Quinn v. Mouw-Quinn

1996 SD 103, 552 N.W.2d 843, 1996 S.D. LEXIS 110
CourtSouth Dakota Supreme Court
DecidedAugust 14, 1996
DocketNone
StatusPublished
Cited by10 cases

This text of 1996 SD 103 (Quinn v. Mouw-Quinn) 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
Quinn v. Mouw-Quinn, 1996 SD 103, 552 N.W.2d 843, 1996 S.D. LEXIS 110 (S.D. 1996).

Opinions

[845]*845GILBERTSON, Justice.

[¶ 1] Tamara S. Quinn (Tamara) appeals the provisions of a divorce decree granting Patrick G. Quinn (Patrick) visitation privileges with one of her children, Samantha, and obligating Patrick to pay child support for that child. We affirm.

FACTS

[¶ 2] The facts of this case are not in dispute and are submitted under an agreed statement of the record. The parties were married in 1984 and divorced in 1986. No children were born of this first marriage. On November 15, 1988, Tamara gave birth to a daughter, Samantha. Patrick is not the father of Samantha. The parties remarried in 1989 and two children were subsequently born during the second marriage, Jacob (dob 5-25-90) and Connor (dob 8-8-91).

[¶ 3] After the first divorce, when Tamara became pregnant with Samantha, she asked Patrick for help although he was not the father. Patrick attended child birth classes and supported Tamara. Upon remarriage in 1989, Patrick accepted Samantha as his own child. To this day, Samantha knows none of the circumstances of her heritage. Patrick has cared for Samantha as a dependent and carries her on his insurance policies. Samantha refers to Patrick as “Daddy” and he is the only father she has ever known. In short, the circuit court found that Patrick and Samantha have established a parent-child relationship.

[¶ 4] On November 4, 1993, Patrick served Tamara with a summons and a complaint for divorce in which he sought custody of all three children. Tamara answered and counterclaimed for custody of the children. The divorce was tried before the circuit court and, on November 15, 1994, the court entered its findings of fact, conclusions of law and judgment and decree of divorce. Custody of the children was awarded to Tamara subject to Patrick’s rights of reasonable visitation. The trial court found that it would be in the best interests of Tamara’s children for Patrick to have visitation with Samantha. Patrick was granted visitation with Samantha on the same schedule as his visitation with the other children. The circuit court also found that Patrick should pay child support to Tamara for the support of Samantha as well as Jacob and Connor. The divorce decree was accordingly entered and this appeal followed.

ISSUE ONE

[¶ 5] Did the circuit court err in granting Patrick visitation privileges with Samantha?

[¶ 6] The crux of this issue is whether there is authority for the circuit court to authorize this type of visitation. Patrick argues that such authorization exists as set forth in SDCL 25-1-45.

In an action for divorce, the court may, before or after judgment, give such direction for the custody, care, and education of .the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same. In awarding the custody of a child, the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child’s temporal and mental and moral welfare .... (emphasis added).

[¶ 7] Patrick also points out that SDCL 30-27-23, which statutorily granted a preference to a parent in custody proceedings, was repealed by our legislature in 1993 (1993 S.D.Sess.Laws ch. 213 § 170) and in its place SDCL 29A-5-203 was enacted which now allows “any other interested person” to petition for guardianship and/or conservatorship. Patrick argues these statutory changes allow third parties to seek custody of a child “presumably against the wishes of natural parents.”

[¶ 8] We have held that the right of visitation derives from the right of custody. Cooper v. Merkel, 470 N.W.2d 253, 255 (S.D.1991). However the legislature has clearly noted that one concept is not synonymous with the other.

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Quinn v. Mouw-Quinn
1996 SD 103 (South Dakota Supreme Court, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
1996 SD 103, 552 N.W.2d 843, 1996 S.D. LEXIS 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quinn-v-mouw-quinn-sd-1996.