McCarty v. McCarty

2015 SD 59, 867 N.W.2d 355, 2015 S.D. 59, 2015 WL 4136241
South Dakota Supreme Court·Decided July 8, 2015·No. 26957·Published·Cited by 2 cases

Opinion

GILBERTSON, Chief Justice.

[¶ 1.] Dr. Craig McCarty (Father) appeals after the circuit court changed primary physical custody of the parties’ two children, N.M. and C.M., to Kimberly McCarty (Mother). Father argues on appeal that the circuit court erred when it found that a substantial change in circumstances was not required to change custody. Father also argues that the court erred when it found that returning primary physical custody to Mother was in the best interests of the children based on a substantial change in circumstances. We affirm.

Facts and Procedural History

[¶ 2.] Father and Mother divorced in July 2007. At the time of the divorce, the parties agreed to share joint legal custody of N.M. and C.M., with Mother having primary physical custody. After the divorce, Mother maintained residence in Box Elder, South Dakota, and Father moved to Gillette, Wyoming. The children would usually spend the school year in Box Elder and then stay in Gillette during the summer. Mother had primary physical custody of the children for four years until Father filed a petition for a change of custody in June 2011. Father alleged that Mother was not adequately addressing the children’s special needs and was not honoring Father as a parent.

[¶ 3.] On June 6, 2012, following a contested trial, the circuit court changed primary physical custody from Mother to Father. The court entered findings of fact, conclusions of law, and an order modifying child support and changing custody. In its conclusions of law, the court stated, “Unless otherwise agreed by the parties in writing, the [cjourt will set up a review hearing in May 2013.” The children subsequently moved to Gillette and resided with Father and Dr. Breck McCarty (Stepmother).

[¶ 4.] On May 28, 2013, Mother filed a motion for a change of custody. The court held a two-day trial on August 22 and 23, 2013. After hearing considerable testimony from Mother, Father, Stepmother, Tom Collins (the court-appointed parenting coordinator), and Dr. Jim Simpson (the custody evaluator), the court changed custody from Father back to Mother. The circuit court held that a showing of a substantial change in circumstances was not required because the circuit court had scheduled a “review hearing” one year earlier. The circuit court further held that, even if a substantial change in circumstances was required, a substantial change in circumstances existed in this case based on “the breakup and the contentious dissolution of [Stepmother] and [Father’s] medical group” and “[Stepmother’s] diagnosis in mid-January of stage 4 metastasized breast cancer with cancer now present, in essence, in her liver.” Lastly, the circuit court held, after analyzing the Fuersten-berg factors, that it was in the best interests of the children for Mother to again have primary physical custody. Father appeals.

[¶ 5.] Father raises two issues in this appeal:

1. Whether the circuit court erred in holding that it was not required to find a substantial change in circumstances.
2. Whether it was in the best interests of the children to change primary physical custody back to Mother based on a substantial change in circumstances.

*358 Standard of Review

[¶ 6.] “We review ‘child custody decisions under the abuse of discretion standard of review.’ ” Roth v. Haag, 2013 S.D. 48, ¶ 11, 884 N.W.2d 337, 339-40 (quoting Schieffer v. Schieffer, 2013 S.D. 11, ¶ 13, 826 N.W.2d 627, 633). “An abuse of discretion is a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Id. ¶ 11, 834 N.W.2d at 340 (quoting Schieffer, 2013 S.D. 11, ¶ 14, 826 N.W.2d at 633). “An abuse of discretion occurs in a child custody proceeding when the [circuit] court’s review of the traditional factors bearing on the best interests of the child is scant or incomplete.” Kreps v. Kreps, 2010 S.D. 12, ¶25, 778 N.W.2d 835, 843 (quoting Pietrzak v. Schroeder, 2009 S.D. 1, ¶37, 759 N.W.2d 734, 743). Further, “findings of fact are reviewed under the clearly erroneous standard of review.” Schieffer, 2013 S.D. 11, ¶ 15, 826 N.W.2d at 633. Finally, “this Court gives due regard to the [circuit] court’s opportunity ‘to judge the credibility of witnesses and to weigh their testimony.’ ” Id. (quoting Walker v. Walker, 2006 S.D. 68, ¶ 11, 720 N.W.2d 67, 70-71).

Decision

[¶ 7.] 1. Whether the circuit court erred in holding that it was not required to find a substantial change in circumstances.

[¶ 8.] The circuit court held that Mother was not required to show a substantial change in circumstances because the court intended to hold a “review hearing” in May 2013. Father argues that the two-day August 2013 hearing was more than a “review hearing.” It was a “contested proceeding,” which required Mother to “show a substantial change of circumstances” because the circuit court did not grant interim custody to Father in 2012, but rather permanent physical custody. See Benson v. Loffelmacher, 2012 S.D. 75, ¶ 21, 824 N.W.2d 82, 86. We agree.

Free access — add to your briefcase to read the full text and ask questions with AI

McCarty v. McCarty, 2015 SD 59, 867 N.W.2d 355, 2015 S.D. 59, 2015 WL 4136241 (S.D. 2015).

2015 SD 59 (McCarty v. McCarty) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Flint v. Flint
2022 S.D. 27 (South Dakota Supreme Court, 2022)
Moulton v. Moulton
2017 SD 73 (South Dakota Supreme Court, 2017)