Severson v. Hutchinson

2013 SD 70, 838 N.W.2d 72, 2013 S.D. 70, 2013 WL 5373000, 2013 S.D. LEXIS 115
CourtSouth Dakota Supreme Court
DecidedSeptember 25, 2013
Docket26521
StatusPublished
Cited by2 cases

This text of 2013 SD 70 (Severson v. Hutchinson) 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
Severson v. Hutchinson, 2013 SD 70, 838 N.W.2d 72, 2013 S.D. 70, 2013 WL 5373000, 2013 S.D. LEXIS 115 (S.D. 2013).

Opinion

WILBUR, Justice.

[¶ 1.] Kenneth Hutchinson (Father) and Bobbie Severson (Mother) are the parents of five children. The trial court awarded primary physical custody of the children to Father. Mother appeals. We affirm.

FACTS AND PROCEDURAL BACKGROUND

[¶ 2.] Mother and Father were married in 1997. Five children were born to the marriage: two daughters, M.L.H. and A.M.H.; and three sons, J.R.H., Z.C.B.H., and M.J.H.

[¶ 3.] In March 2009, Father was removed from the marital home as a result of an investigation by the Department of Social Services. The investigation commenced because of Father’s alleged abuse of one of the children. Father successfully completed the requirements of parenting classes and the allegations of abuse were eventually found to be “unsubstantiated with concern.” * Also during this time, Mother obtained a temporary protection order against Father, but that order was eventually modified to a civil restraining order.

*74 [¶ 4.] In an effort to salvage their marriage following the Department of Social Services’ investigation, the couple and the children began to reside together on the weekends. When efforts to save the marriage failed, Mother filed for divorce in March 2010.

[¶ 5.] In September 2010, however, the couple again reconciled and resided together with their children. This reconciliation period did not last long. The couple eventually divorced by stipulation and the judgment and decree of divorce was filed on December 9, 2010. The parties stipulated to joint legal custody with Mother having primary physical custody of the five children.

[¶ 6.] Also during that time, Mother was having a relationship with another man (new husband), whom she eventually married in 2011. Mother’s relationship with her new husband was often violent. At one point during Mother’s marriage to her new husband, Mother requested a domestic violence protection order against her new husband and a temporary protection order was granted. After Mother filed a motion to dismiss the protection order, the protection order was dismissed.

[¶ 7.] Several of the children have mental and emotional issues. M.L.H., the eldest daughter and child, and J.R.H., the eldest son, would often get into verbal and physical arguments with one another.

[¶ 8.] Following the domestic violence incident between Mother and Mother’s new husband, Father sought both emergency and permanent change of custody for the five children on June 2, 2011. In support of these motions, Father contended that Mother was not parenting the children and not protecting them from Mother’s new husband’s violent behavior.

[¶ 9.] At the emergency custody hearing on June 15, 2011, the trial court heard testimony from Mother and Father and Mother’s friend, Mae Davis. Davis testified that she had concerns about Mother leaving the children alone during the day for several hours at a time and overnight so that Mother could travel out of town to see Mother’s new husband. Davis also stated that Mother would speak negatively about Father in front of the children. Davis further testified that Mother knew that her new husband had a criminal record of domestic abuse and terroristic threats. Davis described the lack of stability and unkempt condition of Mother’s home. By contrast, Davis testified that Father had a stable, structured, and clean home environment for the children. Additionally, Davis told the trial court that Father did not speak negatively about Mother to the children.

[¶ 10.] At the conclusion of the emergency custody hearing, the trial court granted temporary custody of the five children to Father. In doing so, the trial court noted its concerns about Mother’s ability to protect the children from her new husband and Mother’s choice to leave the minor children alone for several hours at a time and overnight so that Mother could visit her new husband. The trial court ordered that Mother have visitation with the children and that a home study be conducted.

[¶ 11.] During the time period between the temporary custody trial and the permanent custody trial, Mother divorced her new husband. Additionally, a few months after Father was awarded temporary custody of the five children, M.L.H. returned to Mother’s home to reside.

[¶ 12.] A three-day custody trial was held in August 2012. The parties, several lay witnesses, a home study evaluator, a psychologist, and a nurse practitioner testified. The trial court concluded that the testimony of Dr. Andre Clayborne, the *75 home study evaluator; Dr. Stephan Lan-genfeld, the psychologist who conducted psychological evaluations on Mother and Father; and John Erpenbach, the nurse practitioner who performed a psychological evaluation on Mother, was “consistent in what they observed and what they recommended.” Dr. Clayborne conducted a home study evaluation, which thoroughly analyzed the applicable Fuerstenberg factors, and recommended that Father retain primary physical care of the five children with Mother having visitation. Dr. Lan-genfeld testified that Mother has “generalized anxiety disorder” with “avoidant, dependent and self-defeating personality characteristics.” He further stated that his “general impression is ... she’s got some stuff that’s going to make it more difficult for her to effectively parent.” Dr. Langenfeld further testified that Father has “obsessive-compulsive and dependent personality characteristics!;,]” but “that [Father] does not appear to be presenting significant emotional or psychological issues that would prevent [Father] from parenting.” He also told the trial court that Father presented an overly positive picture of Father’s current situation, but Father’s response did not invalidate the test. Finally, Erpenbach testified that Mother’s symptoms were consistent with a generalized anxiety disorder. Mother had been prescribed medication for her medical symptoms.

[¶ 13.] Additionally, Carrie Frahm, a friend of the couple, testified that Father “has some of the most exceptional parenting skills that [she had] ever witnessed” and that Father was even-tempered and that Father was able to successfully parent five children by himself. She also testified that she helped clean Mother’s house and that she and Mother were no longer friends because of Mother’s dishonesty as it relates to Father and the children. The trial court found Frahm’s testimony to be the most credible and “her testimony indicate[d] [Father] [was] the more stable and consistent parent.” And during the custody hearing, the trial court remarked that Frahm’s testimony was the most credible because “she had the best opportunity to observe the parties and their interactions with the children[.]”

[¶ 14.] The trial court ultimately awarded joint legal custody and primary physical custody to Father. In doing so, the trial court noted that both parents are fit parents, though neither parent is perfect. The trial court found that while Father “presented] a more calm, stable and consistent demeanor, at least as ... to the ...

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Bluebook (online)
2013 SD 70, 838 N.W.2d 72, 2013 S.D. 70, 2013 WL 5373000, 2013 S.D. LEXIS 115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/severson-v-hutchinson-sd-2013.