#25792-a-SLZ 

2011 S.D. 56 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

JEREMIAH S. SIMUNEK, Plaintiff and Appellee, 

 

v. 

ASHLEY (SIMUNEK) AUWERTER, Defendant and Appellant. 

 

 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SEVENTH JUDICIAL CIRCUIT 

 PENNINGTON COUNTY, SOUTH DAKOTA 

* * * * 

THE HONORABLE A. PETER FULLER 

Judge 

* * * * 

TERRI L. WILLIAMS of 

Gunderson, Palmer, Nelson & 

 Ashmore LLP 

Rapid City, South Dakota Attorneys for defendant 

 and appellant. 

DEBRA D. WATSON 

Rapid City, South Dakota Attorneys for plaintiff 

 and appellee. 

* * * * 

CONSIDERED ON BRIEFS 

ON AUGUST 22, 2011 

 OPINION FILED 09/07/11
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ZINTER, Justice 

[¶1.] Ashley Auwerter (Mother) and Jeremiah Simunek (Father) married, 

had C.S.S. (Child), and later divorced. Mother and Father agreed to share legal 

custody, with Mother having primary physical custody. Shortly before Child 

entered kindergarten, Father moved to obtain primary physical custody. The 

circuit court granted Father’s motion and Mother appeals. We affirm because the 

court’s findings and conclusions reflect a balanced and systematic application of the 

relevant factors governing child custody. 

Facts and Procedural History 

[¶2.] After two years of marriage, Mother and Father separated. Mother 

obtained primary physical custody of Child after the separation. Father 

subsequently filed for a divorce. Father proposed that Mother remain the primary 

physical custodian of Child and that he be allowed liberal parenting time. Mother 

and Father agreed to this parenting plan, which was incorporated in the divorce 

decree. 

[¶3.] Shortly after the separation, Father began dating Britni Mendel 

(Stepmother). Child met Stepmother one month after Father and Mother separated 

and before the divorce. Father and Stepmother later married and had a son (HalfBrother). Father and Stepmother live on Father’s family’s ranch. Father works for 

his family’s construction and hotel businesses. He has enrolled Child in activities in 

the Hot Springs area. 

[¶4.] Mother owns a home in Rapid City and is employed by the City of 

Rapid City. She has an associate’s degree in business as well as a bachelor’s degree 
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in communication. Mother has enrolled Child in various activities in the Rapid City 

area. 

[¶5.] Before Child was to begin kindergarten, Father moved to change 

primary physical custody. The circuit court ordered a child custody evaluation. The 

evaluator recommended a shared parenting plan. Mother requested a second child 

custody evaluation. The second evaluator also recommended a shared parenting 

plan, but suggested that Father have primary physical custody of Child when Child 

began kindergarten. Based upon these evaluations, Mother and Father entered 

into a second shared parenting agreement. As a part of this plan, Mother and 

Father agreed that Father would obtain primary physical custody when Child 

started kindergarten. Child was subsequently enrolled in kindergarten in Hot 

Springs. 

[¶6.] When the time for kindergarten neared, Mother moved to modify the 

parenting plan and obtain another child custody evaluation. The court ordered 

another child custody evaluation. The evaluator noted that both parents had much 

to offer Child, but opined that it was in Child’s best interests that Child be placed in 

Mother’s primary physical custody. 

[¶7.] Trial was held in August of 2010. After entry of findings and 

conclusions regarding the factors guiding child custody determinations, the court 

awarded Father primary physical custody. Mother appeals claiming that the circuit 

court abused its discretion in awarding Father primary physical custody. 
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Decision 

[¶8.] We review child custody decisions under the abuse of discretion 

standard of review. Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, ¶ 22, 591 N.W.2d 

798, 807 (citations omitted). “An abuse of discretion occurs in a child custody 

proceeding when the trial court’s review of the traditional factors bearing on the 

best interests of the child is scant or incomplete.” Kreps v. Kreps, 2010 S.D. 12, ¶ 

25, 778 N.W.2d 835, 843 (quoting Pietrzak v. Schroeder, 2009 S.D. 1, ¶ 37, 759 

N.W.2d 734, 743). “[W]e . . . uphold the trial court’s findings of fact unless they are 

clearly erroneous.” Kreps, 2010 S.D. 12, ¶ 25, 778 N.W.2d at 843 (citations 

omitted). Findings of fact are clearly erroneous when our “review of the evidence 

leaves . . . a definite and firm conviction that a mistake has been made.” Id.

(citations omitted). 

[¶9.] The circuit court’s review of a parent’s request to change child custody 

is governed by the best interests of the child, considering the child’s temporal, 

mental, and moral welfare. SDCL 25-4-45; Fuerstenberg, 1999 S.D. 35, ¶ 22, 591 

N.W.2d at 806. “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.” Kreps, 2010 S.D. 12, 

¶ 26, 778 N.W.2d at 843 (citing Fuerstenberg, 1999 S.D. 35, ¶¶ 24-34, 591 N.W.2d at 

807-10). “We encourage trial courts to take a balanced and systematic approach” 

when applying the factors relevant to a child custody proceeding. Fuerstenberg, 

1999 S.D. 35, ¶ 23, 591 N.W.2d at 807. 
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[¶10.] The circuit court applied the Fuerstenberg factors, observing that most 

of the factors favored neither parent. The court, however, noted that Father’s 

physical custody would avoid separating siblings. Generally, siblings and halfsiblings “should not be separated absent compelling circumstances.” Id. ¶ 32, 591 

N.W.2d at 809 (citing Mayer v. Mayer, 397 N.W.2d 638, 642 (S.D. 1986)). However, 

this is not an absolute rule, and “maintaining children in the same household 

should never override” what is in the best interests of a child. Id. (quoting Crouse v. 

Crouse, 1996 S.D. 95, ¶ 21, 552 N.W.2d 413, 419). Separating siblings is “one of 

several factors courts consider in determining the best interests of the children.” 

Hathaway v. Bergheim, 2002 S.D. 78, ¶ 32, 648 N.W.2d 349, 354 (Gilbertson, C.J., 

dissenting). 

[¶11.] Mother argues that the court did not consider the totality of the 

circumstances and instead considered the separation of siblings to be controlling as 

a matter of law. We disagree. Concededly, the court found that separating Child 

and Half-Brother favored Father and that the separation of siblings was one of the 

few factors that was not equal for Mother and Father. But the court did not 

indicate that this factor was controlling to the exclusion of all others. The court’s 

review of the relevant factors spans several pages of trial transcript. The court did 

not disregard all other factors: it made findings on each relevant factor. The court 

took a balanced and systematic approach in applying the child custody factors. 

[¶12.] Mother also challenges the court’s finding that Father has the ability 

to provide Child with guidance and good modeling behavior. She specifically 
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contends that Father’s history of alcohol use and Father’s driving record make him 

an unfit parent. 

[¶13.] Father had been convicted of three reckless driving offenses, one 

careless driving offense, and nine speeding violations. Three of the convictions 

resulted from arrests for driving while under the influence of alcohol. Child was in 

Father’s care during two of the three arrests. On one occasion, Child was in the car. 

One arrest occurred when Father was driving 104 miles per hour in a seventy-mileper-hour zone. 

[¶14.] A mental health and chemical dependency counselor evaluated 

Father’s history with alcohol. The counselor’s diagnosis was “alcohol abuse.” 

Nevertheless, the counselor opined that Father had changed his behavior and 

matured, noting that the prior incidents occurred when Father was in his early 

twenties. 

[¶15.] The court heard the evidence regarding Father’s history of alcohol use 

and driving record, including live testimony from the alcohol counselor. The court 

specifically addressed both issues, finding that Father had changed his behavior 

and was a fit parent. Considering the court’s first-hand opportunity to observe the 

counselor testify on these issues, we find no clear error in the court’s related 

findings.* 

* Mother argues that the alcohol counselor ignored an eight-month-old arrest 

when opining that Father’s alcohol abuse was a problem that he had 

outgrown. However, the alcohol counselor testified live at trial and 

acknowledged the most-recent arrest. 
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[¶16.] This case involved conflicting child custody evaluations. One child 

custody evaluator recommended that Father have primary physical custody when 

Child started kindergarten. Another child custody evaluator recommended that 

Mother have primary physical custody. It is within the circuit court’s discretion to 

choose between conflicting experts. See Wise v. Brooks Constr. Servs., 2006 S.D. 80, 

¶ 33, 721 N.W.2d 461, 472-73 (quoting Sander v. Minnehaha Cnty., 2002 S.D. 123, ¶ 

31, 652 N.W.2d 778, 786) (explaining that a “trier of fact is free to accept all of, part 

of, or none of, an expert’s opinion”); see also In re J.A.H., 502 N.W.2d 120, 125 (S.D. 

1993) (stating that it is within the trial court’s discretion to determine the best 

interests of the child when the court is presented with conflicting testimony 

regarding the termination of parental rights). The circuit court did not abuse its 

discretion in choosing one of the two conflicting child custody evaluator’s opinions. 

[¶17.] In the final analysis, this is one of those difficult cases where the court 

was forced to choose between two satisfactory parents. “Choosing between two 

satisfactory options [for child custody] falls within a judge’s discretion.” Arneson v. 

Arneson, 2003 S.D. 125, ¶ 14, 670 N.W.2d 904, 910 (citations omitted). Both Mother 

and Father made mistakes as parents. Father introduced Child to Stepmother at 

an inappropriate time and he had prior problems with alcohol. Mother made 

disparaging comments about Father in the presence of Child. But the court found 

that Mother and Father recognized their faults and corrected their behavior. Thus, 

the court was forced to choose between two fit parents who loved and supported 

Child. Ultimately, Child was going to start school, the parents lived in different 

communities, and the equal shared parenting arrangement was no longer workable. 
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The court was forced to make a choice, and it did not abuse its discretion in 

choosing one of these two satisfactory options for primary physical custody. 

[¶18.] We deny both parties’ requests for appellate attorney’s fees. 

[¶19.] GILBERTSON, Chief Justice, and KONENKAMP and SEVERSON, 

Justices, concur. 

[¶20.] WILBUR, Justice, and MEIERHENRY, Retired Justice, did not 

participate.