Price v. Price

2000 SD 64, 611 N.W.2d 425, 2000 S.D. LEXIS 65
CourtSouth Dakota Supreme Court
DecidedMay 17, 2000
DocketNone
StatusPublished
Cited by24 cases

This text of 2000 SD 64 (Price v. Price) 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
Price v. Price, 2000 SD 64, 611 N.W.2d 425, 2000 S.D. LEXIS 65 (S.D. 2000).

Opinions

SABERS, Justice.

[¶ 1.] Melinda Price motioned for change of custody and an increase in alimony. The trial court granted both motions and awarded $338 in child support to Melinda. Tom Price appeals. We reverse and remand the change of custody and child support award, but affirm the.alimony award.

PACTS

[¶ 2.] Tom and Melinda were married June 17, 1972. Shortly thereafter, the couple moved from New York to South Dakota so Tom could practice as a licensed psychologist in Aberdeen. He is a partner in the Northern Plains Psychological Services clinic, which is located in Aberdeen with branch offices in Watertown, Redfield and Waubay.

[¶3.] The couple have four children: Zachary, born April 12, 1977; Adam, born January 27, 1979; Joshua, born March 2, 1982; and Stuart, born April 5,1988.

[¶ 4.] After 21 years of marriage, Tom filed for divorce in July of 1993. Melinda initially sought sole custody of the four minor children. Tom opposed and sought joint custody of the children with physical custody awarded to him. An extensive custody evaluation was conducted in August of 1994. As part of the evaluation, Stuart, be.cause of his young age of six, was tested to “obtain some objective information about [his] parental preference.” Stuart completed four of the seven tests with the results showing that his preferred parent was his father. Stuart also “portrayed himself as being very close to, and protected by, Josh.” The three older children were personally interviewed and indicated that “they did not want to continue living with their mother’s anger, and that they felt closer to, and safer with, their father.” During a home visit with Melinda, the evaluator noted:

Mrs. Price spent more than 30 minutes discussing her angry feelings about the ending of the marriage, information about Mr. Price’s father’s suicide, and allegations that Mr. Price had wanted hér to have an abortion instead of giving birth to Stuart. All of this was done in the presence of Stuart who appeared to be very sad, and somewhat dissociative, during this discussion. Mrs. Price also went on at length about Mr. Price’s attempts to turn the children against her, as well as the difficulties she had experienced financially due to him not giving her enough money.

After interviewing several references provided by both parties, the evaluator recommended that Tom have sole custody of the two oldest boys, Zachary and Adam, and that Tom and Melinda share joint custody of Josh and Stuart with primary physical custody in Tom.

[¶ 5.] Instead of contesting the custodial recommendations, Melinda agreed that she and Tom would share joint legal custody of all four children with physical custody in Tom. However, the older two children were not required to abide by the visitation schedule and were allowed to choose if and when they visited Melinda. The marital property was divided and Melinda was awarded a lump sum of $27,203 in restitu-tional alimony, $1 in regular alimony and rehabilitative alimony in an amount offsetting her child support obligation to Tom. The Judgment and Final Decree of Divorce was filed on October 6,1994.

[¶ 6.] Melinda moved to Rochester, New York shortly after the divorce. On February 26, 1996, Melinda motioned for a change in physical custody of Stuart and for an increase in alimony. During the [429]*429hearing, the trial court reviewed the 1994 custody evaluation and transcripts of two telephone conversations between Melinda and Stuart and Josh. The transcripts reveal that Melinda was: pressuring Stuart to tell his teachers that he wanted to live with his mom; disparaging Tom to the children; and trying to alienate their affections for Tom. Finding it was in Stuart’s best interest to remain with Tom, the trial court denied Melinda’s motion for a-change in custody.1 However, the trial court acknowledged Melinda’s need for educational training and awarded her $600 in rehabilitative alimony beginning June 1996 and ending June 1998.2

[¶ 7.] After completing a two-year training course, Melinda filed, on June 22,1998, a second motion to change custody of Stuart and a motion to increase alimony. The matter was heard April 28-29, 1999.

[¶ 8.] At this time, Zachary was married, working and attending' college full-time and maintaining an independent residence in Aberdeen. The second oldest son, Adam, was attending college full-time and working two part-time jobs, but still resided at home. Joshua, 17-years-old, was a junior in high school and worked part-time. Stuart was 11-years-old and was in the fifth grade.

[¶ 9.] The trial court interviewed Stuart in chambers for 25 minutes, with both counsels present. During this interview, Stuart “expressed a strong preference to live with his mother” in Rochester, New York due to his “close relationship” with her and his feeling that Melinda’s boyfriend, Clark, whom Melinda lived with, would provide a “safe environment” for him.

[¶ 10.] In evaluating Stuart’s care under Tom, the trial court found: (1) the three older siblings do not regularly interact with Stuart; (2) Stuart is home alone for a minimum of two and one-half hours after school; (3) Tom’s relationship with his girlfriend consumes much of Tom’s time;3 and (4) Tom does not spend any time trying to develop Stuart’s reading skills beyond putting him in special education classes.

[¶ 11.] Conversely, the trial court found that Melinda was able to provide “special attention” to Stuart by spending more time with him and working with him on his learning disability.1 The court also noted that Stuart would “flourish” if placed with Melinda because her work schedule permitted her to be available to Stuart more often.

[¶ 12.] The trial court concluded that it was in Stuart’s best interest that Melinda be awarded primary physical custody of Stuart, conditioned on Melinda-moving out of her boyfriend’s home, maintaining her own apartment in New York and attending to Stuart’s spiritual needs. The court also concluded that Melinda’s alimony be increased to $1,000 per month and that Melinda receive $338 in monthly child support payments from Tom.

[¶ 13.] Tom motioned for reconsideration or new trial. A hearing was held on May 27, 1999 at which Tom told the court that Stuart met with a certified professional counselor in Sioux Falls after the court ordered that physical custody be changed to Melinda. The report reflects that Stuart was prompted, for years, by Melinda to say he wanted to live with her and he was stunned that the trial court awarded custody to Melinda. A transcript of a [430]*430post-trial telephone conversation between Stuart and Melinda was also presented to the trial court. During this conversation, Stuart admitted that he was' uncertain whether he actually wanted to live in New York. In response, Melinda told Stuart “everybody is telling you things that aren’t true” and that he would love their new apartment once he got there because there were “a thousand” children in the complex and it had three swimming pools on site. The trial court determined there was no evidence of Melinda .exerting influence over Stuart and denied the motion for reconsideration or new trial.

[¶ 14.] Tom also motioned the court to stay the transfer of custody, which was scheduled for June 1, 1999, three days from the date of this hearing.

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Bluebook (online)
2000 SD 64, 611 N.W.2d 425, 2000 S.D. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/price-v-price-sd-2000.