Daniel G. Maxner v. Renee M. Maxner

[1.] In this divorce appeal, a father questions the qualifications and opinions of a court-appointed custody evaluator. The circuit court accepted the evaluator's recommendations in its decision to award physical custody to the mother. The father also challenges the court's decisions on property division, alimony, and child support. We affirm.

Background

[2.] Daniel and Renee Maxner were married on June 13, 1997. Three daughters were born to the marriage. Daniel sued for divorce in 2004. At the same time, Daniel and Renee each obtained a protection order against the other. As the trial court would later remark, "[t]here are repeated claims of violence, dominance, and abuse made by both parties and each party can point to episodes which are claimed to document or support their allegations." Both parents sought primary custody of their three children.

[3.] At trial, Daniel and Renee each offered evidence of the other's abuse. But the court ultimately found that "[b]oth parties know the triggers of the other and either of them can institute an altercation or uproar staged to make the other look bad or appear the aggressor." The court concluded that there was no physical match between the two. Because of Daniel's size, whether Renee was the aggressor or not, it would not "remotely resemble a fair match in any sense of the word." Essentially, the court concluded that they each married a "mate with whom they cannot live."

[4.] After receiving "testimony and affidavits from many, many people," the court summarized its conclusions: Daniel's witnesses described him as "calm, cheerful, non-aggressive, caring, loving, loyal, [and a] virtually perfect human being who suffered unendingly as a result of" Renee's actions. His witnesses described Renee as an irrational, obsessive-compulsive woman, who fears dirt and germs, but leaves her home in a disastrous state, and who is rude and physically aggressive. On the other hand, the court found that Renee's witnesses depicted Daniel as a dominating, raging, and abusive man who degrades Renee both in public and private. These witnesses acknowledged that Renee has some faults, but testified that she has always been an appropriate caretaker of the children despite Daniel's claims to the contrary. There were some witnesses with no ties to either parent. These witnesses, the court observed, "tend to side more with the descriptions of [Daniel] by [Renee's] witnesses than the other way around."

[5.] From expert opinions offered during the proceedings, the court concluded that Daniel and Renee each suffer from "personality disorders" or "markedly dysfunctional behavioral traits." In the court's view, these psychological problems rendered their relationship "dysfunctional in many respects." Renee has a history of personality disorders. Yet, as the court noted, she "readily admitted these problems and works on them." Daniel, according to the court, has a "need to dominate and control," has "difficulty in controlling angry outbursts[,] . . . has an obsession with being right and views opinions contrary to his as being wrong, ignorant, or dishonest." The court saw "little evidence" that Daniel would accept that he has multiple problems and needs to make changes.

[6.] In August 2004, while the divorce was pending, the circuit court allowed Renee to move with the children to North Dakota, where her extended family resides. Daniel objected to the move. According to the court, it allowed the move "regardless of which parent would ultimately be awarded custody" and "despite [its] strong dislike of move-aways, primarily because the relationship of the parties was so dysfunctional that the [c]ourt deemed separation by a considerable distance to be essential for a peaceful and stable environment for both the adults and the children[.]"

[7.] In June 2005, Daniel and Renee were granted a divorce on irreconcilable differences. Daniel retained possession of the marital home, and the mutual protection orders were dismissed. In the decree, they were given joint legal custody of their three daughters, with Renee having primary physical custody in North Dakota.

[8.] Daniel had been the primary income provider during the marriage. He is a self-employed floor layer. Renee worked during the marriage, but only intermittently. Her primary role in the relationship was to stay home and care for the children. Considering their respective contributions to the marriage, the court ruled that an equal property division was appropriate. To balance the division, Daniel was ordered to pay Renee a lump sum of $15,406. The court also awarded Renee $150 per month in alimony for three years to allow her to improve her earning capacity while employed after the divorce.

[9.] Daniel appeals pro se. He asserts that the court erred when it (1) allowed Renee to move the children to North Dakota; (2) awarded physical custody of the children to Renee; (3) calculated his child support obligation; (4) awarded Renee alimony; and (5) ordered a lump sum payment in the property division. Renee made no appearance in this appeal.

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[11.] Because of the inability of some divorcing parents to cooperate for the best interests of their children, a court must make a choice.

That choice is often difficult because between two loving parents there may be little to distinguish one over the other. Choosing between two satisfactory options falls within a judge's discretion. Thus, in our review of an ultimate decision on custody, we decide only whether the court abused its discretion. Fuerstenberg, 1999 SD 35, 22, 591 NW2d at 807 (citations omitted). Although we have repeatedly invoked stock definitions, the term "abuse of discretion" defies an easy description. It is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable. See generally Adrian v. McKinnie, 2002 SD 10, 10, 639 NW2d 529, 533 (citations omitted). This standard is the most deferential of appellate review standards, but that does not mean that a judge's custody decision will remain undisturbed. Rather, it is a recognition that trial courts are in a better position to make these difficult choices because the parents are present in the courtroom and the judge is better able to assess their capabilities firsthand.

Id. 14. See also Zepeda v. Zepeda, 2001 SD 101, 13, 632 NW2d 48, 53-54 (citing Price v. Price, 2000 SD 64, 18, 611 NW2d 425, 430 (citations omitted)).

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[23.] We review a court's decision to allow a parent to move the children out of the jurisdiction under the abuse of discretion standard. Ducheneaux v. Ducheneaux, 427 NW2d 122, 123 (SD 1988) (citing Matter of Ehlen, 303 NW2d 808, 810 (SD 1981)). Our Legislature has declared that "[a] parent entitled to the custody of a child has the right to change his residence, subject to the power of the circuit court to restrain a removal which would prejudice the rights or welfare of the child." SDCL 25-5-13. We recognize that removing a child from the jurisdiction is "generally against policy." Ducheneaux, 427 NW2d at 123. Here, the court determined that the move is in the best interests of the children. It allowed the move "despite [its] strong dislike of move-aways, primarily because the relationship of the parties was so dysfunctional that [it] deemed separation by a considerable distance to be essential for a peaceful and stable environment for both the adults and the children." Moreover, Renee's extended family lives in North Dakota and a support system exists there for her. Although Daniel claims to be overly burdened because of the distance he is required to travel, he and Renee split the distance of travel for exchanging the children. We find no abuse of discretion.

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[25.] In determining a monthly net income, a court is permitted, in appropriate cases, to use an average over a period of years. Hendricksen v. Harris, 1999 SD 130, 12, 600 NW2d 180, 182-83 (citing Ochs v. Nelson, 538 NW2d 527, 529 (SD 1995)). Daniel is self employed and does not receive a set monthly income. Therefore, the court used an average of years to gain an idea of Daniel's actual income. Although he claims that 2004 accurately reflects his earning capacity, his income in 2003 was only two thousand more. Moreover, Daniel argues that the court improperly considered 2001 because that was an unusually good year. Yet, in 2002, his reported business income is only five hundred less. While Daniel would have liked the court to use only his 2004 tax return, it was not an error for the court to use an average of years. Id.; see also Edinger v. Edinger, 2006 SD 103, 16, 724 NW2d 852, 857 (using a tax return that better reflected average income).

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[28.] We also conclude that the court's alimony award was not an abuse of discretion. The court analyzed the length of the marriage, the parties' earning capacities, their ages, health and physical conditions, social standing and relative fault. See Zepeda, 2001 SD 101, 21, 632 NW2d at 55-56 (citing Price, 2000 SD 64, 61, 611 NW2d at 437 (citations omitted)). It recognized that because Renee had not been working, but had been home with the children as the primary caretaker, an alimony award for three years would help her improve her earning capacity. It also found that Daniel "is steadily employed, [and] capable of earning considerably more money" than Renee. And even though both parties contributed to the breakup of the marriage, the court concluded that the "fault lies more heavily with" Daniel.