Miller v. Miller
Miller v. Miller
Opinion of the Court
Debra Miller (Debra) appeals a decree of divorce granting custody of Doyle James Miller (D.J.) to Delwyn Miller (Delwyn) and dividing the marital property.
Facts
Delwyn and Debra were married on September 21, 1979. They had one child during the marriage, D.J., who was seven at the time of divorce. Debra also had a fourteen-year-old daughter, Tina, from a previous marriage and an infant son, Cody. Her boyfriend, James Plueger (Plueger) was Cody’s father.
Delwyn was thirty-seven years of age and employed by Hicks Enterprises in Brookings, South Dakota, at the time of divorce. His weekly net income was $286.71. Debra was thirty-three and unemployed at the time of divorce. She was residing with Plueger who farmed near Verdi, Minnesota.
The marriage of the parties was unstable and there was little communication. Delwyn testified that he had been unfaithful on only one occasion during the marriage, but Debra was unaware of his affair. As the marriage continued to deteriorate, Debra began having an affair with Plueger. In June of 1987, Debra believed she was pregnant with Plueger’s child. She left Delwyn and D.J. because of this belief and the poor condition of the marriage. Debra was one and one-half months pregnant at the time she left.
D.J. remained with Delwyn until the time of divorce in June of 1988. The testimony showed that Delwyn had a good relationship with D.J. and provided for D.J.’s needs after Debra left. There was also evidence that D.J. was doing well in school and that Delwyn took an interest in D.J.’s schooling and helped him in his studies.
Delwyn testified that he began having an intimate relationship with another woman, Kathy Lee (Kathy), following his separation from Debra. He admitted to having sexual intercourse with her at his home, but claimed that D.J. was unaware of this relationship. Further, he indicated that Kathy had stayed over an entire night once, because of bad weather, and that she had slept on the couch. Delwyn admitted that he went out socially two to three nights a week and often became intoxicated. On those evenings, he testified that he would leave D.J. overnight with his uncle and aunt, with whom D.J. enjoyed staying.
Debra was DJ.’s primary caretaker prior to the separation and believed that Delwyn was often too hard on D.J. and inflexible with the child. She testified: that D.J. enjoyed visiting her and often cried when he had to leave and return home to his father; and that D.J. and his half sister Tina had a good relationship and often confided in one another. Delwyn believed Tina and D.J. had a normal brother/sister relationship. Debra also testified that D.J. liked Cody and enjoyed holding and feeding him.
Delwyn brought an action for divorce after Debra left in June of 1987.
1. Compelling reasons to separate the siblings.
Debra argues that the best interests of the child require compelling reasons to sep
We have held that the best interests of the child require compelling reasons to separate siblings. Adam v. Adam, 436 N.W.2d 266 (S.D. 1989); Mayer v. Mayer, 397 N.W.2d 638 (S.D. 1986). Compelling reasons are necessary to separate even half-siblings. Adam, supra; Mayer, supra. In Mayer, we stated:
The evidence shows that the trial court gave no consideration to the profound effects of ending Jennifer’s valuable relationship with her sister. Nor did it provide any persuasive rationale for splitting them up. Justice requires that society exercise its moral duty to insure that children in a family enjoy the right to remain together, to share each others lives, and to grow up together, until such time as necessity and the welfare of the children, itself, requires their separation. ... For the trial court to conclude that it was in Jennifer’s best interest to award custody to Frederick without adequate findings regarding such a crucial consequence of the custody arrangement, “requires reversal.” (citations omitted).
In this case the trial court made a single reference to D.J.’s relationship with Tina, stating that there was testimony the two got along. There are no other references to either Tina or Cody in the findings of fact, conclusions of law or in the memorandum opinion which was incorporated by reference. The court failed to make any findings whether compelling reasons existed to separate the children.
Delwyn distinguishes the present case from Mayer in that the separated sisters in Mayer were only two years apart in age and had grown up together in a close relationship. He argues that while D.J. grew up with Tina, there are seven years separating the children, as Tina is fourteen and D.J. only seven. He claims that under these circumstances compelling reasons are unnecessary to separate the children. Mayer is a bright line rule which requires compelling reasons to separate siblings, regardless of their ages and relationships. However, the ages and relationships of the siblings are factors in determining whether compelling reasons exist to separate them. Adam, supra; Andersen v. Andersen, 399 N.W.2d 363 (S.D. 1987). The failure to consider whether compelling reasons exist to separate the siblings as part of the best interests of the child requires reversal and remand of the custody issue. The trial court should reconsider the best interests of D.J. in light of whether compelling reasons exist to separate D.J. from his half sister, Tina, and his half brother, Cody.
2. Property Division.
Delwyn received the home valued at $35,000,
Reversed and remanded in part and affirmed in part.
. The parties originally entered into a custody, support, and property settlement agreement. However, after Debra hired an attorney, she made a motion to set aside the agreement, which motion was granted.
. Since we are not deciding the merits or the questions raised in Justice Henderson’s special writing, it is better to attempt neutrality and express no opinion thereon.
. Delwyn testified that the valuation of $35,000 was based on his attempt to sell the home for $38,000 and receipt of one offer of $32,000. The trial court apparently found this valuation reasonable.
. Delwyn received approximately $42,000 in property, including the home, subject to debts exceeding $40,000.
Concurring Opinion
(specially concurring).
Notwithstanding the facts, as portrayed by the majority opinion, the factual showing in this case reflected the father’s ability to provide for his son’s spiritual, moral, physical and economic welfare.
It is true that the trial judge did not set forth the “compelling reasons” in express language, nor use any magical words to delineate “compelling reasons”. However, the trial judge weighed his decision carefully on the custody matter which is exemplified by expressions of the excellent relationship between the father and the son as well as a healthy environment.
Reference is made to footnote 2 in the majority opinion. Appellant and Appellee both assiduously briefed the issue of the trial court’s award of D.J. to the father under the "best interests of the child” rule. SDCL 30-27-19; Flint v. Flint, 334 N.W.2d 680, 681-2 (S.D. 1983). This statutory authority and hallowed precedent requires the trial judge, in awarding custody of minors, to consider the best interests of the child's temporal, mental, and moral welfare. At the time the trial judge decided this, said issue was foursquare before the trial court.
Reference
- Full Case Name
- Delwyn M. MILLER, Plaintiff and Appellee, v. Debra G. MILLER, Defendant and Appellant
- Cited By
- 6 cases
- Status
- Published