Harwood v. Chamley

#30171-a-MES
2023 S.D. 35

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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CODY HARWOOD, Plaintiff and Appellant,

v.

SARAH CHAMLEY, Defendant and Appellee.

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APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
MEADE COUNTY, SOUTH DAKOTA

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THE HONORABLE M. KEVIN KRULL
Judge

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GEORGE J. NELSON
Rapid City, South Dakota Attorney for plaintiff and
appellant.

ANGELA COLBATH of
Colbath & Sperlich, P.C.
Rapid City, South Dakota Attorneys for defendant and
appellee.

****

CONSIDERED ON BRIEFS
APRIL 25, 2023
OPINION FILED 07/12/23
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SALTER, Justice

[¶1.] After Cody Harwood and Sarah Chamley ended their romantic

relationship, the circuit court conducted a trial to determine custody of the parties’

two children. The court granted Sarah primary physical custody, and Cody appeals,

arguing that the court abused its discretion. We affirm.

Factual and Procedural Background

[¶2.] Cody and Sarah began dating in 2016, and Sarah eventually moved

into the Sturgis home where Cody resided. The couple had their first child, P.H., in

2017 and a second child, L.H., in 2018. Also living in the home were Sarah’s two

teenage children, who she shares with her estranged husband. 1 Sarah left the

Sturgis home in October 2020 when her relationship with Cody ended.

[¶3.] When living together, Cody was employed and provided for Sarah and

their children financially while Sarah stayed home to care for P.H. and L.H. After

moving out, Sarah obtained her own housing and employment.

[¶4.] Cody petitioned the circuit court for “Interim and Primary Custody,

Child Support, and Paternity” determinations. The parties entered into a February

2021 “Stipulation for Interim Custody and Support, and Appointment of Custody

Evaluator” (interim agreement), which the court incorporated into an interim order.

The interim agreement provided for shared parenting under which each party

received equal parenting time with the children. The arrangement eventually

developed into an alternating week on/week off schedule.

1. Though they are estranged from their spouses, both Sarah and Cody remain
married to other people.
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[¶5.] The circuit court’s interim order also incorporated the parties’

agreement to appoint Tom Collins to conduct a custody evaluation. 2 As part of his

work, Collins spent time observing the children in each parent’s home along with

interviewing Cody, Sarah, and others connected to the family, including Cody’s new

live-in girlfriend, Katie Gould, and Sarah’s two older children.

[¶6.] During Collins’s interviews, each parent expressed concerns about the

other, ranging from physical abuse to excessive drinking. Sarah also noted that

Cody suffered from post-traumatic stress disorder as a result of his service in the

United States Marine Corps. Particularly relevant to this appeal, Collins also

considered information relating to Sarah’s misdemeanor conviction for simple

assault (domestic) after she bit Cody’s face during an altercation in which both had

been drinking.

[¶7.] In addition, Collins’s investigation led him to conclude that Sarah was

the children’s primary caretaker and was more familiar with their daily care and

needs. Collins also believed that Sarah had provided consistency for the children.

In his report, Collins noted that Cody, while overall attentive and caring, was not as

familiar with the children’s needs. Particularly troubling was the fact that Cody

had introduced a new romantic interest, Katie, to the children almost immediately

after the relationship with their mother ended. This, Collins noted, continued a

perceptible pattern of successive short-term marriages and serious relationships

that raised stability concerns.

2. Collins has completed over 800 custody evaluations in South Dakota.
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[¶8.] As part of the custody evaluation, Collins also administered a version

of the Minnesota Multiphasic Personality Inventory, known as the MMPI-2-RF, to

Sarah, Cody, and Katie. Collins’s written evaluation described the MMPI-2-RF as

the updated version of the MMPI-2, which Collins stated is the most widely used

means of assessing personality traits in child custody cases. See Baker v. Rapid

City Reg’l Hosp., 2022 S.D. 40, ¶ 9 n.2, 978 N.W.2d 368, 373 n.2 (describing the

MMPI-2-RF as an updated version of the MMPI-2). The information collected in

Collins’s administration of the MMPI was then interpreted by a licensed

psychologist. While Sarah’s MMPI results placed her statistically in the average

range for parents, both Cody’s and Katie’s test results were deemed unreliable by

the psychologist due to unnaturally virtuous responses and concerns about

underreporting symptoms.

[¶9.] Collins oriented his custody evaluation around the best interests of the

child factors set out in Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, ¶ 24, 591 N.W.2d

798, 807. This analysis featured a substantive discussion relating the specific facts

revealed by Collins’s investigation and concluded with a recommendation as to

whether a particular Fuerstenberg factor favored one parent or the other.

[¶10.] In addition to concluding that the Fuerstenberg factors, on the whole,

favored Sarah, Collins also considered whether continuing the joint custody

arrangement was in the children’s best interests. Ultimately, Collins opined that

joint custody would be difficult because “the parties do not show mutual respect

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toward the other and [ ] do not effectively communicate regarding the best interests

of [the children][.]” 3

[¶11.] In the end, Collins recommended that the parties share legal custody

of the children, with Sarah having primary physical custody. He also recommended

that Cody have parenting time every Thursday evening to Friday evening, every

other weekend, and every other week during the summer, in addition to splitting

holidays. 4 Collins calculated that this resulted in an average of ten or eleven days

of parenting time for Cody a month, which Collins noted is more than the South

Dakota Parenting Guidelines recommend.

[¶12.] After receiving the custody evaluation, the circuit court conducted a

March 2022 bench trial to decide the custody issues. There was testimony from

nine witnesses throughout the two-day trial including Collins, Cody, and Sarah.

Both Cody and Sarah reiterated their concerns about the other during their

testimony. As for their requested resolutions, Sarah was generally of the opinion

that Collins’s recommendations were appropriate, while Cody asked the court to

make the interim week on/week off parenting arrangement permanent.

[¶13.] Based on his testimony and the cross-examination of Collins, Cody

took particular issue with several of the custody evaluation’s factual determinations

and the apparent lack of dispositive weight Collins placed on Sarah’s simple assault

3. Collins stated that Cody flatly refused to speak with Sarah.

4. Collins recommended exchanging the children every other week during the
summer, starting in the summer of 2024 after both children have started
school. In the summer of 2023, Collins recommended that Cody should have
parenting time for two two-week periods starting June 1 and July 1.
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(domestic) conviction. During Collins’s cross-examination, Cody’s attorney pointed

Collins to SDCL 25-4-45.5, which provides that a “conviction . . . of domestic abuse

creates a rebuttable presumption that awarding custody to the abusive parent is not

in the best interest of the minor.” Collins responded that whether the presumption

was overcome was a question that should be reserved for the court but also

indicated that he had, indeed,

considered [Sarah’s conviction] extensively in my evaluation by
referring to it as it fits into the framework of the Fuerstenberg
factors and the framework of the joint physical custody act. I
talked about it at length as to how it impacts the children which
is how I view domestic violence being particularly relevant in
child custody cases. So that being said, it’s safe to say my
presumption is that that arrest for domestic violence in
February of 2018 is not enough to automatically flip this case to
Cody Harwood[.]

[¶14.] At the conclusion of the trial, the circuit court took the case under

advisement and asked the parties to submit proposed findings of fact and

conclusions of law. Cody proposed a conclusion of law “that the parties have joint

physical and legal custody of the children but for [Cody] to be named their primary

custodial parent [and] . . . that it is in the children’s best interest that the parties

continue with their current parenting schedule, exchanging the children every week

on Mondays at their daycare.”

[¶15.] For her part, Sarah’s proposed conclusions of law stated that the court

took judicial notice of her simple assault (domestic) conviction and that “the totality

of the evidence presented in this matter has sufficiently rebutted any presumption.”

Further, Sarah proposed conclusions of law that applied the Furstenberg factors to

support the ultimate conclusion that it would be in the children’s best interests to

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grant Sarah primary custody with Cody having parenting time in accordance with

Collins’s recommendations.

[¶16.] The parties’ proposals were submitted to the court in April 2022, and

the circuit court filed its findings and conclusions in November 2022. As Cody notes

in his appellate submissions, it does not appear that there is a difference between

Sarah’s proposed findings of fact and conclusions of law and those entered by the

circuit court.

[¶17.] Cody appeals, challenging the circuit court’s decision designating

Sarah as the children’s primary custodial parent and rejecting his proposal to

continue the interim week on/week off custody arrangement. As indicated below,

Cody does not allege that the court’s findings are unsupported by evidence but

rather claims that the court overlooked the presumption in SDCL 25-4-45.5,

accorded dispositive weight to Sarah’s role as the primary caretaker, and abdicated

its judicial responsibility by, in his view, indiscriminately accepting Collins’s

custody evaluation and testimony.

Analysis and Decision

[¶18.] “Child custody determinations are reviewed for an abuse of discretion.”

Flint v. Flint, 2022 S.D. 27, ¶ 28, 974 N.W.2d 698, 703 (quoting Evens v. Evens,

2020 S.D. 62, ¶ 21, 951 N.W.2d 268, 276). “An abuse of discretion ‘is a fundamental

error of judgment, a choice outside the range of permissible choices, a decision,

which, on full consideration, is arbitrary or unreasonable.’” Id. (citation omitted).

[¶19.] The text of SDCL 25-4-45 provides that “[i]n awarding the custody of a

child, the court shall be guided by consideration of what appears to be for the best

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interests of the child in respect to the child’s temporal and mental and moral

welfare.” As we recently described, the seven Fuerstenberg factors—parental

fitness, stability, primary caretaker, child’s preference, harmful parental

misconduct, separating siblings, and substantial change of circumstances—“have

become an accepted means of determining child custody disputes, [but] a court is

not, strictly speaking, required to examine them in its best interests

determination.” Flint, 2022 S.D. 27, ¶ 30, 974 N.W.2d at 703. Required or not, the

Fuerstenberg factors are an “eminently practical . . . means for a court to achieve

form and structure in its analysis.” Id. ¶ 31.

[¶20.] Cody develops the three appellate arguments identified above as

follows: First, he argues that the circuit court erred “in waiving off the criminal

misdeed by [Sarah], and declaring the [SDCL 25-4-45.5] presumption to have been

rebutted, upon a ‘totality of the circumstances.’’’ Second, he argues the court “failed

to honor the holding of Kreps v. Kreps, 2010 S.D. 12, 778 N.W.2d 835, wherein this

Court rejected the notion that the primary caretaker factor should prevail over all

other factors a trial court may consider in determining child custody.” Finally, Cody

claims that the court abdicated its judicial authority to Collins when it “simply

adopt[ed] the custody evaluator’s recommendation wholesale, [ ]‘rubber stamped’

it[,] and [accepted] [Sarah’s] proposed Findings and Conclusions as if the court was

waiving off its own duty to closely examine the testimony and exhibits for itself.”

SDCL 25-4-45.5

[¶21.] The provisions of SDCL 25-4-45.5 create a rebuttable presumption that

“awarding custody to the abusive parent is not in the best interest of the minor.”

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We discussed the effect of this statute in Shelstad v. Shelstad, 2019 S.D. 24, ¶¶ 28–

30, 927 N.W.2d 129, 136, explaining that the presumption ceases upon a showing

sufficient to rebut it. As support, we cited SDCL 19-19-301, which provides:

In all civil actions and proceedings, unless otherwise provided
for by statute or by this chapter, a presumption imposes on the
party against whom it is directed the burden of going forward
with evidence to rebut or meet the presumption . . . . When
substantial, credible evidence has been introduced to rebut the
presumption, it shall disappear from the action or proceeding,
and the jury shall not be instructed thereon.

(Emphasis added); see also Matter of Estate of Gaaskjolen, 2020 S.D. 17, ¶ 21, 941

N.W.2d 808, 814 (“A presumption will serve as and in the place of evidence in favor

of one party or the other until prima facie evidence has been adduced by the

opposite party; but the presumption should never be placed in the scale to be

weighed as evidence.” (citation omitted)).

[¶22.] Here, Cody’s argument does not correctly account for the fleeting

nature of SDCL 25-4-45.5’s presumption in instances where the evidence is

sufficient to rebut it. He argues, instead, that the circuit court simply “waived [the

presumption] off.” However, this claim is unsustainable.

[¶23.] The topic of Sarah’s conviction was thoroughly developed in the

parties’ trial testimony, addressed by Collins, and, ultimately, considered by the

court. In its findings, the court acknowledged the statutory presumption and found

that it had been rebutted by “the totality of the evidence presented in this matter[.]”

[¶24.] Perhaps more to the point, the circuit court correctly remained focused

upon the children’s best interests. In truth, Cody’s argument regarding SDCL 25-4-

45.5 is not so much that the court overlooked the presumption—it surely did not—

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but more that the court did not regard the presumption and Sarah’s conviction as

the dispositive consideration in determining the primary custodial parent. But this

view is inconsistent with the court’s overarching obligation to train its attention

upon the best interests standard, and it is also contrary to SDCL 19-19-301’s rule

concerning the nature of evidentiary presumptions.

Primary Caretaker Factor

[¶25.] Cody points out that we rejected an argument in Kreps that the

“primary caretaker [factor] should be the primary factor in determining child

custody disputes[.]” 2010 S.D. 12, ¶ 28, 778 N.W.2d at 844. He also cites our Evens

decision where we similarly rejected an argument that “the primary caregiver

should be accorded determinative weight.” 2020 S.D. 62, ¶ 31, 951 N.W.2d at 279.

[¶26.] While identifying accurate statements of law, Cody has not identified

specific support from the record to establish his argument that the circuit court

considered the primary caretaker factor to be preeminent. Instead, he broadly

claims that a “review of Collins’ evaluation report and his testimony seems to do

just the opposite of what Kreps denounced[,]” noting that Collins stated the primary

caretaker factor was “[a] significant factor.”

[¶27.] Based upon our review of the record, we cannot accept Cody’s

argument that the circuit court gave too much weight to its primary caretaker

determination. The court accurately determined that Sarah had historically been

the children’s primary caretaker and had stayed at home to care for them when

they were younger. As a consequence, the court found that the children had a closer

connection to their mother. The court considered this fact, along with others, in its

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overall determination of the children’s best interests, as the record and the court’s

findings and conclusions plainly indicate.

[¶28.] Though it is true that a court could abuse its discretion by myopically

considering the primary caretaker in its best interests determination to the

exclusion of other relevant considerations, this is not such a case.

Abdication of Authority

[¶29.] “[J]udges, not custody evaluators, have the responsibility to make

custody decisions.” Maxner v. Maxner, 2007 S.D. 30, ¶ 17, 730 N.W.2d 619, 623.

Naturally, this means that circuit courts may not simply adopt a custody

evaluator’s view arbitrarily, but should instead consider all of the evidence “to

perform an objective custody analysis.” Id. ¶ 15. And while “it is well within the

court’s discretion to adopt [ ] findings of fact and conclusions of law which it deems

most appropriate, regardless of their source,” the court may not, of course, consign

its role to that of “a judicial rubber stamp[.]” Feldhaus v. Schreiner, 2002 S.D. 65,

¶ 14, 646 N.W.2d 753, 757.

[¶30.] The only possible support for Cody’s “judicial rubber stamping”

argument is the fact that the court accepted Sarah’s proposed findings of fact and

conclusions of law which were, in turn, consistent with Collins’s custody evaluation

and testimony. But this bare claim, standing alone, fails to recognize the more

likely explanation that Sarah’s proposed findings and conclusions simply aligned

with the court’s own view of the case.

[¶31.] Our review of the trial transcript reveals that the circuit court was

decisively engaged during the presentation of evidence. The court apparently felt

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the need to consider the case further, opting not to issue a bench ruling at the close

of the evidence and entering its findings and conclusions at a later time. Under the

circumstances, we can find no support for the argument that the court abdicated its

independent adjudicative role.

[¶32.] And while Cody generally challenges the custody determination, he

does not dispute any discrete factual findings. 5 From our review, the circuit court’s

findings are sourced to evidence contained in the record, and it appears the court

carefully weighed all of the evidence in the exercise of its fact-finding role. See

Evens, 2020 S.D. 62, ¶ 24, 951 N.W.2d at 277 (“Indeed, ‘[t]he credibility of the

witnesses, the weight to be accorded their testimony, and the weight of the evidence

must be determined by the circuit court and we give due regard to the circuit court’s

opportunity to observe the witnesses and the evidence.’” (alteration in original)

(quoting Hiller v. Hiller, 2018 S.D. 74, ¶ 22, 919 N.W.2d 548, 555)).

Conclusion

[¶33.] Cody’s somewhat melodramatic claim that the court’s discretion “is not

a sword to wield against persuasive evidence and legislative mandates”

fundamentally misstates the role of a trial court, which has nothing to do with

wielding a sword at all. Rather, the court must engage in a highly fact-intensive

and nuanced determination of the children’s best interests. These decisions are

5. Cody’s principal argument at trial and on appeal is that the interim week
on/week off parenting schedule should have continued, using the
colloquialism, “If it ain’t broke, don’t fix it.” But Cody’s not-broke premise is
not sound. The circuit court specifically found that “[s]ince entering the
shared parenting plan approximately one year ago, [the parties’] interactions
have continued to be tense and non-productive.”
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weighty and have a significant impact upon children, but they are necessary in the

absence of consensus between parents about how to best co-parent their children.

[¶34.] After a careful review of the record, we believe the circuit court’s child

custody determination was within the range of permissible choices and was

supported by competent evidence. We affirm.

[¶35.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,

Justices, concur.

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