting time order as demonstrated by the parties' confusion as to

the effect of the weekend work clause.

[¶11.] Therefore, we reverse and remand for the circuit court to reconsider

noncustodial parenting time with due regard to the best interests of the child in

light of the parties existing work schedules and to render appropriate supportive

findings.

Appellate Attorney Fees

[¶12.] Amanda's attorney has filed a request and submitted an itemization

for appellate attorney fees in this matter. See SDCL 15-26A-87.3. Jeffrey has not

filed a request for appellate attorney fees. Because we reverse and remand,

Amanda's request for attorney fees is denied.

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

MEIERHENRY, and SEVERSON, Justices, participating.

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