Berger v. Van Winsen

#24501-a-RWS

2007 SD 127

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

HAROLD FREDRICK BERGER, Plaintiff and Appellee,

v.

LORI VAN WINSEN, Defendant and Appellant.

* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA

* * * *
HONORABLE WARREN G. JOHNSON
Judge

* * * *

SUZANNE DARDIS of
Kinney & Dardis, LLP
Spearfish, South Dakota Attorneys for plaintiff
and appellee.

REED C. RICHARDS of
Richards and Richards
Deadwood, South Dakota Attorneys for defendant
and appellant.

* * * *
CONSIDERED ON BRIEFS
ON NOVEMBER 6, 2007

OPINION FILED 12/12/07
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SABERS, Justice.

[¶1.] Harold Berger petitioned for primary physical custody of his six-year-

old son, Nolan. Lori Van Winsen contested Harold’s petition for custody, arguing

she should have primary physical custody. After the circuit court awarded Harold

primary physical custody of Nolan, Lori appealed. We affirm.

FACTS

[¶2.] Harold and Lori met in 1997, through a mutual friend, Grant Lawley.

Lori was teaching in Newell, South Dakota and Harold lived and worked in

Whitewood, South Dakota. Harold and Lori dated casually, but at the end of her

teaching year, Lori did not renew her contract. She moved back to Aberdeen, South

Dakota, in part, to reconcile with a former boyfriend. When this reconciliation fell

through, Lori became extremely depressed, attempted suicide and was hospitalized

for several days.

[¶3.] Lori and Harold remained in contact and in September of 1999, Lori

moved into Harold’s home in Whitewood, South Dakota. Eventually, Lori became

pregnant and gave birth to their child, Nolan, who is the subject of this custody

dispute. The couple never married and eventually, the relationship deteriorated.

Lori suspected Harold of having an affair with one of his employees. Harold asked

Lori to move out in the fall of 2005. Having no home, Lori left Nolan with Harold.

[¶4.] After the break-up, Lori again became depressed. She threatened to

kill Harold and take Nolan away. She drove around during a blizzard, threatening

to harm herself. Shortly thereafter, she checked herself into Rapid City Regional

Hospital for treatment for her depression and suicidal thoughts.

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[¶5.] After her stay in the hospital, Lori’s relatives took her to Watertown to

recover. She wanted to take Nolan to Watertown for two weeks over Christmas.

After Lori’s threats that she would take Nolan and never give him back, Harold was

concerned that Lori would refuse to give Nolan back. Harold obtained legal advice

and had a lawyer draft a stipulation that declared Harold was Nolan’s biological

father and that Harold and Lori would have joint legal custody with primary

physical custody with Harold. The stipulation also outlined visitation. Lori

testified she had ample time to read the document and had time to obtain a lawyer,

had she the money to hire one. Lori’s Aunt Brenda testified she offered to pay for

an attorney. Without consulting an attorney, Lori signed the stipulation after

requesting certain changes be made to the document.

[¶6.] In 2006, she moved back to western South Dakota, moving to Lead. At

this time, Lori had visitation most weekends and Nolan was with Harold during the

week. Lori became dissatisfied with this arrangement and in July of 2006, she

initiated proceedings to change custody. She alleged Harold’s business kept him

away until late at night, she could spend more quality time with Nolan than Harold

and should be the primary caretaker.

[¶7.] In order to determine custody, the circuit court ordered a home study.

As a part of the custody proceedings, Lori swore in an affidavit that “she had no

boyfriend and could spend quality time with Nolan all during the week.” During

the course of the proceedings it was discovered she became engaged to Justin Moore

on September 16, 2006. Lori testified that when she signed the affidavit on July 13,

2006 she knew Moore, but had not started dating him officially until July 22, 2006.

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As a result of this new relationship, the home study was conducted in not only Lori’s

and Harold’s homes in Lead and Whitewood, South Dakota, but also Moore’s home

in Upton, Wyoming. 1

[¶8.] Dr. James Simpson conducted the home study. He found the home and

environment provided by Harold to be much more stable than Lori’s home.

Additionally, in Whitewood, Nolan lives in the only home he has known since birth.

It is a small community that knows Nolan and his paternal grandparents and aunt

live there. Nolan is very attached to his home and relatives. In contrast, Lori has

only lived in Upton for a short time. Moore, his 12-year-old daughter, and Moore’s

brother live in the community, but Lori and Nolan have no biological family there.

Dr. Simpson noted that both parents are good, loving parents, but the instability in

Lori’s life, with the depression, new home, new job, new relationship, made

uprooting Nolan from the home and town he has known his entire life not conducive

to Nolan’s welfare.

[¶9.] The circuit court heard testimony from Lori, Harold, Dr. Simpson and

Lori’s and Harold’s families. It ordered that primary physical custody should

remain with Harold. Lori appeals and raises the following issue:

Whether the circuit court abused its discretion when it determined
primary physical custody of Nolan should remain with Harold.

STANDARD OF REVIEW

[¶10.] In custody disputes,

We review factual determinations under the clearly
erroneous standard. Therkildsen v. Fisher Bev., 1996 SD

1. Van Winsen and Moore planned to be and were married in July of 2007.

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39, ¶8, 545 NW2d 834, 836; Lindquist v. Bisch, 1996 SD 4,
¶16, 542 NW2d 138, 141. Questions of law, including
statutory construction, we decide without deference to the
circuit court’s conclusions. West Two Rivers Ranch v.
Pennington County, 1996 SD 70, ¶6, 549 NW2d 683, 685.

Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶16, 591 NW2d 798, 804. “Between

parents adversely claiming custody, neither may be preferred over the other.” Id.

¶22 (citing SDCL 25-5-7). The circuit court “gauge[s] the credibility of the witnesses

and . . . weigh[s] the significance of their testimony.” Id. (citing Kost v. Kost, 515

NW2d 209, 212 (SD 1994) (additional citation omitted)). “Trial courts possess broad

discretion in deciding the best interests of a child; their decisions will only be

disturbed upon a finding of abuse of discretion.” Price v. Price, 2000 SD 64, ¶18,

611 NW2d 425, 430 (quoting Fuerstenberg, 1999 SD 35, ¶22, 591 NW2d at 807).

[¶11.] Whether the circuit court abused its discretion when it
determined primary physical custody of Nolan should remain
with Harold.

[¶12.] The primary consideration in custody disputes is the best interest of

the child. Id. In determining “which parent is better equipped to provide for the

child’s . . . welfare,” the circuit court may look at several factors, which include: “(1)

parental fitness; (2) stability; (3) primary caretaker; (4) child’s preference; (5)

harmful parental misconduct; (6) separation of siblings; and (7) substantial change

in circumstances.” Id. ¶18.

[¶13.] The circuit court heard testimony from various witnesses and made

findings of fact and conclusions of law. It noted both Lori and Harold were good

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parents. However, the circuit court noted that Nolan’s home environment with

Harold “offers safety, stability and security” and Lori

Lori is unable to offer the same security and stability
offered by [Harold]. She has experienced at least two
failed, serious relationships and Mr. Moore is approaching
his third marriage. Mr. Moore has lived in Upton less
than a year, worked at his present employment for less
than a year. They have live[d] together for approximately
three months and Defendant has been in her present
position for less than a month. If it be presumed, for
purposes of this decision, that they will have a stable
marriage, secure employment, will remain in Upton and
that Mr. Moore’s daughter will remain there as well,
there is still no measurable advantage for Nolan to move
to his mother’s home.

[¶14.] A review of the record demonstrates the circuit court did not abuse its

discretion when determining Harold should retain primary physical custody of

Nolan. Lori claims that Harold owns a mechanic business and he works long hours

and relies on his mother and sister to raise Nolan. She claims that her job in

Gillette as a hotel manager only requires she work from 9 a.m. to 5 p.m. so she

could take Nolan to school at 8 a.m. and be home by 5:45 p.m. so she could spend

quality time with Nolan before he is in bed at 8 p.m.

[¶15.] Despite Lori’s claims, the evidence suggests Harold is just as capable

and does spend as much, if not more time, than Lori could spend with Nolan if she

had primary physical custody. He and other witnesses testified that he drops Nolan

off at school almost every morning. Nolan is picked up from school by his

grandmother or aunt and Harold picks up Nolan from their homes after work.

There was no testimony, besides Lori’s, that Harold works until eight or nine at

night on a regular basis. Dr. Simpson testified he did not get the impression that

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Harold works such late hours and Harold testified as much. Harold also testified

that he has flexibility in owning his business and frequently takes a day off during

the week when Nolan is out of school and spends the day with him. He also attends

all school events. Finally, his shop is one block from his mother’s house so Nolan

usually stops by the shop after school for ten to twenty minutes. 2

[¶16.] Ultimately, the circuit court heard and weighed the testimony and

resolved any conflicts in the testimony in favor of Harold. Moreover, Dr. Simpson

conducted a home study, which included interviews and tests with both Lori and

Harold. He also interviewed Nolan and observed him in all three homes. Dr.

Simpson interviewed and conducted psychological testing on Lori’s and Harold’s

significant others. Simpson concluded, based in part on Lori’s instability that Nolan

should remain within the continuity and comforting home life that he enjoys in

Whitewood. He emphasized that Lori and Harold should work to encourage Nolan’s

relationship with the other parent, to ensure Nolan feels comfortable and that it is

okay to love and be close to both his parents. Simpson noted that Harold did a

better job of encouraging and facilitating Lori’s relationship with Nolan. Based on

this record, there is no showing that the circuit court abused its discretion.

[¶17.] Harold requests attorney’s fees for the appeal in the amount of

$3,150.00. “To determine whether attorney fees are proper in domestic relation

cases, we consider, ‘the property owned by each party, the relative incomes, the

2. Lori also alleged that Harold did not supervise Nolan enough and the shop
was too dangerous for Nolan. However, the testimony and Dr. Simpson’s
home study did not support these allegations.

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liquidity of the assets and whether either party unreasonably increased the time

spent on the case.’” Larson v. Larson, 2007 SD 47, ¶22, 733 NW2d 272, 278

(quoting Dejong v. Dejong, 2003 SD 77, ¶30, 666 NW2d 464, 471 (quoting Peterson

v. Peterson, 434 NW2d 732, 738 (SD 1989))). When we consider these factors as

they relate to this case, we conclude that each party shall bear the responsibility for

their own attorney’s fees.

[¶18.] Affirmed.

[¶19.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

MEIERHENRY, Justices, concur.

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