#24974-rev & rem-PER CURIAM 

2009 SD 72

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

JEFFREY M. BAKER, Plaintiff and Appellant, 

 v. 

AMANDA HOLLAND, Defendant and Appellee. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE SECOND JUDICIAL CIRCUIT 

LINCOLN COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE DOUGLAS E. HOFFMAN 

Judge 

* * * * 

TIMOTHY J. KRAMER of 

Kramer Law Office PLC 

Sioux Center, Iowa Attorneys for plaintiff 

and appellant. 

STEPHANIE R. AMIOTTE of 

Moore, Rasmussen, Kading 

 & Kunstle, LLP 

Sioux Falls, South Dakota Attorneys for defendant 

and appellee. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON APRIL 27, 2009 

 OPINION FILED 8/12/09 
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PER CURIAM 

[¶1.] Jeffrey Baker appeals the circuit court's order in this child custody 

proceeding. A provision in the circuit court's order substantially and automatically 

reduced Jeffrey's noncustodial parenting time1 based solely on whether Amanda 

Holland, the mother, worked weekends. Because that reduction in noncustodial 

parenting time is not supported by findings based on the record, it constitutes an 

abuse of discretion, we reverse and remand. 

FACTS 

[¶2.] Jeffrey and Amanda are the parents of Brady Baker. Brady was born 

November 27, 2006. Jeffrey and Amanda were not married but resided together 

until December 2007. The court found that while they lived together both parents 

were significantly involved in the care of Brady. Both parents also have an 

additional child. Amanda's son has shared a home with Brady since his birth. The 

court found that both parents were fit and stable individuals, had been significant 

caretakers and had not demonstrated any harmful parental misconduct. The court 

awarded joint legal custody with primary physical custody to Amanda. 

[¶3.] The parents' work schedule, and the resulting impact on noncustodial 

parenting time, is the primary issue involved in this appeal. Jeffrey worked 

weekdays from 8 a.m. to 5 p.m. Amanda worked two days a week from 9 a.m. to 8 

p.m.; three days a week from 9 a.m. to 5 p.m. and every Saturday. Jeffrey was 

1. As the result of a recent legislative enactment, the use of the term 

"visitation" has been revised to "noncustodial parenting time." See SDCL 25-

4A-10; 2008 SD Sess Laws ch 126, § 2. 
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granted noncustodial parenting time on an alternating basis: one week he would 

have Brady on Tuesday evening from 5 p.m. to 8 p.m. (three hours) and Friday from 

5 p.m. to Sunday at 9 a.m. (two overnights). The next week he would have Brady on 

Tuesday from 5 p.m. to 8 a.m. (overnight) and Friday from 5 p.m. to Saturday at 5 

p.m. (overnight). The order also provided for an alternative noncustodial parenting 

time schedule in the event Amanda no longer worked weekends: 

ORDERED that when [Amanda] is no longer working on 

Saturdays or the weekends, she shall be entitled to every 

other weekend with the minor child and [Jeffrey] shall be 

entitled to visitation on alternating weekends as set forth 

in paragraphs A and D. 

* * * 

A. Week One- [Jeffrey] shall exercise visitation with 

the parties' minor child on alternating Fridays beginning 

at 5:00 p.m. overnight until Saturday at 5:00 p.m. 

* * * 

D. During the week Jeffrey exercises Friday through 

Sunday visitation (Week Two) he shall be entitled to one 

mid-week visit beginning at 5:00 p.m. and ending at 8:00 

p.m. on Tuesdays. 

Since the record indicated that Amanda no longer worked weekends, the alternative 

noncustodial parenting time schedule was implemented. However, the terms of the 

alternative schedule contained inconsistencies and led to confusion for the parties. 

The order gave Jeffrey parenting time every other weekend from Friday at 5:00 

p.m. until Saturday at 5:00 p.m. and then under provision D. there was presumably 

a three-hour noncustodial parenting time Tuesday from 5 p.m. to 8 p.m. The terms 

of the order appear inconsistent in that there was no specific award of noncustodial 

parenting time from Friday through Sunday for Jeffrey as prefaced in clause D. to 
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trigger the three-hour period. Amanda interpreted the provision to mean: "once 

Mother is no longer working on Saturdays or weekends, Father's visitation will 

essentially revert to alternating Fridays at 5:00 p.m. until Saturday at 5:00 p.m." 

Brief for Appellee at 3 (Appeal No. 24974). Jeffrey filed a motion to reconsider the 

noncustodial parenting time order and the record demonstrates that the varying 

interpretations of the order were brought to the court's attention.2 The court 

denied the motion to reconsider but e-mailed the parties that Amanda's attorney 

was correct in interpreting this provision as allowing Jeffrey parenting time on 

alternating Fridays to Saturday overnight and Tuesday for three hours; now that 

Amanda was not working every Saturday. As a result, the previous schedule giving 

Jeffrey a full weekend of parenting time and the weekday overnight has been 

eliminated. 

[¶4.] Jeffrey appeals contending the circuit court abused its discretion in 

ordering the weekend work clause and the corresponding reduction in his parenting 

time. 

DISCUSSION 

[¶5.] A circuit court's order for noncustodial parenting time is reviewed 

under the abuse of discretion standard. L.S. v. C.T., 2009 SD 2, ¶ 28, 760 NW2d 

145, 153. "The term 'abuse of discretion' refers to 'a discretion exercised to an end 

or purpose not justified by, and clearly against, reason and evidence.'" Id. (citations 

2. This arrangement lasted only a matter of weeks before the parties disputed 

the application of the weekend work provision when Amanda had her work 

schedule changed. 
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omitted). "However, the trial court's exercise of discretion is not uncontrolled and 

must have a sound and substantial basis in the testimony." Weber v. Weber, 529 

NW2d 190, 191 (SD 1995). 

[¶6.] The primary focus always remains on the best interests of the child. 

Id. In determining the best interests of a child, the court must consider the child's 

"temporal and mental and moral welfare." SDCL 25-4-45. "The trial court may, but 

is not required to, consider the following 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." Pietrzak v. Schroeder, 2009 SD 1, ¶ 41, 759 NW2d 734, 

744. 

[¶7.] The disputed provision of the noncustodial parenting time order in this 

case provides: 

A. Week One- [Jeffrey] shall exercise visitation 

with the parties' minor child on alternating 

Fridays beginning at 5:00 p.m. overnight 

until Saturday at 5:00 p.m.; 

B. Week Two- [Jeffrey] shall exercise visitation 

with the parties' minor child on alternating 

Fridays beginning at 5:00 p.m. until Sunday 

at 9:00 a.m. 

C. During the week that [Jeffrey] exercises 

Friday through Saturday visitation (Week 

One), he shall be entitled one mid-week 

overnight visit on Tuesdays. 

D. During the week that [Jeffrey] exercises 

Friday through Sunday visitation (Week 

Two) he shall be entitled to one mid-week 

visit beginning at 5:00 p.m. and ending at 

8:00 p.m. on Tuesdays; it is hereby further 
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ORDERED that when [Amanda] is no longer working on 

Saturdays or the weekends, she shall be entitled to every 

other weekend with the minor child and [Jeffrey] shall be 

entitled to visitation on alternating weekends as set forth 

in paragraphs A and D. 

Therefore, when Amanda worked Saturdays or weekends Jeffrey received parenting 

time from Friday at 5:00 p.m. to Saturday at 5:00 p.m. and Tuesday overnight 

(Week One). The following week (Week Two) he received parenting time Fridays at 

5:00 p.m. until Sunday at 9:00 a.m. and Tuesday evenings from 5 p.m. to 8 p.m. 

However, when Amanda no longer worked Saturdays or weekends Jeffrey received 

parenting time every other weekend; consisting of Friday at 5:00 p.m. to Saturday 

at 5:00 p.m. and then presumably Tuesday from 5 p.m. to 8 p.m. As previously 

mentioned, the Tuesday parenting time is contradictory because clause D. applies 

when Jeffrey exercises his time Friday through Sunday, which the court eliminated 

because Amanda did not work weekends.3 

3. For a child this age the parenting guidelines provide: 

Alternate parenting plans: (1) The noncustodial parent 

has the child up to three times per week for a few hours 

on each visit, on a predictable schedule; or (2) Same as (1) 

but with one overnight per week; or (3) Child spends time 

in alternate homes, but with more time in one than the 

other with two or three overnights spaced regularly 

throughout the week. This arrangement requires an 

adaptable child and cooperative parents. 

The circuit court's order without application of the weekend work clause 

allowed Jeffrey ample parenting time; certainly more than the minimum 

contemplated by the guidelines. The weekend work clause, based on no other 

factor than Amanda's weekend work schedule, reduced Jeffrey's parenting 

time to the lower range contemplated by the guidelines. 
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[¶8.] Clearly, the weekend work clause contained in the noncustodial 

parenting time order effectuated a dramatic reduction in Jeffrey's time with his 

child (four overnights reduced to one overnight). However, the court's findings of 

fact and conclusions of law contradicted such a reduction in noncustodial parenting 

time. The court's findings indicated that Jeffrey was significantly involved in the 

care of his child, was fit as a parent, stable, and equally provided the child love and 

affection. Significantly, the court did not mention or explain the rationale of the 

weekend work clause in its written findings or conclusions. 

[¶9.] While clearly Amanda should have time on the weekend with the child, 

there are no findings of fact or evidence in the record that supported what is 

essentially a reduction to one night for Jeffrey based solely on Amanda's weekend 

work schedule. Likewise, the court's treatment of this issue in pronouncing its oral 

ruling was inconsistent with the weekend work provision in the order: 

It's probably not going to be the case that Amanda is 

working every Saturday forever. I mean, she already has 

a fairly responsible position and is making—you know—a 

salary that is commensurate with a responsible position. 

And –you know—at some point people are given the 

benefit of being able to have at least every other weekend 

free to themselves to attend to personal affairs and not 

have to work so much. 

* * * 

When her situation changes, I think it would be 

reasonable to change it so that he would—so that dad 

would go to—you know—just the usual alternating 

weekends, Friday night until Sunday night. 

[¶10.] Additionally, the elimination of the overnight during the weekdays 

was unsupported by the record. Certainly, Jeffrey's fitness and relationship with 

his child, as recognized under the court's original order, was not exclusively 
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determined by Amanda's weekend work schedule. The corresponding reduction in 

Jeffrey's parenting time and how this impacted the best interests of the child was 

not considered anywhere in the record; this constitutes an abuse of discretion. The 

error is only compounded by the internal inconsistencies that appear in the 

noncustodial parenting time order as demonstrated by the parties' confusion as to 

the effect of the weekend work clause. 

[¶11.] Therefore, we reverse and remand for the circuit court to reconsider 

noncustodial parenting time with due regard to the best interests of the child in 

light of the parties existing work schedules and to render appropriate supportive 

findings. 

Appellate Attorney Fees 

[¶12.] Amanda's attorney has filed a request and submitted an itemization 

for appellate attorney fees in this matter. See SDCL 15-26A-87.3. Jeffrey has not 

filed a request for appellate attorney fees. Because we reverse and remand, 

Amanda's request for attorney fees is denied. 

[¶13.] GILBERTSON, Chief Justice, KONENKAMP, ZINTER, 

MEIERHENRY, and SEVERSON, Justices, participating.