#24760-a-SLZ 

2008 SD 96 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

KIRK HOGEN, Plaintiff and Appellee, 

 v. 

ELIZABETH (HOGEN) PIFER Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FIRST JUDICIAL CIRCUIT 

CLAY COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE STEVEN R. JENSEN 

Judge 

* * * * 

MELISSA B. NICHOLSON of 

Nicholson & Nicholson Attorneys for plaintiff 

Sioux Falls, South Dakota and appellee. 

KAREN L. CREW 

MICHAEL B. CREW of 

Crew and Crew Attorneys for defendant 

Sioux Falls, South Dakota and appellant. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON AUGUST 26, 2008 

 OPINION FILED 10/08/08 
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ZINTER, Justice 

[¶1.] Approximately one year after her divorce, Elizabeth Pifer moved the 

circuit court to relocate the parties’ minor son from South Dakota to Illinois. The 

circuit court denied Pifer’s motion, and Pifer appeals. We affirm. 

I 

[¶2.] Kirk Hogen and Elizabeth (Hogen) Pifer entered into a stipulation and 

agreement for divorce on May 19, 2006. At the time, both parties lived in 

Vermillion. Under the divorce decree, they shared joint legal custody of their son 

Jake (age eleven at the time). Pifer had primary physical custody, and Hogen had 

rights of visitation. Hogen’s visitation included two evenings during the week and 

alternating weekends. Every other mid-week visitation included an overnight. 

Neither party was prohibited from moving more than a de minimus distance from 

the Vermillion area after the divorce. 

[¶3.] One year after the divorce, Pifer sent Hogen a notice of intent to 

relocate Jake to Channahon, Illinois so that she could live with her boyfriend Paul 

Pifer, whom she planned to marry that summer. Hogen objected and moved for a 

hearing on the matter. Thereafter, Pifer formally moved to allow the relocation. 

[¶4.] The parties retained Dr. Andre Clayborne to conduct an evaluation1 of 

Pifer’s request to relocate. Before Dr. Clayborne’s evaluation was completed in 

October of 2007, Pifer married Paul Pifer. In his evaluation, Dr. Clayborne opined 

that Jake was currently living in the best arrangement in Vermillion, an 

1. Dr. Clayborne had performed the initial home study for the divorce. 
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arrangement that involved maximum contact with both parents. Dr. Clayborne also 

opined that he “was not convinced that the move would serve Jake’s best interest in 

any way. It would be [my] opinion that under the given circumstances that Jake is 

thriving in his current environment.” Dr. Clayborne did, however, note that 

because of Jake’s close emotional connection to Pifer, if Pifer were to move to 

Illinois, it would be in Jake’s best interest to move with her. 

[¶5.] A court trial was held on October 25-26, 2007. At trial, Dr. Clayborne 

focused on Pifer and Jake’s close relationship, testifying that Hogen and Jake “have 

a good relationship as well, but . . . the emotional connection is with mom.” The 

circuit court acknowledged Dr. Clayborne’s evaluation and trial testimony favoring 

Pifer. Although the court indicated it did “not have any real quarrel with Dr. 

Clayborne’s decision in terms of emotional attachment,” the court observed that Dr. 

Clayborne downplayed the attachment Jake had with his father. The court further 

observed that it couldn’t “say anything negative about either parent,” and found 

that “[i]t’s very clear both parties are fit.” 

[¶6.] Regarding Jake (who had turned thirteen the day before trial), the 

court found that he was “well-adjusted,” did “well in school and otherwise,” and 

“appear[ed] to have a good handle on life.” The court noted that Jake was in 

seventh grade, was an “A” student and “star athlete,” had friends and extended 

family in Vermillion, and was “very popular.” After further noting that Jake had 

grown up in Vermillion, the court found that moving to Illinois “would be a 

significant adjustment” and would “disrupt” his stability. The circuit court was also 

concerned about visitation problems for Hogen if Jake moved. The court explained 
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that Hogen worked as a golf professional, and summer was his busy season 

requiring approximately sixty-hour work weeks. Pifer, on the other hand, had two 

and one-half months off during the summer. The court opined that Pifer’s proposed 

move to Illinois, which required summer visitation with Hogen in Vermillion, would 

be counter-intuitive because Hogen would be spending so much visitation time 

working. 

[¶7.] The court also noted that although Jake expressed a preference to 

move, he had not spent any meaningful time in Illinois. Further, following its own 

personal interview of Jake, the court found that Jake did not have a reason for his 

preference. The court found that “[Jake’s] preference relat[ed] more to his desire to 

please his mother than his own interests in the case.” 

[¶8.] The court ultimately found that based on Jake’s age, his involvement 

in school, his connection with the community, and his relationship with Hogen, 

stability favored Jake living in Vermillion. The court ultimately concluded that it 

was not in Jake’s best interest to move to Illinois. 

II 

[¶9.] SDCL 25-5-13 provides that “[a] parent entitled to the custody of a 

child has the right to change his residence, subject to the power of the circuit court 

to restrain a removal which would prejudice the rights or welfare of the child.” 

This statute requires the circuit court to determine whether it is in the best 

interest of the child to relocate out of state. Maxner v. Maxner, 2007 SD 30, ¶23, 

730 NW2d 619, 625. In our review of a custody decision, “we decide only whether 

the court abused its discretion.” Id. ¶11, 730 NW2d at 622. Abuse of discretion “is 
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a fundamental error of judgment, a choice outside the range of permissible choices, 

a decision, which, on full consideration, is arbitrary or unreasonable.” Id. This 

standard does not mean that a trial court’s custody decision remains inviolate. 

“Rather, it is a recognition that trial courts are in a better position to make these 

difficult choices because the parents are present in the courtroom and the judge is 

better able to assess [the situation] firsthand.” Id. 

III 

[¶10.] At the hearing, Pifer testified that she would not relocate to Illinois if 

the court would not allow Jake to move with her. Pifer first argues that the circuit 

court improperly focused on this testimony in denying her motion to relocate. She 

contends that the circuit court’s consideration of her willingness to stay in 

Vermillion isolated the “maximum continuing contact” factor to the exclusion of 

other relevant factors. She also contends that affirming the circuit court’s decision 

would result in no out-of-state relocations. We disagree with both contentions. 

[¶11.] In Zepeda v. Zepeda, this Court rejected reliance on a single factor in 

favor of a balanced consideration of multiple factors when making a custody 

determination. 2001 SD 101, ¶15, 632 NW2d 48, 54 (citing Fuerstenberg v. 

Fuerstenberg, 1999 SD 35, ¶31, 591 NW2d 798, 809). Those factors generally 

include fitness, stability, primary caretaker, child’s preference, harmful parental 

misconduct, separating siblings, and substantial change in circumstances. 

Fuerstenberg, ¶¶24-33, 591 NW2d at 807-10. 

[¶12.] Contrary to Pifer’s argument, this case is unlike Fortin v. Fortin, 500 

NW2d 229 (SD 1993). In that case the circuit court “ignore[d] several factors” and 
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prohibited an out-of-state relocation “for the sole reason that the move would 

disrupt the noncustodial father’s visitation with and influence over his son[.]” Id. at 

232. In this case, the circuit court issued seventy-three findings of fact and fourteen 

conclusions of law reflecting a balanced consideration of all relevant factors. The 

court’s consideration of Pifer’s willingness to stay in Vermillion was mentioned only 

once, and the court did not focus on “maximum continuing contact.”2 Instead, the 

court considered a number of factors including Jake’s age, his relationship with his 

father, his involvement in the school and community, his friends and extended 

family in Vermillion, and the finding that a move to Illinois would be a significant 

adjustment disrupting his stability. Therefore, the circuit court did not erroneously 

focus solely on a custody arrangement that would ensure maximum contact with 

both parents. 

[¶13.] For the same reason, the circuit court’s decision is no precedent for a 

blanket rule prohibiting all out-of-state relocations. On the contrary, the court’s use 

of a balanced approach considering a number of factors cannot be precedent for a 

per se rule. Furthermore, the circuit court specifically noted that this was the 

unusual case where both parents had spent considerable effort successfully coparenting Jake, which enabled Jake to thrive and succeed in the Vermillion 

community. 

[¶14.] Pifer also argues there was insufficient evidence for the circuit court to 

deny her motion to relocate. Pifer argues that Dr. Clayborne opined that it would 

2. In fact, the circuit court never utilized that phrase in either its findings or 

conclusions of law. 
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be in Jake’s best interest to move with her to Illinois, and therefore “there is no 

evidence upon which the [circuit] court could have concluded that it was in Jake’s 

best interests to remain in Vermillion with his father if his mother did relocate.” 

Dr. Clayborne, however, indicated in his October 2007 follow-up evaluation that it 

would not be in Jake’s best interests to move: 

On the issue of moving, it is apparent that the move is being 

made to benefit Liz and Paul. [I] was not convinced that the 

move would serve Jake’s best interest in any way. It would be 

[my] opinion that under the given circumstances that Jake is 

thriving in his current environment. He is a straight “A” 

student, a star athlete, has many friends, and is much 

respected in the Vermillion community. Currently, he has 

access to both of his parents and is able to see them as often as 

he likes. From [my] perspective for Jake, he is currently in the 

best living arrangement. 

Although Dr. Clayborne’s trial testimony was more favorable to Pifer, he essentially 

held to his original opinion, only slightly favoring Pifer if the move was made. Dr. 

Clayborne testified: 

You know, again I struggled with that particular concept. . . . I 

think I made the statement inside of the report, realistically if 

both parents are staying in town or were to stay in town, this is 

probably the ideal situation for him. The move I don’t 

necessarily see as being in his best interest per se, but again 

weighing that – between that and the emotional connection 

with his mom, I guess I would err on the side of placing him 

with his mom. 

(Emphasis added). 

[¶15.] Considering all of Dr. Clayborne’s opinions together with the circuit 

court’s considerations, there was substantial evidence to support the court’s 

decision. Further, this is a case in which the court recognized that both parents had 

done an excellent job of co-parenting for the benefit of their son. As we stated in 
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Maxner, “‘[c]hoosing between two satisfactory options falls within a judge’s 

discretion.’” 2007 SD 30, ¶11, 730 NW2d at 622 (quoting Arneson v. Arneson, 2003 

SD 125, ¶14, 670 NW2d 904, 910). This is such a case. 

[¶16.] Hogen submitted a motion for appellate attorney fees. The motion is 

accompanied by an itemized and verified statement of the costs incurred pursuant 

to SDCL 15-26A-87.3. An award of appellate attorney fees is permissible if they are 

accompanied by a verified, itemized statement of the legal services rendered and if 

the attorney fees are otherwise allowable. Id. Attorney fees are allowable in 

domestic relation cases, “consider[ing] the property owned by each party, the 

relative incomes, the liquidity of the assets and whether either party unreasonably 

increased the time spent on the case.” Barnes v. Matzner, 2003 SD 42, ¶24, 661 

NW2d 372, 379 (additional citation omitted). These financial factors do not appear 

in this record, and there does not appear to be evidence that either party has 

proceeded unreasonably. We also “examine the fee request[ ] from the perspective 

of whether the party’s appellate arguments carried any merit.” Arneson, 2003 SD 

125, ¶38, 670 NW2d at 917. Considering the closeness of this case involving two fit 

parents, we deny Hogen’s motion. 

[¶17.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and 

MEIERHENRY, Justices, concur.