Haak v. Haak

323 N.W.2d 128, 1982 S.D. LEXIS 366

• Court: South Dakota Supreme Court
• Decided: August 18, 1982
• Docket: 13550
• Status: Published

Opinions

DUNN, Justice.

The husband, Craig Haak, appeals from a judgment of divorce which granted custody of the children to his former wife, Renee Denise Haak. We reverse the award of custody to the wife.

At the time the divorce action was commenced the parties had two children: a daughter age seven and a son age five. During the marriage Renee had romantic interests in several men. Meetings with these men commonly occurred in the Haaks’ home while the children were there but Renee was just as often absent from the home to meet other men. Renee admitted her romantic episodes to members of the community. The children were aware that their mother was “messing around” with a “boy friend” and they expressed their disapproval of the situation. The daughter stated that she did not want one of her mother’s paramours for her daddy. There was also evidence that Renee failed to supervise the children.

The court found that Craig had made threats of suicide and threats to burn down the house. Only a single, insubstantial suicide threat appears in the record, however. In addition, only Renee testified to Craig’s threats to burn down the house. These threats occurred when Craig became frustrated with home repairs. He did nothing to carry the threats out. Finally, because of Craig’s various work endeavors as a part-time farmer, sheepgrower, lawyer and policeman, the court found he had a whimsical attitude toward work. Even with these faults a number of witnesses testified that Craig had an excellent relationship with his children. Nevertheless, custody was awarded to Renee on the basis of the court’s finding of Craig’s lack of stability.

Claiming Renee’s conduct made her unfit as a mother, Craig contends that the court abused its discretion in awarding custody of the children to her.

Both the children made comments which inferred that they were aware of their mother’s conduct and its impropriety.

This court has held that where there is no evidence of a demonstrable effect of a parent’s marital misconduct upon the child, it does not follow that the parent is an unfit person to have custody and that an award of custody to that parent is not in the best interest and welfare of the child. Haskell v. Haskell, supra [279 N.W.2d 903]; Holforty v. Holforty, supra [272 N.W.2d 810]; Spaulding v. Spaulding, 278 N.W.2d 639 (S.D.1979); Kester v. Kester, 257 N.W.2d 731 (S.D.1977). The harmful effect of marital misconduct is self-evident, however, if it is committed in the presence of a child old enough to see and recognize the improprieties. Haskell v. Haskell, supra; Spaulding v. Spaulding, supra.

Madson v. Madson, 313 N.W.2d 42, 43-44 (S.D.1981).

The court’s primary consideration when awarding custody is the best interest of the children and not the shortcomings of the custodial parent. SDCL 30-27-19; Watt v. Watt, 312 N.W.2d 707 (S.D.1981); Kester v. Kester, 257 N.W.2d 731 (S.D.1977). In determining this question the court exercises broad discretion which must have a sound and substantial basis in the testimony. Masek v. Masek, 89 S.D. 62, 228 N.W.2d 334 (1975). Craig’s threats to burn the house do not have such a basis. The court’s finding concerning Craig’s suicide threat is clearly erroneous. SDCL 15-6-52(a); Kester v. Kester, supra. Moreover, there is no evidence to prove that Craig’s insubstantial suicide threat or whimsical work attitude affected his good relationship with his children. Watt v. Watt, supra; Kester v. Kester, supra. These shortcomings are not of such a sound and substantial nature as to deny the father custody or affect the best interests of the children.

The children were able to recognize the impropriety of their mother’s conduct while they had a good relationship with their father unaffected by his shortcomings. For this reason it was in the children’s best interest that their father be awarded custody. The trial court abused its discretion in awarding custody to the mother.

The judgment of divorce, insofar as it awarded custody' to the wife, is reversed and remanded.

MORGAN and HENDERSON, JJ., concur. WOLLMAN, C.J., and FOSHEIM, J., dissent.