Shelstad v. Shelstad

2019 S.D. 24

SANDRA J. SHELSTAD, Plaintiff and Appellant, v. DUANE M. SHELSTAD, Defendant and Appellee.

#28510

#28696

SUPREME COURT OF THE STATE OF SOUTH DAKOTA

CONSIDERED ON BRIEFS ON MARCH 25, 2019

April 24, 2019

#28510, #28696-a-GAS

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT ROBERTS COUNTY, SOUTH DAKOTA

THE HONORABLE JON S. FLEMMER Judge

MICHAEL A. HENDERSON

REBEKKAH J. STEINWAND of

Swier Law Firm, Prof. LLC

Sioux Falls, South Dakota

Attorneys for plaintiff and

appellant.

JONATHAN L. GREEN

Wahpeton, North Dakota

Attorney for defendant and

appellee.

SEVERSON, Retired Justice

[¶1.] Sandra Shelstad brought suit against Duane Shelstad in 2014 for divorce. On May 16, 2014, the circuit court entered a judgment and decree of divorce based on irreconcilable differences, which judgment and decree incorporated the parties' stipulation and agreement regarding property, alimony, child custody, and child support. The stipulation provided that Sandra would have primary physical custody of the parties' minor children. However, shortly after their divorce, issues arose concerning custody, and Duane filed a motion to modify custody to award him primary physical custody of the children. The circuit court granted Duane's motion, and Sandra appeals. We affirm.

Background

[¶2.] Sandra and Duane were married in 2007, and two children were born during the marriage. Sandra has three additional children from previous relationships. In 2014, Sandra commenced an action for divorce against Duane. She sought primary physical custody of the parties' minor children; her three additional children were adults at the time of the divorce. In May 2014, the parties executed a stipulation and agreement regarding property, alimony, child custody, and child support. The circuit court entered a judgment and decree of divorce on May 16, 2014 based on irreconcilable differences and incorporated the parties' stipulation and agreement. The stipulation provided that it would be in the best interests of the children that the parents share legal custody and that Sandra have primary physical custody, subject to Duane's right to reasonable and liberal visitation.

[¶3.] Although the parties were able to agree to the terms of their divorce and child custody, the contentious nature of their relationship (during and after their marriage) led to a lengthy battle to modify the custody arrangement. Sandra sought to prove Duane had a history of domestic abuse and was therefore unfit to have custody. Duane sought to prove that he, not Sandra, should have primary physical custody of the children.

[¶4.] As proof of Duane's abusive nature, Sandra presented evidence that he threw a garbage bag at her in 2011, which struck her and cut her face. Duane claimed he believed the bag only contained diapers, but he did not dispute he threw the bag at her during one of their fights. Sandra also presented evidence that Duane was arrested for simple assault in 2012, after she called law enforcement when Duane pushed her and she fell on top of her teenage son. The charge was dismissed.

[¶5.] After Sandra filed for divorce, she sought multiple protection orders against Duane—to protect herself, not the children. One protection order was granted. The rest were either dropped by Sandra or denied because Sandra failed to meet her burden of proof. In 2014, Duane pleaded guilty to violating a protection order. He had called Sandra's place of work three times and also went there to speak to her. In 2015, Sandra called law enforcement, claiming Duane was disorderly in the exchange of the children. Duane was charged but the charge was dismissed. Sandra, at least twice, contacted the Department of Social Services (DSS) and reported possible abuse of her children by Duane. No abuse or neglect was ever substantiated.

[¶6.] On March 23, 2015, Sandra relocated with the children to Minnesota because she had recently started a relationship with a man from Salol, Minnesota. She informed Duane that her move was authorized pursuant to the parties' stipulation because Duane had been convicted in May 2014 of violating a protection order. Sandra then sought a protection order in Roseau County, Minnesota. The petition was dismissed after a hearing.

[¶7.] On April 2, 2015, Duane sought immediate temporary custody of the children and requested that the South Dakota court modify custody. The court initially denied the temporary order until it could hold a hearing on Duane's motion to modify but ultimately held a hearing and granted temporary custody to Duane. After a later hearing, the court directed the parties to alternate weeks for visitation until a hearing could be held on Duane's request to modify custody. Between May 7, 2015 and July 2016, the court held multiple hearings related to ancillary matters.

[¶8.] In August 2016, Sandra filed a motion to modify visitation, and Duane filed a motion for primary physical custody of the children. After a hearing on August 22, the court left primary physical custody with Sandra until a full evidentiary hearing could be held. Between August 22, 2016 and February 15, 2017, multiple additional hearings were held related to ancillary motions and matters.

[¶9.] On February 15, 2017, the court held an evidentiary hearing on Duane's motion to modify custody. Sandra appeared pro se. Each of her previous five attorneys had sought and obtained permission to withdraw. At the evidentiary hearing, the court heard testimony from Duane, Sandra, a DSS caseworker, a lawenforcement officer, character witnesses for Duane, and the court-appointed child custody evaluator.

[¶10.] Nine months after the hearing, on November 28, 2017, the circuit court issued a twenty-four-page memorandum decision. The court incorporated its memorandum decision into its findings of fact and conclusions of law and order. The court chronicled the parties' motions and the court's hearings spanning the previous three years. Its description of events included details about each filing made by Sandra for protection against Duane. The court also identified Duane's conviction for violating a protection order and the incident involving Duane throwing a garbage bag containing glass at Sandra. In its decision, the court also examined Sandra's other allegations of abuse asserted during the evidentiary hearing. The summary of this background information comprised nine, single-spaced pages of text.

[¶11.] On the question of custody, the court identified that the February 2017 hearing was the first instance in which the court would make a factual custody determination; therefore, Duane did not need to prove a substantial change in circumstances. The court then identified the relevant and necessary factors governing a custody determination, namely parental fitness, stability, primary caretaker, harmful parental conduct, and separation of siblings. The court also examined Sandra's argument that awarding custody to Duane was not in the children's best interest because Duane has a conviction for domestic abuse and, in her view, a history of domestic abuse. See SDCL 25-4-45.5(3).

[¶12.] Although there was no dispute Duane was convicted of violating a protection order, thereby creating a rebuttable presumption that awarding him custody of the children would not be in their best interest, the court found Duane rebutted the presumption "by the greater convincing force of the evidence[.]" The court observed that the conviction arose out of Duane making phone calls to Sandra's work and appearing at her office. The court then examined each alleged instance of abuse identified by Sandra, including the evidence Sandra offered and the testimony of the DSS employee and the law enforcement officer. The court also considered Duane's "interactions with the children, the testimony provided by the witnesses at the hearing and [Duane's] own testimony[.]"

[¶13.] In the court's view, "[w]hile it is clear that Sandra has a history of reporting Duane for abuse, the evidence presented in this matter clearly does not demonstrate by the greater convincing force of the evidence that Duane has a history of domestic abuse." The court observed that "Duane and Sandra have a very unhealthy relationship." But their unhealthy relationship "does not mean that the evidence has demonstrated that Duane has a history of domestic abuse." The court found "that much of Sandra's testimony at this hearing was not credible."

[¶14.] In addressing the specific factors relevant to determining custody, the court found Sandra and Duane equally fit as parents and concluded both could provide for the temporal, mental, and moral welfare of their children. The court also found that neither parent qualified as the primary caretaker because both parents had served as primary caretaker. The court deemed both parents financially capable of providing for their children. However, stability favoredDuane, in the court's view, because "[h]e continues to reside in the same home he was in at the time of the divorce and during the marriage" and he had been more stable in regard to employment. The court remarked that Sandra relocated to Minnesota without being certain of employment.

[¶15.] The court also found Sandra's conduct to be more harmful to the children than Duane's. Sandra involved the children in the custody conflict. Sandra relied on her allegations that Duane was abusive to establish herself as the more suitable primary custodial parent, while Duane brought forth witnesses to attest to his interactions with his children. Sandra used Duane's conviction to move the children over 200 miles away from Duane when "the evidence presented in this case can certainly lead one to conclude that Sandra's move to Minnesota was an attempt to cut Duane out of the children's lives." Sandra did not consider the impact of the move on her children. "Sandra's sole focus seemed to be to establish that Duane was guilty of abusing his children, even though several agencies had determined otherwise."

[¶16.]...