#30485-aff in pt & rev in pt-JMK
2024 S.D. 60
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
FAWNA GOFF, Plaintiff and Appellee,
v.
TERRY GOFF, Defendant and Appellant.
…
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
MEADE COUNTY, SOUTH DAKOTA
…
THE HONORABLE JOHN FITZGERALD
Judge
…
MINDY R. WERDER of
Lynn, Jackson, Shultz
& Lebrun, P.C.
Sioux Falls, South Dakota Attorneys for defendant and
appellant.
CASSIE J. WENDT
Philip, South Dakota Attorney for plaintiff and
appellee.
…
CONSIDERED ON BRIEFS
JUNE 4, 2024
OPINION FILED 09/11/24
CORRECTED
OPINION FILED 10/16/24
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KERN, Justice
[¶1.] Fawna and Terry Goff were married in 2015 and had one child
together, M.G. However, in late 2021, Terry left the marital home for work in
Texas. After a time, it became clear that he did not intend to return to South
Dakota and was pursuing a relationship with a new romantic partner. During this
time, Fawna allowed M.G. to travel to Texas for an extended visit with Terry, after
which he refused to return the child to South Dakota. Fawna filed for divorce and a
trial was held in August 2023. Ultimately, the circuit court granted Fawna a
divorce on the grounds of adultery, awarded primary legal and physical custody of
M.G. to Fawna, set child support, divided the parties’ property, and made a partial
award of attorney fees to Fawna. Terry appeals. We affirm in part, reverse in part,
and remand.
Factual and Procedural Background
[¶2.] Fawna and Terry Goff were married on June 27, 2015, and lived
together in Meade County, South Dakota. Together, Terry and Fawna have one
child, M.G., who is currently seven years old. 1 In November 2021, they purchased a
trailer home in Sturgis from Terry’s parents. As part of the purchase agreement,
Terry’s parents received a $50,000 mortgage on the trailer home. 2 During the
marriage, Terry was employed as a truck driver—making approximately $2,000
every two weeks—and would regularly go south for work during the winter.
1. Fawna also has a son from another relationship.
2. According to Terry, he would inherit the trailer free and clear in the event of
his parents’ deaths. However, there are no documents in the record
supporting the existence of the sale, mortgage, or Terry’s executory interest.
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[¶3.] In December 2021, Terry left the marital trailer home to work in Texas
for the winter. Although Fawna remained in the trailer home, Terry made the
mortgage payments to his parents and the property was titled solely under his
name in December 2022. Initially, Fawna understood that he would be returning in
the spring. However, Terry eventually told her that “he had full-time work [in
Texas] year-round and that he . . . didn’t want to be together anymore.” Terry now
lives in Texas City, Texas.
[¶4.] Terry admits that, around June 2022, he entered into a romantic
relationship with another woman, Chelsey Callaway. According to Fawna, Terry
and Callaway had been roommates since late 2021, but “it became pretty evident
the spring of 2022 that it was more than just a roommate.” Nevertheless, on
October 16, 2022, Fawna allowed M.G. to visit Terry in Texas for an extended
period of visitation. Fawna’s original agreement with Terry was that M.G. would
return to South Dakota in March 2023, in time to start school in Sturgis. However,
this did not occur. Terry claims that, at this time, “Fawna’s home was unclean,
unsafe and a health hazard” and that it was in the best interests of M.G. to live
with him.
[¶5.] On March 8, 2023, Fawna filed a verified complaint for divorce,
seeking a divorce and primary physical custody of M.G. Terry was served with this
complaint on March 21, 2023. On June 25, 2023, Fawna asked Terry to bring M.G.
to the funeral of a relative in Oklahoma so that she could take her back to Sturgis
thereafter. Terry, however, refused and Fawna filed a motion for emergency order
or emergency pickup order on July 5, 2023, seeking a court order for the immediate
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return of M.G. On July 18, 2023, the circuit court granted Fawna immediate
physical custody of M.G. and ordered the return of the minor child to South Dakota.
In addition, Fawna was granted legal and physical custody until further order of the
court. Although Terry was made aware of the court’s order on the day that it was
entered, he still did not return M.G.
[¶6.] Next, on July 20, 2023, Terry filed for divorce in Harris County, Texas,
and Fawna was served on the same day. Meanwhile, Terry failed to file any
response or appearance in South Dakota within sixty days and Fawna moved for
default judgment pursuant to SDCL 15-6-55(b). Terry filed a special appearance in
South Dakota on July 24, 2023, for the purpose of contesting jurisdiction and
denying the allegations in the complaint. 3
[¶7.] The circuit court held a hearing on Fawna’s motion for default
judgment on August 1, 2023. Terry was noticed and appeared telephonically and
pro se. At the beginning of the hearing, the court noted that it had jurisdiction over
M.G.’s custody determination under the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA). See SDCL 26-5B. Terry replied that “basically what
you all are doing is charging me with kidnapping.” In response, the court clarified
the purpose of the hearing:
COURT: Okay, let’s make it real simple here, Mr. Goff.
GOFF: Okay.
3. The circuit court found that on July 24, 2023, Terry filed an answer and
supporting declaration for UCCJEA and an affidavit of mailing in the South
Dakota case. At the time of trial, it had not been served on Fawna or her
counsel.
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COURT: Number one, this is the time and place set for a
default hearing. They’re seeking judgment against
you for default, meaning that you were served in
March of this year with a Summons and a
Complaint and you didn’t serve an Answer, you did
not deny any of the claims and those claims are
made for getting a divorce, for property settlement
and for the child to be in the sole custody or the
custody of Ms. Goff. Those are the issues.
You’ve served some sort of an Answer here very
late in the proceedings in July, and so the question
to you is, do you want to have a trial before the
Court on those issues in the divorce?
GOFF: No sir. What I’d like to do is go ahead and deal
with the plea on the divorce.
COURT: All right. Then I’m going to have Ms. Wendt put on
her client and she can make application for what
she wants as far as a divorce, child custody and
also property settlement, and then we can just go
ahead and we’ll call this a trial on the issues rather
than a default hearing.
[¶8.] After this colloquy, both Fawna and Terry testified as witnesses in
support of their respective claims. At the conclusion of the testimony, the court
entered oral findings of fact and conclusions of law granting a decree of divorce to
Fawna on the grounds of adultery. The court divided the parties’ property
awarding each their clothing, personal effects, vehicles in their possession along
with the associated debt, bank and retirement accounts in their own names, and
ordered each party to pay their own medical and credit card debts. Terry was
awarded his camper and the court ordered Fawna to make arrangements to gather
Terry’s remaining property in Sturgis for his designee to pick up. The court also
ordered that the Sturgis trailer house, valued at $50,000, be immediately
transferred from Terry’s name to the name of Terry and Fawna (Geigle). Terry was
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further ordered to pay half of the “mortgage” payment to Terry’s parents for three
years, after which the court ordered that the “home either be sold or that one party
buy the other person’s equity out.”
[¶9.] Regarding child custody and visitation, the court granted primary
physical and legal custody of M.G. to Fawna, with Terry having “liberal visitation”
that would occur only in South Dakota. In addition, Terry was required to pay
monthly child support of $711 and arrearages at that amount from January 2022
through August 2023 totaling $12,798. The court ordered that Terry and Fawna
would be proportionally responsible for M.G.’s expenses and Terry would continue
providing M.G.’s health insurance coverage, with pro rata contribution from Fawna.
The court entered written findings of fact, conclusions of law and a judgment and
decree of divorce on August 11, 2023. Terry appeals, raising four issues, which we
restate as follows:
I. Whether the circuit court abused its discretion in
conducting a trial on the merits at the default judgment
hearing.
II. Whether the circuit court abused its discretion in
calculating arrearages.
III. Whether the circuit court abused its discretion in limiting
Terry’s visitation to the State of South Dakota.
IV. Whether the circuit court abused its discretion in
awarding attorney fees.
Analysis
[¶10.] We first address a procedural irregularity that initially resulted in the
absence of a responsive brief from Fawna. Terry filed a notice of appeal on October
10, 2023, and his brief on December 8, 2023. Fawna failed to timely file a
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responsive brief with this Court. Fawna moved for and received an extension to file
her brief by February 6, 2024. Fawna’s brief was served on opposing counsel and
received by the clerk’s office on February 7. The clerk’s office rejected the brief as
untimely. On February 23, 2024, Fawna filed a motion for waiver of default,
requesting that this Court extend the filing deadline based on good cause. The
Court granted this motion, ordering that “appellant shall file the appellee’s brief on
or before April 8, 2024.” No such brief was filed. The case was submitted to the
Court on the June calendar.
[¶11.] Because this Court’s order could have potentially caused confusion, as
it directed the Appellant to refile Fawna’s responsive brief on or before April 8,
2024, we permitted Fawna to file a responsive brief on or before June 17, 2024. The
brief was timely received and considered by the Court.
[¶12.] This Court “review[s] child custody decisions under the abuse of
discretion standard of review.” Schieffer v. Schieffer, 2013 S.D. 11, ¶ 13,
826
N.W.2d 627, 633 (alteration in original). “In addition, the trial court’s decisions
regarding child support and the division of property are reviewed for an abuse of
discretion.”
Id. Furthermore, “[a] circuit court’s ruling on the allowance or
disallowance of costs and attorney fees is also reviewed by this Court under the
abuse of discretion standard of review.”
Id. (alteration in original).
[¶13.] “An abuse of discretion is ‘a discretion exercised to an end or purpose
not justified by, and clearly against, reason and evidence.’” Id. ¶ 14,
826 N.W.2d at
633 (quoting Hill v. Hill,
2009 S.D. 18, ¶ 5,
763 N.W.2d 818, 822). “In the context of
reviewing custody decisions, ‘[a]n abuse of discretion occurs . . . when the trial
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court’s review of the traditional factors bearing on the best interests of the child is
scant or incomplete.’” Id. (alteration in original) (quoting Kreps v. Kreps,
2010 S.D.
12, ¶ 25,
778 N.W.2d 835, 843).
I. Whether the circuit court abused its discretion in
conducting a trial on the merits at the default
judgment hearing.
[¶14.] Terry argues that the circuit court conducted a “trial by ambush” by
considering the merits of the divorce action at the default hearing. Undoubtedly,
“[a] default judgment is an extreme remedy, and should only be granted when ‘the
adversary process has been halted because of an essentially unresponsive party.’”
Roso v. Henning, 1997 S.D. 82, ¶ 8,
566 N.W.2d 136, 140 (citation omitted).
However, a default judgment was not granted here. Indeed, rather than proceeding
to a hearing on Fawna’s motion for a default judgment, Terry, who was allowed to
appear telephonically from Texas, was informed by the court that Fawna was
seeking a default judgment against him. The court asked Terry if he wanted to
have a trial and he specifically told the court that “[w]hat I’d like to do is go ahead
and deal with the plea on the divorce.” Accordingly, the court placed both parties
under oath and proceeded with a court trial. His request having been granted,
Terry now—without citing any authority directly on point—argues that the court
should have only considered Fawna’s motion for default at the hearing. His
acquiescence in this procedure waives his claim of error herein. See Taylor Realty
Co. v. Haberling,
365 N.W.2d 870, 874 (S.D. 1985) (holding that assent to a jury
procedure waived any assertion of error on appeal).
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[¶15.] Even if his argument on this point is not waived, in order to
successfully oppose the motion for default judgment, Terry would have been
required to establish that he “(1) acted with excusable neglect, and (2) had a
meritorious defense.” Roso, 1997 S.D. 82, ¶ 11,
566 N.W.2d at 141. On the second
prong, “[t]he party seeking relief must present facts either by answer or affidavit
from which it could be inferred that upon a trial he would be entitled to a judgment
more favorable to himself than the judgment from which he is seeking relief.” Id.
¶ 13,
566 N.W.2d at 142.
[¶16.] Thus, even if the court had only considered the default motion, Terry
would have been required to present at least some showing on the merits of the
divorce action. In short, Terry cannot argue that he was without notice that the
merits of the divorce action would be considered, at least to some extent, at the
hearing. In addition, at the hearing, Terry displayed a detailed knowledge of the
marital estate and provided arguments regarding custody and child support, which
is logical considering his request to proceed.
[¶17.] Nevertheless, we conclude that Terry, by not objecting at the hearing,
waived any arguments against the circuit court’s consideration of the merits of the
divorce action.
II. Whether the circuit court abused its discretion in
calculating arrearages.
[¶18.] Terry argues that the circuit court erred by calculating arrearages
without considering M.G.’s residence in Texas under his care from October 2022
through July 2023. The circuit court granted Fawna arrearages from January 2022
through August 2023 in the amount of $12,798. The court calculated this amount
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by multiplying the monthly amount of child support—$711—by 18 months. 4 Terry
argues that he should be given credit for the 11 months that M.G. spent in his care,
for a total arrearages reduction of $7,821. The court did not cite any authority or
make specific factual findings regarding its method of calculating the arrearages. 5
Yet, there are a number of statutory provisions that are applicable in such
circumstances.
[¶19.] When a parent departs from the marital home, SDCL 25-7-6.1 provides
guidance for courts in establishing a child support obligation amount:
The parents of a child are jointly and severally obligated for the
necessary maintenance, education, and support of the child in
accordance with their respective means. Until established by a
court order, the minimum child support obligation of a parent
who fails to furnish maintenance, education, and support for his
child, following a continued absence from the home, is the
obligor’s share of the amount shown in the support guidelines,
commencing on the first day of the absence. For the purposes of
this section, “continued absence from the home,” means that the
parent or child is physically absent from the home for a period of
at least thirty consecutive days, and that the nature of the
absence constitutes family dissociation because of a substantial
severance of marital and family ties and responsibilities,
resulting in the child losing or having a substantial reduction of
physical care, communication, guidance, and support from the
parent.
[¶20.] Here, Terry was absent from the marital home beginning in January
2022. However, the record demonstrates that Terry continued to support M.G.
during his absence. He continued to pay the mortgage payments for the trailer
4. We note that this appears to be an incorrect calculation because January
2022 through August 2023, inclusive, would total 20 months.
5. The court did however cite SDCL 25-7-6.16 regarding Fawna’s responsibility
for certain health care expenses and SDCL 25-5-18.1 for the duration of the
child support.
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home, kept M.G. on his health insurance plan, and sent weekly packages with
clothes and other items. However, most importantly, he was the primary caretaker
for M.G. from October 2022 through the summer of 2023. Based on this record, it is
evident that Terry’s absence did not constitute “a substantial severance of marital
and family ties and responsibilities, resulting in [M.G.] losing or have a substantial
reduction of physical care, communication, guidance, and support from [Terry].” As
a result, the court, even if it cited SDCL 25-7-6.1, would have erred in awarding
arrearages.
[¶21.] Further, SDCL 25-7-6.19 provides that “if, by agreement of the parties,
the obligor had primary physical custody of the child for more than four consecutive
months, the court may credit the obligor for child support arrearages which
accumulated during the period the obligor had actual custody of the child.” Thus,
even if Terry owed arrearages pursuant to SDCL 25-7-6.1, the circuit court abused
its discretion by not considering the numerous months that Terry had physical
custody of M.G. in Texas. 6 In such an analysis, the court could, in its discretion,
take note of Terry’s ultimate recalcitrance in returning M.G. to Fawna, even when
faced with a court order. However, the fact remains that Terry cared for M.G. for a
substantial period with the consent of Fawna.
6. We also note SDCL 25-7-6.24 provides that “[i]f the parents of a child have
agreed to a change in the physical custody of the child without the court’s
approval, the parent who relinquished physical custody may be ordered to
pay child support to the parent who gained physical custody of the child even
though the custody order has not been modified to reflect the change in
custody.” Terry did not request child support payments from Fawna while
M.G. resided with him in Texas.
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[¶22.] In addition, SDCL 25-7-6.10 states that “[d]eviation from the schedule
in § 25-7-6.2 must be considered if raised by either party and made only upon the
entry of specific findings based upon any of the following factors: . . . (4) [on] [t]he
effect of agreements between the parents regarding extra forms of support for the
direct benefit of the child.” From January 2022 to August 2023, in addition to
caring for M.G. for approximately eleven months, Terry made the mortgage
payments for the marital home and also provided M.G.’s health insurance. These
were largely with the knowledge and consent of Fawna. Terry brought this
information to the attention of the court at trial. The circuit court abused its
discretion in not considering a deviation, especially for the months that Terry cared
for M.G. with Fawna’s consent.
III. Whether the circuit court abused its discretion in
limiting Terry’s visitation to the State of South
Dakota.
[¶23.] “The trial court has broad discretion in awarding custody of minor
children and likewise visitation rights; therefore, the trial court’s decision can only
be reversed upon a clear showing of an abuse of that discretion.” Dunham v.
Sabers, 2022 S.D. 65, ¶ 23,
981 N.W.2d 620, 632–33. In determining visitation,
“[o]ur brightest beacon remains the best interests of the child.” Pieper v. Pieper,
2013 S.D. 98, ¶ 15,
841 N.W.2d 781, 785. “The trial court may, but is not required
to, consider the following [Fuerstenberg] factors in determining the best interests
and welfare of the child: parental fitness, stability, primary caretaker, child’s
preference, harmful parental misconduct, separating siblings, and substantial
change of circumstances.” Schieffer,
2013 S.D. 11, ¶ 17,
826 N.W.2d at 634
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(alteration in original); see also Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, ¶ 22,
591 N.W.2d 798, 806–07. “In most instances, ‘it will be in the best interests of
children that they receive the love, affection, training, and companionship of their
noncustodial parent.’” Pieper,
2013 S.D. 98, ¶ 15,
841 N.W.2d at 786 (quoting
Chicoine v. Chicoine,
479 N.W.2d, 891, 893 (S.D. 1992)). This is not true, however,
“where the evidence establishes that exercise of visitation will be harmful to the
welfare of the children; in this event, the right of the noncustodial parent to visit
with his children can be limited, or, under extreme circumstances, prohibited
altogether.”
Id.
[¶24.] Here, the court ordered that the child be immediately returned to
South Dakota in the emergency pickup order issued on July 18, 2023, and served on
Terry in Texas. The court also ordered mediation to determine the parameters of
Terry’s visitation with the child pursuant to SDCL 25-4-56. Terry testified that he
was aware of the order but did not return the child because he did not have the
funds to bring her to South Dakota. Terry also did not comply with the ordered
mediation. Because of Terry’s noncompliance with the emergency order the court
granted Fawna physical and legal custody of M.G. with Terry being allowed “liberal
visitation” only in the State of South Dakota. The court also noted that, contrary to
the provisions of the South Dakota parenting guidelines at the time, Terry
introduced Callaway to M.G. when they had only been dating for four months.
[¶25.] However, the circuit court failed to make any findings regarding
whether the visitation parameters were in the best interests of M.G. Thus, the
court did not make sufficient findings to support its order limiting Terry’s visitation
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to the State of South Dakota. As a result, we reverse the visitation determination
and remand for further consideration and findings by the circuit court.
IV. Whether the circuit court abused its discretion in
awarding attorney fees.
[¶26.] Terry argues that the circuit court abused its discretion in awarding
attorney fees by “fail[ing] to properly consider relevant factors.” “Generally, trial
courts may award attorney fees in cases involving divorce, support, or alimony.”
Nickles v. Nickles, 2015 S.D. 40, ¶ 34,
865 N.W.2d 142, 154.
First, the court must determine what constitutes a reasonable
attorney’s fee. This requires consideration of (1) the amount and
value of the property involved, (2) the intricacy and importance
of the litigation, (3) the labor and time involved, (4) the skill
required to draw the pleadings and try the case, (5) the
discovery utilized, (6) whether there were complicated legal
problems, (7) the time required for the trial, and (8) whether
briefs were required. Second it must determine the necessity for
such fee. That is, what portion of that fee, if any, should be
allowed as costs to be paid by the opposing party. This requires
consideration of the parties’ relative worth, income, liquidity,
and whether either party unreasonably increased the time spent
on the case.
Id. (quoting Urbaniak v. Urbaniak,
2011 S.D. 83, ¶ 31,
807 N.W.2d 621, 628). “The
circuit court’s allowance or disallowance of attorney’s fees is reviewed for abuse of
discretion.”
Id. (citing Terca v. Terca,
2008 S.D. 99, ¶ 18,
757 N.W.2d 319, 324).
[¶27.] Here, the circuit court ordered Terry to pay 50% of Fawna’s attorney
fees. According to the court, it “considered Defendant’s failure to return the child,
Defendant’s filing of a matter in Texas without proper jurisdiction, Defendant’s
failure to timely file an Answer and the need for trial in making this
determination.” However, the court made no specific findings on these factors and
did not even address the other considerations set out by this Court.
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[¶28.] “This Court has consistently required trial courts to enter findings of
fact and conclusions of law when ruling on a request for attorney fees. Without
findings of facts and conclusions of law there is nothing to review.” Id. ¶ 35, 865
N.W.2d at 154. “The trial court is required to make specific findings based upon the
factors.”
Id. In light of this Court’s decision to reverse and remand on the issue of
arrearages, on remand, the circuit court should reconsider the award of attorney
fees under the two-step analysis set forth by this Court.
Conclusion
[¶29.] We hold that Terry waived any claim that the circuit court abused its
discretion by conducting a trial on the merits at the default hearing. However, by
not considering the numerous months of care and other support that Terry provided
to M.G. after leaving the marital home, the circuit court abused its discretion in
calculating the amount of arrearages. In addition, the circuit court failed to make
the necessary factual findings and legal conclusions for the visitation determination
and the award of attorney fees. As a result, we reverse and remand for a new
calculation of arrearages and further findings regarding the best interests of M.G.
and the award of attorney fees.
[¶30.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,
Justices, concur.
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