Hanks v. Hanks

HENDERSON, Justice

(concurring in part, dissenting in part).

I shall refer to Curtis W. Hanks, plaintiff, appellant, and respondent on cross-appeal as the father; and I shall refer to Margaret Hanks, defendant, respondent, and appellant on cross-appeal as the mother.

The mother first denied, under oath, committing adultery. Later, under oath, faced with evidence, she admitted having an adulterous relationship with the superintendent of schools who was also married. After leaving the family home, she lived in five different residences; two of these were in Minneapolis, Minnesota, and three were in Vermillion, South Dakota. When the mother stayed with her brother in Minneapolis in the fall of 1977, her brother was living with a woman to whom he was not married. The mother exposed the children of this marriage to this illicit relationship when the children visited her in Minneapolis. When asked by the father if she had considered the children regarding her abandonment of the home and the children, she stated: “I am the only thing worth salvaging out of this whole god-damned mess.” There was no denial by the mother that she made this statement. It further appears from the record that the mother had another meretricious relationship with a different man in Vermillion; called upon to deny the evidence, she claimed Fifth Amendment protection.

Perhaps I am a little bit old fashioned in this day and age, but I do not believe that adultery, lying under oath, exposing children to an illicit relationship of a close relative, leaving the father to care for three young children, living in five different residences in a short period of time, and demonstrating a calloused and indifferent attitude toward her children and a respectable married life, is conduct in the best interests of a child’s temporal, mental, and moral welfare.

During the course of the trial, in an obvious ploy to influence the trial court, the mother told the court that she no longer loved the superintendent and that she no longer was continuing her relationship with him. In a hearing involving the custody of these children subsequent to the trial and divorce decree, it came to the attention of this court that she married the superintendent several months after the trial was completed. Again, this demonstrates that a mother of this ilk has such a total disregard for truthfulness, which is so pervasive of her character, that she cannot inculcate good values in her children. It is also to be noted that, while she played the part of the amorous nomad, the father abided in the family home (awarded to him), prepared the children’s breakfasts and kept them clean and well dressed, disciplined the children, and took care of their special needs. Moral values must be instilled in children. The mother was gone and the father necessarily occupied a father-mother role. The father regularly took the children to church; the *529 mother, when she had custody in the summers of 1977 and 1978, rarely took them to church.

During trial, the mother sought to prove that the father was extremely cruel to her. She attempted to use this as a rationalization for leaving the family home. However, the trial court ruled that her counterclaim was without merit and it was dismissed. Absenting herself from the home was unjustified and was cruel to her husband and the children who needed her.

THERESA

Theresa, age 14, was awarded to the mother. As a teen-age girl, she is impressionable and her best interests were not served by awarding her custody to a mother who lives by such extraordinary ideas of right conduct. Theresa has now departed the company of her mother, having elected to live with her father in the family home at Lemmon, South Dakota. Her custody is apparently not at issue.

RACHAEL

Rachael, age 12, was awarded to the mother. This child suffers from a learning disability. As such, she needs special attention and parental help in the learning process. This learning disability was being treated in Lemmon and the father and educators there had plans to continue that treatment. Any child needs stability in the educational process. During the summer when Rachael was in the custody of the mother, Rachael’s special education teacher assigned work to be done. There is no proof that this work was completed and the teacher testified that the assignments were never returned to her. Thus, Rachael suffered retrogression in her learning disability at the hands of her mother. Again, this young lady is impressionable and needs a stable environment and a parent who will attend to her special needs. The father followed through; the mother did not. It was error for the court to award Rachael to the neglectful mother.

BRIAN

Brian, age 9, was awarded to the mother. Testimony of a clinical psychologist established that Brian needed a strong male figure with whom he could identify. Evidence further established that the father clearly provided a strong father figure and that he took all of the children hunting and fishing. The mother is a weak figure and preoccupied with her personal pursuits. The father is a well-respected attorney in Lemmon, South Dakota, where he was born, raised, and now practices law. Under the guiding hand of his father, Brian would have a stable, predictable life and testimony reveals that the mother was most unstable. The lower court did not, in any way, hold or even suggest that the father was unfit for custody. The mother demonstrated irresponsible conduct in leaving this boy. Enc-harging the father with the boy’s custody reveals her belief that the father could ably raise the boy. It was an abuse of discretion to award Brian unto the mother.

The trial record establishes that the father provided a better moral example than the mother; he obviously provided a more stable home life. The trial court erroneously dismissed this evidence.

In my specially concurring opinion in Spaulding v. Spaulding, 278 N.W.2d 642 (S.D.1979), I expressed that the “father and mother must be compared as to who could provide the better educational, moral, physical, emotional, temporal, and mental benefits.” Needless to say, when comparing these contending parents it is readily apparent that the father was the overwhelming jurisprudential choice in whom to repose custody of these three children. In Spauld-ing, supra, at 641 this Court stated:

When the mother, by irresponsible conduct, indicates that her care and custody would be detrimental to the welfare of the child, custody may be awarded to the father. Hines v. Hines, 78 S.D. 464 , 104 N.W.2d 375 (1960); Blow v. Lottman, 75 S.D. 127 , 59 N.W.2d 825 (1953); Sweeney v. Joneson, 75 S.D. 213 , 63 N.W.2d 249 (1954).

*530 The trial court has broad discretion in awarding custody of minor children, and this Court will not interfere with that discretion unless the record presents a clear case of abuse. Holforty v. Holforty, 272 N.W.2d 810 (S.D.1978); Pochop v. Pochop, 89 S.D. 466 , 233 N.W.2d 806 (1962). However, that discretion is a judicial discretion, not an uncontrolled one, and its exercise must have sound and substantive basis in the testimony. Hines v. Hines, supra; Bunim v. Bunim, 298 N.Y. 391, 393 , 83 N.E.2d 848, 849 (1949).

In Yager v. Yager, 83 S.D. 315, 317 , 159 N.W.2d 125, 127 (1968), this Court stated:

Neither parent is entitled to custody as a matter of right. The consideration paramount to all others is the welfare and best interests of the children [citing] Larson v. Larson, 70 S.D. 178 , 16 N.W.2d 307 (1944); Howells v. Howells, 79 S.D. 480 , 113 N.W.2d 533 (1962).

The mother would immerse and cloud our thinking with the liberal argument: “bad wife but not bad mother.” The record discloses she was both. Good mothers do not forsake their children and leave the family home to take up a life of a person totally unaware of parental responsibility. It could be urged that the children were unaware of her adulterous life. However, this Court has also stated that the fact that children, because of their ages, do not understand the improprieties of their mother is not determinative. Yager, supra, at 317 , 159 N.W.2d at 128 ; see also Currin v. Currin, 125 Cal.App.2d 644 , 271 P.2d 61 (1954) and Bunim, supra.

It is to be remembered that the mother taught in the Lemmon School system from January 1969 until the end of the 1977 school year. For nearly two years, the evidence shows that the mother carried on an adulterous affair with her superintendent. Her meretricious conduct included rendezvouses with the superintendent at Minneapolis, Minnesota; Sioux Falls, South Dakota; and Flagstaff, Arizona. This conduct finally burst upon the public scene in this small western South Dakota town into public affection. To my way of thinking, this was detrimental to these young girls and this little boy. The children attended the Lem-mon School system where the superintendent presided and the mother was a teacher. When confronted by her husband, the mother lied about her relationship with the superintendent. Similar acts of adultery have been found by the courts to constitute evidence of aggravated maternal unfitness and custody was awarded to the father. McNamara v. McNamara, 181 N.W.2d 206 (Iowa 1970); Peck v. Peck, 16 Ill.2d 268 , 157 N.E.2d 249 (1959); Baker v. Baker, 166 Neb. 306 , 89 N.W.2d 35 (1958).

Applying the settled law of this state to the facts of this case, I therefore dissent and would reverse the trial court and return (vest custody in) the two children to their father for these reasons: (1) there was no sound and substantial basis in the testimony to grant their custody to the mother, (2) the mother’s irresponsible conduct has indicated that her care and custody would be detrimental to the children, and (3) the welfare and best interests of the children would be best served by placing them with the father. I concur in the balance of the majority opinion.