Hogen v. Pifer

2008 SD 96, 757 N.W.2d 160, 2008 S.D. LEXIS 134, 2008 WL 4517805
CourtSouth Dakota Supreme Court
DecidedOctober 8, 2008
Docket24760
StatusPublished
Cited by11 cases

This text of 2008 SD 96 (Hogen v. Pifer) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hogen v. Pifer, 2008 SD 96, 757 N.W.2d 160, 2008 S.D. LEXIS 134, 2008 WL 4517805 (S.D. 2008).

Opinion

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 (Ho-gen) 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 midweek 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 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. Clay-borne 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. Clay- *163 borne’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 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 Ho-gen 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 N.W.2d 619, 625. In our review of a custody decision, “we decide only whether the court abused its discretion.” Id. ¶ 11, 730 N.W.2d at 622. Abuse of discretion “is 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 *164 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 rebanee on a single factor in favor of a balanced consideration of multiple factors when making a custody determination. 2001 SD 101, ¶ 15, 632 N.W.2d 48, 54 (citing Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 31, 591 N.W.2d 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 N.W.2d at 807-10.

[¶ 12.] Contrary to Pifer’s argument, this case is unlike Fortin v. Fortin, 500 N.W.2d 229 (S.D.1993). In that case the circuit court “ignore[d] several factors” and 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.

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Bluebook (online)
2008 SD 96, 757 N.W.2d 160, 2008 S.D. LEXIS 134, 2008 WL 4517805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hogen-v-pifer-sd-2008.