#27237-a-GAS

2015 S.D. 84

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

TRAVIS JAMES VAN DUYSEN, Plaintiff and Appellant,

v.

JENNIFER MARIE VAN DUYSEN, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIRST JUDICIAL CIRCUIT

BON HOMME COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE GLEN W. ENG

Judge

* * * *

SCOTT R. SWIER

MICHAEL A. HENDERSON

BROOKE SWIER SCHLOSS of

Swier Law Firm, Prof. LLC

Avon, South Dakota Attorneys for plaintiff 

and appellant. 

WANDA HOWEY-FOX of

Harmelink, Fox & Ravnsborg

 Law Office

Yankton, South Dakota Attorneys for defendant 

and appellee.

* * * *

CONSIDERED ON BRIEFS 

ON AUGUST 31, 2015

OPINION FILED 11/04/15
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SEVERSON, Justice

[¶1.] Travis Van Duysen appeals the circuit court’s grant of primary 

physical custody of his two children to their mother Jennifer Van Duysen. Travis 

asserts that the court abused its discretion when it relied on findings that were 

unsupported by the evidence. We affirm.

Background

[¶2.] Jennifer and Travis Van Duysen were married in 2007. They have two 

minor children together, a daughter and a son. Their daughter was born in 2005. 

Jennifer and the daughter lived with Jennifer’s parents for some time until Jennifer 

and Travis married. Their son was born in 2010. In 2011, Travis filed for divorce. 

Shortly before Travis filed for divorce, Jennifer and the children left the marital 

home. The details of the argument precipitating the separation were disputed at 

trial. Jennifer alleges that Travis held her up by the neck; Travis denied this but

admitted he grabbed her sweatshirt and spun her around to talk to him. 

Eventually, the parties agreed to divorce in 2014 on the grounds of irreconcilable 

differences. 

[¶3.] A two-day court trial was held on June 30 and July 1, 2014. The issues 

before the court were custody, visitation, child support, attorney fees, and alimony. 

A home study evaluation recommended granting Travis primary physical custody. 

The evaluators1 found Travis to be the favored parent based on the fitness and 

harmful parental misconduct categories of their evaluation. They found Jennifer to 

 

1. The home study evaluation was done by two evaluators. The “lead” evaluator 

testified at trial.
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be the favored parent in the category of primary caretaker. Finally, the evaluators 

determined that both parents were equally able to provide stability, noted that child 

preference was not applicable, and recommended that the children remain together. 

The court granted Jennifer primary physical custody. Travis appeals. The sole 

issue on appeal is whether the court abused its discretion in awarding primary 

physical custody of the children to Jennifer. Travis contends that the court based 

its decision on findings that were not supported by evidence, thereby abusing its 

discretion. 

Standard of Review

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

standard. Pietzrak v. Schroeder, 2009 S.D. 1, ¶ 37, 759 N.W.2d 734, 743. “The 

credibility of witnesses and the weight afforded to their testimony is also within the 

discretion of the [circuit] court.” Id. “An abuse of discretion occurs in a child 

custody proceeding when the [circuit] court’s review of the traditional factors 

bearing on the best interests of the child is scant or incomplete. The broad 

discretion of a trial court in making child custody decisions will only be disturbed 

upon a finding that the [circuit] court abused its discretion.” Id. 

Analysis

[¶5.] After the two-day trial, the circuit court noted that the home study 

evaluation mirrored the Fuerstenberg factors, and it discussed each finding, 

explaining whether it agreed or disagreed based on “the evidence, the credibility, 

[and] the testimony[.]” See Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, 591 N.W.2d 

798. The court determined that the evaluators’ decision placed great weight on two 
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incidents that were testified to at length during trial. One such incident involved a 

dispute at a Christmas program. Travis and his parents took the children to a local 

church Christmas program. Jennifer came later to pick the children up because 

Travis’s visitation was over. Jennifer testified that she asked her daughter to 

change her clothes so that the clothes could be returned to Travis. The daughter 

wanted to keep her clothes, and a tense situation and disagreement between 

Jennifer, Travis, and the children followed. Many of the details of the incident were 

disputed at trial. Jennifer allegedly yelled at the children and Travis and then 

stormed out of the church with the children crying. 

[¶6.] The other incident involved what the parties later admitted was an 

issue of miscommunication. On one of Travis’s visitation days, he was late to pick 

up the children. He failed to inform Jennifer that he was running late. Because 

Jennifer needed to get to work, she left the children at her parents’ house. 

However, she did not tell Travis where they were until an hour and a half after his 

scheduled pick-up time. Travis waited, but by the time she called he had already 

contacted the police, who escorted him to Jennifer’s parents’ house to get the 

children. 

[¶7.] The court expressed concern that the evaluators’ recommendation 

based on these two incidents was a “simplistic view of the facts” and that the 

incidents did not directly address how the children were cared for or how they 

interacted with people. The court noted that Jennifer’s behavior was not ideal, but 

it also stated that it was concerned with the incidents being used to “tip the scales”

in favor of Travis. In its findings of fact, the court stated that it did not place great 
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weight on those two incidents that occurred during the parties’ three-year divorce 

process.

[¶8.] Ultimately, the court determined that it was in the best interests of 

the children to remain with Jennifer.2 It discussed the facts relevant to fitness, 

stability, primary caretaker, child’s preference, harmful parental misconduct, and 

separation of siblings. It noted that the daughter, the eldest child, was doing very 

well in school and that she was receiving counseling for her benefit. It further 

found that the counselor had no concerns about Jennifer’s parenting. The counselor 

had not seen any injuries to the daughter or received any negative comments from 

her about Jennifer. This contradicted the home study’s reiteration of negative 

comments the daughter made to the evaluators when they talked to her at Travis’s 

home.

[¶9.] As to the mental and physical health of the parties, the court stated 

that it was “disregarding” the evaluators’ finding that Travis was the favored 

parent in this category. The court noted that the evaluators based their finding, in 

part, on other people’s observations that the children acted differently when their

father would come to get them depending on whether Jennifer was present or not. 

The court believed that this indicated tension between the parents rather than the 

fact that there is a problem with Jennifer.

 

2. Travis acknowledges that the circuit court is not required to follow the home 

study recommendation and states that he is not appealing the court’s 

rejection of the evaluation. See Maxner v. Maxner, 2007 S.D. 30, ¶ 17, 730 

N.W.2d 619, 623.
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[¶10.] The court found that the favoring of Travis by the evaluators in the 

category of harmful parental misconduct also went back to the two incidents 

discussed above. The court explained that despite those incidents, which did not 

reflect ideal parenting, placement of the children in either home would not cause 

injury, damage, or destruction to the children. Instead, the court stated that it was 

placing great weight on Jennifer being the primary caregiver and the fact that the 

children need stability.

[¶11.] As part of its findings of fact, the court expressed concern that Travis’s 

income taxes, which had been submitted into evidence, reflected some 

“questionable” deductions.3 When announcing its decision at the end of the trial, 

the court explained that it looks to income tax returns “to see whether there’s 

truthfulness to people.” The court also issued findings of fact that it was concerned 

about Travis’s truthfulness because of his tax returns. Finally, the court made 

 

3. In its findings, the court found:

The Plaintiff’s 2011 federal tax return reflects an expense of 

$11,255.00 for gas, fuel and oil; 

The Plaintiff also claims 100% depreciation for his vehicles; 

In this instance, the Plaintiff’s tax returns reflect that there is 

income from a farming operation as well [as] deductions that are 

questionable for purposes of deduction; 

The Plaintiff’s tax returns make this [c]ourt concerned about the 

Plai[n]tiff’s truthfulness; 

The “IRS apparently does not believe that people cheat on their 

taxes;” and 

Most people believe that they have a 99% chance of not getting 

caught. 
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findings related to the IRS. Travis contends that the court’s findings based upon 

Travis’s 2011 tax return are clearly erroneous because there is no evidence that he 

cheated on his tax returns. Further, Travis claims that these erroneous findings led 

the court to improperly question his credibility, and therefore, the court abused its 

discretion.

[¶12.] As we have stated before, “[t]he circuit court’s ‘findings of fact must be 

supported by the evidence and conclusions of law must in turn be supported by the 

findings of fact.’” In re J.D.M.C., 2007 S.D. 97, ¶ 18, 739 N.W.2d 796, 803. We have 

previously explained that the court has broad discretion in child custody matters; 

“[t]hat broad discretion includes discretion as to what evidence the trier of fact will 

rely on.” Pieper v. Pieper, 2013 S.D. 98, ¶ 29, 841 N.W.2d 781, 788. Further, “[t]he 

credibility of witnesses, the import to be accorded their testimony, and the weight of 

the evidence must be determined by the trial court, and we give due regard to the 

trial court’s opportunity to observe the witnesses and examine the evidence.” Baun 

v. Estate of Kramlich, 2003 S.D. 89, ¶ 21, 667 N.W.2d 672, 677.

[¶13.] Nothing in the record indicates whether the deductions are actually 

questionable or that the depreciation is not accurate or that the IRS believes people 

cheat on taxes. Further, there was absolutely nothing to suggest that 99% of all 

people believe that they will not get caught if they cheat on taxes. Although the 

court had no evidentiary basis on this record to make these findings, this “inclusion 

of certain unsupported findings . . . is not sufficient cause for reversing a judgment . 

. . [that] is otherwise sufficiently supported by findings of fact based upon the 

evidence.” See Mokrejs v. Mokrejs, 226 N.W. 264, 265 (S.D. 1929) (citing Steensland 
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v. Steensland, 43 S.D. 416, 179 N.W. 495 (1920)). “[T]he facts that are clearly 

established are such as to fully warrant the court in giving [Jennifer] the custody of 

the children . . . it is therefore of no importance if . . . the court went . . . too far in 

findings as to other facts.” Steensland, 43 S.D. 416, 179 N.W. at 496. Indeed, the 

record establishes that the court heard from several witnesses and had sufficient 

evidence from which it could determine the best interests of the children. After a 

review of the entire record, we cannot say that the court abused its discretion when 

it determined that awarding primary physical custody of the children to their 

mother was in their best interests. Instead, the court carefully considered factors 

relevant to the best interests of the children and awarded primary physical custody 

appropriately. We affirm.

[¶14.] Both parties have requested attorney’s fees. We deny their requests.

[¶15.] GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN, 

Justices, concur.