Hogen v. Pifer

#24760-a-SLZ

2008 SD 96

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

KIRK HOGEN, Plaintiff and Appellee,

v.

ELIZABETH (HOGEN) PIFER Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
CLAY COUNTY, SOUTH DAKOTA

* * * *

HONORABLE STEVEN R. JENSEN
Judge

* * * *

MELISSA B. NICHOLSON of
Nicholson & Nicholson Attorneys for plaintiff
Sioux Falls, South Dakota and appellee.

KAREN L. CREW
MICHAEL B. CREW of
Crew and Crew Attorneys for defendant
Sioux Falls, South Dakota and appellant.

* * * *
CONSIDERED ON BRIEFS
ON AUGUST 26, 2008

OPINION FILED 10/08/08
#24760

ZINTER, Justice

[¶1.] Approximately one year after her divorce, Elizabeth Pifer moved the

circuit court to relocate the parties’ minor son from South Dakota to Illinois. The

circuit court denied Pifer’s motion, and Pifer appeals. We affirm.

I

[¶2.] Kirk Hogen and Elizabeth (Hogen) Pifer entered into a stipulation and

agreement for divorce on May 19, 2006. At the time, both parties lived in

Vermillion. Under the divorce decree, they shared joint legal custody of their son

Jake (age eleven at the time). Pifer had primary physical custody, and Hogen had

rights of visitation. Hogen’s visitation included two evenings during the week and

alternating weekends. Every other mid-week visitation included an overnight.

Neither party was prohibited from moving more than a de minimus distance from

the Vermillion area after the divorce.

[¶3.] One year after the divorce, Pifer sent Hogen a notice of intent to

relocate Jake to Channahon, Illinois so that she could live with her boyfriend Paul

Pifer, whom she planned to marry that summer. Hogen objected and moved for a

hearing on the matter. Thereafter, Pifer formally moved to allow the relocation.

[¶4.] The parties retained Dr. Andre Clayborne to conduct an evaluation 1 of

Pifer’s request to relocate. Before Dr. Clayborne’s evaluation was completed in

October of 2007, Pifer married Paul Pifer. In his evaluation, Dr. Clayborne opined

that Jake was currently living in the best arrangement in Vermillion, an

1. Dr. Clayborne had performed the initial home study for the divorce.

-1-
#24760

arrangement that involved maximum contact with both parents. Dr. Clayborne also

opined that he “was not convinced that the move would serve Jake’s best interest in

any way. It would be [my] opinion that under the given circumstances that Jake is

thriving in his current environment.” Dr. Clayborne did, however, note that

because of Jake’s close emotional connection to Pifer, if Pifer were to move to

Illinois, it would be in Jake’s best interest to move with her.

[¶5.] A court trial was held on October 25-26, 2007. At trial, Dr. Clayborne

focused on Pifer and Jake’s close relationship, testifying that Hogen and Jake “have

a good relationship as well, but . . . the emotional connection is with mom.” The

circuit court acknowledged Dr. Clayborne’s evaluation and trial testimony favoring

Pifer. Although the court indicated it did “not have any real quarrel with Dr.

Clayborne’s decision in terms of emotional attachment,” the court observed that Dr.

Clayborne downplayed the attachment Jake had with his father. The court further

observed that it couldn’t “say anything negative about either parent,” and found

that “[i]t’s very clear both parties are fit.”

[¶6.] Regarding Jake (who had turned thirteen the day before trial), the

court found that he was “well-adjusted,” did “well in school and otherwise,” and

“appear[ed] to have a good handle on life.” The court noted that Jake was in

seventh grade, was an “A” student and “star athlete,” had friends and extended

family in Vermillion, and was “very popular.” After further noting that Jake had

grown up in Vermillion, the court found that moving to Illinois “would be a

significant adjustment” and would “disrupt” his stability. The circuit court was also

concerned about visitation problems for Hogen if Jake moved. The court explained

-2-
#24760

that Hogen worked as a golf professional, and summer was his busy season

requiring approximately sixty-hour work weeks. Pifer, on the other hand, had two

and one-half months off during the summer. The court opined that Pifer’s proposed

move to Illinois, which required summer visitation with Hogen in Vermillion, would

be counter-intuitive because Hogen would be spending so much visitation time

working.

[¶7.] The court also noted that although Jake expressed a preference to

move, he had not spent any meaningful time in Illinois. Further, following its own

personal interview of Jake, the court found that Jake did not have a reason for his

preference. The court found that “[Jake’s] preference relat[ed] more to his desire to

please his mother than his own interests in the case.”

[¶8.] The court ultimately found that based on Jake’s age, his involvement

in school, his connection with the community, and his relationship with Hogen,

stability favored Jake living in Vermillion. The court ultimately concluded that it

was not in Jake’s best interest to move to Illinois.

II

[¶9.] SDCL 25-5-13 provides that “[a] parent entitled to the custody of a

child has the right to change his residence, subject to the power of the circuit court

to restrain a removal which would prejudice the rights or welfare of the child.”

This statute requires the circuit court to determine whether it is in the best

interest of the child to relocate out of state. Maxner v. Maxner, 2007 SD 30, ¶23,

730 NW2d 619, 625. In our review of a custody decision, “we decide only whether

the court abused its discretion.” Id. ¶11, 730 NW2d at 622. Abuse of discretion “is

-3-
#24760

a fundamental error of judgment, a choice outside the range of permissible choices,

a decision, which, on full consideration, is arbitrary or unreasonable.” Id. This

standard does not mean that a trial court’s custody decision remains inviolate.

“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 [the situation] firsthand.” Id.

III

[¶10.] At the hearing, Pifer testified that she would not relocate to Illinois if

the court would not allow Jake to move with her. Pifer first argues that the circuit

court improperly focused on this testimony in denying her motion to relocate. She

contends that the circuit court’s consideration of her willingness to stay in

Vermillion isolated the “maximum continuing contact” factor to the exclusion of

other relevant factors. She also contends that affirming the circuit court’s decision

would result in no out-of-state relocations. We disagree with both contentions.

[¶11.] In Zepeda v. Zepeda, this Court rejected reliance on a single factor in

favor of a balanced consideration of multiple factors when making a custody

determination. 2001 SD 101, ¶15, 632 NW2d 48, 54 (citing Fuerstenberg v.

Fuerstenberg, 1999 SD 35, ¶31, 591 NW2d 798, 809). Those factors generally

include fitness, stability, primary caretaker, child’s preference, harmful parental

misconduct, separating siblings, and substantial change in circumstances.

Fuerstenberg, ¶¶24-33, 591 NW2d at 807-10.

[¶12.] Contrary to Pifer’s argument, this case is unlike Fortin v. Fortin, 500

NW2d 229 (SD 1993). In that case the circuit court “ignore[d] several factors” and

-4-
#24760

prohibited an out-of-state relocation “for the sole reason that the move would

disrupt the noncustodial father’s visitation with and influence over his son[.]” Id. at

232. In this case, the circuit court issued seventy-three findings of fact and fourteen

conclusions of law reflecting a balanced consideration of all relevant factors. The

court’s consideration of Pifer’s willingness to stay in Vermillion was mentioned only

once, and the court did not focus on “maximum continuing contact.”2 Instead, the

court considered a number of factors including Jake’s age, his relationship with his

father, his involvement in the school and community, his friends and extended

family in Vermillion, and the finding that a move to Illinois would be a significant

adjustment disrupting his stability. Therefore, the circuit court did not erroneously

focus solely on a custody arrangement that would ensure maximum contact with

both parents.

[¶13.] For the same reason, the circuit court’s decision is no precedent for a

blanket rule prohibiting all out-of-state relocations. On the contrary, the court’s use

of a balanced approach considering a number of factors cannot be precedent for a

per se rule. Furthermore, the circuit court specifically noted that this was the

unusual case where both parents had spent considerable effort successfully co-

parenting Jake, which enabled Jake to thrive and succeed in the Vermillion

community.

[¶14.] Pifer also argues there was insufficient evidence for the circuit court to

deny her motion to relocate. Pifer argues that Dr. Clayborne opined that it would

2. In fact, the circuit court never utilized that phrase in either its findings or
conclusions of law.

-5-
#24760

be in Jake’s best interest to move with her to Illinois, and therefore “there is no

evidence upon which the [circuit] court could have concluded that it was in Jake’s

best interests to remain in Vermillion with his father if his mother did relocate.”

Dr. Clayborne, however, indicated in his October 2007 follow-up evaluation that it

would not be in Jake’s best interests to move:

On the issue of moving, it is apparent that the move is being
made to benefit Liz and Paul. [I] was not convinced that the
move would serve Jake’s best interest in any way. It would be
[my] opinion that under the given circumstances that Jake is
thriving in his current environment. He is a straight “A”
student, a star athlete, has many friends, and is much
respected in the Vermillion community. Currently, he has
access to both of his parents and is able to see them as often as
he likes. From [my] perspective for Jake, he is currently in the
best living arrangement.

Although Dr. Clayborne’s trial testimony was more favorable to Pifer, he essentially

held to his original opinion, only slightly favoring Pifer if the move was made. Dr.

Clayborne testified:

You know, again I struggled with that particular concept. . . . I
think I made the statement inside of the report, realistically if
both parents are staying in town or were to stay in town, this is
probably the ideal situation for him. The move I don’t
necessarily see as being in his best interest per se, but again
weighing that – between that and the emotional connection
with his mom, I guess I would err on the side of placing him
with his mom.

(Emphasis added).

[¶15.] Considering all of Dr. Clayborne’s opinions together with the circuit

court’s considerations, there was substantial evidence to support the court’s

decision. Further, this is a case in which the court recognized that both parents had

done an excellent job of co-parenting for the benefit of their son. As we stated in

-6-
#24760

Maxner, “‘[c]hoosing between two satisfactory options falls within a judge’s

discretion.’” 2007 SD 30, ¶11, 730 NW2d at 622 (quoting Arneson v. Arneson, 2003

SD 125, ¶14, 670 NW2d 904, 910). This is such a case.

[¶16.] Hogen submitted a motion for appellate attorney fees. The motion is

accompanied by an itemized and verified statement of the costs incurred pursuant

to SDCL 15-26A-87.3. An award of appellate attorney fees is permissible if they are

accompanied by a verified, itemized statement of the legal services rendered and if

the attorney fees are otherwise allowable. Id. Attorney fees are allowable in

domestic relation cases, “consider[ing] the property owned by each party, the

relative incomes, the liquidity of the assets and whether either party unreasonably

increased the time spent on the case.” Barnes v. Matzner, 2003 SD 42, ¶24, 661

NW2d 372, 379 (additional citation omitted). These financial factors do not appear

in this record, and there does not appear to be evidence that either party has

proceeded unreasonably. We also “examine the fee request[ ] from the perspective

of whether the party’s appellate arguments carried any merit.” Arneson, 2003 SD

125, ¶38, 670 NW2d at 917. Considering the closeness of this case involving two fit

parents, we deny Hogen’s motion.

[¶17.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and

MEIERHENRY, Justices, concur.

-7-