Van Duysen v. Van Duysen

2015 SD 84, 871 N.W.2d 613, 2015 S.D. LEXIS 146, 2015 WL 6750137
CourtSouth Dakota Supreme Court
DecidedNovember 4, 2015
Docket27237
StatusPublished
Cited by2 cases

This text of 2015 SD 84 (Van Duysen v. Van Duysen) 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
Van Duysen v. Van Duysen, 2015 SD 84, 871 N.W.2d 613, 2015 S.D. LEXIS 146, 2015 WL 6750137 (S.D. 2015).

Opinion

SEVERSON, justice.

[¶ 1.] Travis Van Duysen .appeals the circuit court’s grant of primary physical custody of his two children to their mother Jennifer Van Duysen. Travis asserts that the court abused its discretion when it relied on findings that were unsupported by the evidence. We affirm. ,

Background

[¶ 2.] Jennifer and Travis Van Duysen were married in 2007. They have two minor children together, a daughter and a son. Their daughter was born in. 2005. Jennifer and the daughter lived with Jennifer’s parents for some time until Jennifer and Travis married. Their son was bom in 2010. In 2011, Travis filed for divorce. Shortly before Travis filed for divorce, Jennifer and the children left the marital home. The details of the argument precipitating the separation were disputed at trial. Jennifer alleges that Travis held her up by the neck; .Travis denied, this but admitted he grabbed her sweatshirt and spun her around to talk to him. Eventually, the parties agreed to divorce in 2014 on the grounds of irreconcilable differences.

[¶ 3.] A two-day court trial was held on June 30- and July 1, 2014. The issues before the court were custody, visitation, child support,, attorney fees, and alimony. A home study evaluation recommended granting Travis primary physical custody. The evaluators 1 found Travis to be the favored parent based on the fitness and harmful parental misconduct categories of their evaluation. They found Jennifer to be the favored parent in the category of primary caretaker. Finally, the evaluators determined that both parents were equally able to provide stability, noted that child preference was not applicable, and recommended that the children remain together. The court granted Jennifer primary physical custody. Travis appeals. The sole issue on appeal is whether the court abused its discretion in awarding primary physical custody of the. children to Jennifer. Travis contends that the court based its decision on findings that were not supported by evidence, thereby abusing its discretion.

Standard of Review

[¶ 4.] We review child custody decisions under the abuse of discretion standard. Pietrzak v. Schroeder, 2009 S.D. 1, ¶ 37, 759 N.W.2d 734, 743. “The credibility of witnesses and the weight afforded to their testimony is also within the discretion of the [circuit] court.” Id. “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. The broad discretion of a trial court in making child custody decisions will only be disturbed upon a finding that the [circuit] court abused its discretion.” Id.

Analysis

[¶ 5.] After the two-day trial, the circuit court noted that the home study evaluation mirrored the Fuerstenberg factors, and it discussed each finding, explaining whether it agreed or disagreed based on “the evidence, the credibility, [and] the testimony[.]” See Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, 591 N.W.2d 798. The court determined that the evaluators’ decision placed great weight on two incidents that were testified to at length dur *615 ing trial. One such incident involved. a dispute at a Christmas program. ■ Travis and his parents took the children to a local church Christmas program. Jennifer came later to pick the children up because Travis’s visitation was over. Jennifer testified that she asked her daughter to change her clothes so that the clothes could be returned to Travis. The daughter wanted to keep her clothes, and a tense situation and disagreement between Jennifer, Travis, and the children followed. Many of the details of the incident were disputed at trial. Jennifer allegedly yelled at the children and Travis and then stormed out of the church with the children crying.

[¶ 6.] The other incident involved what the parties later admitted was an issue of miscommunication. On one of Travis’s'visitation days, he was late to pick up the children. He failed to inform Jennifer that he was running late. Because Jennifer needed to get to work, she left the children at her parents’ house. However, she did not tell Travis where they were until an hour and a half after his scheduled pick-up time. Travis waited, but by the time she called he had already contacted the police, who .escorted him to Jennifer’s parents’ house to get the children.

[¶ 7.] The court expressed concern that the evaluators’ recommendation based on these two incidents was a “simplistic view of the facts” and that the incidents did not directly address how the children were eared for or how they interacted with people. The court noted .that Jennifer’s behavior was not ideal, but it also stated that it was concerned with the incidents being used to “tip the scales” in favor of Travis. In its findings of fact, the court stated that it did not place great weight on those two incidents that occurred during the parties’ three-year divorce process.

[¶ 8.] Ultimately, the court determined that it was in the best interests of the' children to remain with Jennifer. 2 It discussed the facts relevant to fitness,- stability, primary caretaker, child’s preference, harmful parental misconduct, and separation of siblings. It noted that the daughter, the eldest child, was doing very well in school and that she was receiving counseling for her benefit. It further found that the counselor had no concerns about Jennifer’s parenting. The counselor, had not seen any injuries to the daughter or received any negative comments from her about Jennifer. This contradicted the home study’s reiteration of negative comments the daughter made to the evaluators when they talked to her at Travis’s home.

[¶ 9.] As to the mental and physical health of the parties, the court stated that it was “disregarding” the evaluators’ finding that Travis was the favored parent in this category. The court noted that the evaluators based their finding, in part, on other people’s observations that the children acted differently when their father would come tó get them depending on whether Jennifer was present or not. The court believed that this indicated tension between the parents rather than .the fact that there is a problem with Jennifer.

[¶ 10.] The court found that the favoring of Travis by the evaluators in the category of harmful parental misconduct also went back to the, two incidents discussed above. The court explained that despite those incidents, which did not reflect ideal parenting, placement of the children in either home would not cause injury, damage, or destruction to the children. *616 Instead, the court stated that it was placing great weight on Jennifer being the primary caregiver and the fact that the children need stability.

[¶ 11.] As part of its findings of fact, the court expressed concern that Travis’s income taxes, which had been submitted into evidence, reflected some “questionable” deductions. 3

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Bluebook (online)
2015 SD 84, 871 N.W.2d 613, 2015 S.D. LEXIS 146, 2015 WL 6750137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-duysen-v-van-duysen-sd-2015.