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2013 S.D. 70

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

BOBBIE M. SEVERSON, f/k/a 

BOBBIE M. HUTCHINSON, Plaintiff and Appellant,

v.

KENNETH N. HUTCHINSON, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SIXTH JUDICIAL CIRCUIT

STANLEY COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JOHN L. BROWN

Judge

* * * *

ROSE ANN WENDELL

Pierre, South Dakota Attorney for plaintiff

and appellant. 

DAVID W. SIEBRASSE

Pierre, South Dakota Attorney for defendant 

and appellee.

* * * *

CONSIDERED ON BRIEFS 

ON AUGUST 27, 2013

OPINION FILED 09/25/13
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WILBUR, Justice 

[¶1.] Kenneth Hutchinson (Father) and Bobbie Severson (Mother) are the 

parents of five children. The trial court awarded primary physical custody of the 

children to Father. Mother appeals. We affirm.

FACTS AND PROCEDURAL BACKGROUND

[¶2.] Mother and Father were married in 1997. Five children were born to 

the marriage: two daughters, M.L.H. and A.M.H.; and three sons, J.R.H., Z.C.B.H., 

and M.J.H. 

[¶3.] In March 2009, Father was removed from the marital home as a result 

of an investigation by the Department of Social Services. The investigation 

commenced because of Father’s alleged abuse of one of the children. Father 

successfully completed the requirements of parenting classes and the allegations of 

abuse were eventually found to be “unsubstantiated with concern.”* Also during 

 

* At the permanent custody hearing on August 16, 2012, Father testified on 

cross-examination as to his understanding of what “unsubstantiated with 

concern” meant:

A. The concerns were not listed. That was the bottom 

statement from the DSS report[—]unsubstantiated with 

concern.

Q. ([Mother’s counsel]) Well, you met with them, didn’t you, had 

meetings with them during that time, during that 18-month 

investigation?

A. That’s correct.

Q. And what’s your understanding of what their concerns were?

. . . .

A. The concerns they had were my raising my voice to the

children and use of spanking.
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this time, Mother obtained a temporary protection order against Father, but that 

order was eventually modified to a civil restraining order. 

[¶4.] In an effort to salvage their marriage following the Department of 

Social Services’ investigation, the couple and the children began to reside together 

on the weekends. When efforts to save the marriage failed, Mother filed for divorce 

in March 2010. 

[¶5.] In September 2010, however, the couple again reconciled and resided 

together with their children. This reconciliation period did not last long. The 

couple eventually divorced by stipulation and the judgment and decree of divorce 

was filed on December 9, 2010. The parties stipulated to joint legal custody with 

Mother having primary physical custody of the five children. 

[¶6.] Also during that time, Mother was having a relationship with another 

man (new husband), whom she eventually married in 2011. Mother’s relationship 

with her new husband was often violent. At one point during Mother’s marriage to 

her new husband, Mother requested a domestic violence protection order against 

her new husband and a temporary protection order was granted. After Mother filed 

a motion to dismiss the protection order, the protection order was dismissed. 

[¶7.] Several of the children have mental and emotional issues. M.L.H., the 

eldest daughter and child, and J.R.H., the eldest son, would often get into verbal 

and physical arguments with one another.

[¶8.] Following the domestic violence incident between Mother and Mother’s 

new husband, Father sought both emergency and permanent change of custody for 

the five children on June 2, 2011. In support of these motions, Father contended 
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that Mother was not parenting the children and not protecting them from Mother’s 

new husband’s violent behavior. 

[¶9.] At the emergency custody hearing on June 15, 2011, the trial court 

heard testimony from Mother and Father and Mother’s friend, Mae Davis. Davis 

testified that she had concerns about Mother leaving the children alone during the 

day for several hours at a time and overnight so that Mother could travel out of 

town to see Mother’s new husband. Davis also stated that Mother would speak 

negatively about Father in front of the children. Davis further testified that Mother 

knew that her new husband had a criminal record of domestic abuse and terroristic 

threats. Davis described the lack of stability and unkempt condition of Mother’s 

home. By contrast, Davis testified that Father had a stable, structured, and clean 

home environment for the children. Additionally, Davis told the trial court that 

Father did not speak negatively about Mother to the children. 

[¶10.] At the conclusion of the emergency custody hearing, the trial court 

granted temporary custody of the five children to Father. In doing so, the trial court 

noted its concerns about Mother’s ability to protect the children from her new 

husband and Mother’s choice to leave the minor children alone for several hours at 

a time and overnight so that Mother could visit her new husband. The trial court 

ordered that Mother have visitation with the children and that a home study be 

conducted.

[¶11.] During the time period between the temporary custody trial and the 

permanent custody trial, Mother divorced her new husband. Additionally, a few 
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months after Father was awarded temporary custody of the five children, M.L.H.

returned to Mother’s home to reside. 

[¶12.] A three-day custody trial was held in August 2012. The parties, 

several lay witnesses, a home study evaluator, a psychologist, and a nurse 

practitioner testified. The trial court concluded that the testimony of Dr. Andre 

Clayborne, the home study evaluator; Dr. Stephan Langenfeld, the psychologist who 

conducted psychological evaluations on Mother and Father; and John Erpenbach, 

the nurse practitioner who performed a psychological evaluation on Mother, was 

“consistent in what they observed and what they recommended.” Dr. Clayborne 

conducted a home study evaluation, which thoroughly analyzed the applicable 

Fuerstenberg factors, and recommended that Father retain primary physical care of 

the five children with Mother having visitation. Dr. Langenfeld testified that 

Mother has “generalized anxiety disorder” with “avoidant, dependent and selfdefeating personality characteristics.” He further stated that his “general 

impression is . . . she’s got some stuff that’s going to make it more difficult for her to 

effectively parent.” Dr. Langenfeld further testified that Father has “obsessivecompulsive and dependent personality characteristics[,]” but “that [Father] does not 

appear to be presenting significant emotional or psychological issues that would 

prevent [Father] from parenting.” He also told the trial court that Father presented 

an overly positive picture of Father’s current situation, but Father’s response did 

not invalidate the test. Finally, Erpenbach testified that Mother’s symptoms were 

consistent with a generalized anxiety disorder. Mother had been prescribed 

medication for her medical symptoms. 
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[¶13.] Additionally, Carrie Frahm, a friend of the couple, testified that Father 

“has some of the most exceptional parenting skills that [she had] ever witnessed” 

and that Father was even-tempered and that Father was able to successfully parent 

five children by himself. She also testified that she helped clean Mother’s house 

and that she and Mother were no longer friends because of Mother’s dishonesty as it 

relates to Father and the children. The trial court found Frahm’s testimony to be 

the most credible and “her testimony indicate[d] [Father] [was] the more stable and 

consistent parent.” And during the custody hearing, the trial court remarked that 

Frahm’s testimony was the most credible because “she had the best opportunity to 

observe the parties and their interactions with the children[.]” 

[¶14.] The trial court ultimately awarded joint legal custody and primary 

physical custody to Father. In doing so, the trial court noted that both parents are 

fit parents, though neither parent is perfect. The trial court found that while 

Father “present[ed] a more calm, stable and consistent demeanor, at least as . . . to 

the . . . [c]hildren[,]” “[Father] need[ed] to work on his communication skills[.]” In 

discussing Mother’s demeanor, the trial court noted that Mother was “volatile and 

emotional in her dealing with issues and that contribute[d] to conflict.” The trial 

court also acknowledged its concerns regarding Mother’s prescribed medication and 

her consistency in taking her prescribed medication and in attending counseling. 

Additionally, the trial court determined that there were no compelling reasons to 

separate the siblings. 
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[¶15.] Mother appeals from the trial court’s order granting primary physical 

custody of the five children to Father. Mother and Father filed motions with this 

Court each requesting appellate attorney fees pursuant to SDCL 15-26A-87.3. 

STANDARD OF REVIEW

[¶16.] “We review ‘child custody decisions under the abuse of discretion 

standard of review.’” Roth v. Haag, 2013 S.D. 48, ¶ 11, 834 N.W.2d 337, 339-40 

(quoting Schieffer v. Schieffer, 2013 S.D. 11, ¶ 13, 826 N.W.2d 627, 633). “An abuse 

of discretion is a discretion exercised to an end or purpose not justified by, and 

clearly against, reason and evidence.” Id. (quoting Schieffer, 2013 S.D. 11, ¶ 14, 826 

N.W.2d at 633). “In the context of reviewing custody decisions, an abuse of 

discretion occurs . . . when the trial court’s review of the traditional factors bearing 

on the best interests of the child is scant or incomplete.” Id. 

[¶17.] Additionally, findings of fact are reviewed for clear error. Schieffer, 

2013 S.D. 11, ¶ 15, 826 N.W.2d at 633. We “will overturn the trial court’s findings 

of fact on appeal only when a complete review of the evidence leaves this Court with 

a definite and firm conviction that a mistake has been made.” Id. (quoting Kreps v. 

Kreps, 2010 S.D. 12, ¶ 25, 778 N.W.2d 835, 843). We “give[ ] due regard to the trial 

court’s opportunity ‘to judge the credibility of witnesses and to weigh their 

testimony.’” Id. (quoting Walker v. Walker, 2006 S.D. 68, ¶ 11, 720 N.W.2d 67, 70-

71). 

DECISION

[¶18.] Mother argues that based on the Fuerstenberg factors, the trial court 

erred in determining that it was in the best interests of the children that Father be 
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awarded primary physical custody. See generally Fuerstenberg v. Fuerstenberg, 

1999 S.D. 35, 591 N.W.2d 798. Specifically, she asserts that until the trial court 

awarded Father temporary custody in 2011, the children had always been in 

Mother’s primary care and that she had provided for the children’s emotional 

issues. She contends that while in Father’s care, the children’s aggression towards 

each other had increased and that Father refused to acknowledge that this 

aggression was occurring. Mother further argues that Father did not acknowledge 

his own violent past; lacked insight into his own personal issues; had not sought 

counseling to address his own personal issues; and lacked insight into the children’s 

behaviors and needs. Mother asserts that the couple divorced because of the

domestic violence that had occurred in the marital home. Lastly, Mother contends 

that “due to the considerable amount of individual issues many of the children 

[were] experiencing, especially the ongoing violence between J.R.H. and M.L.H., the 

children need to be separated.”

[¶19.] “When determining custody, the court shall be guided by consideration 

of what appears to be for the best interests of the child in respect to the child’s 

temporal and mental and moral welfare.” Roth, 2013 S.D. 48, ¶ 13, 834 N.W.2d at 

340 (quoting Schieffer, 2013 S.D. 11, ¶ 17, 826 N.W.2d at 634). “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.” Id. “We encourage trial courts 

to take a balanced and systematic approach when applying the factors relevant to a 
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child custody proceeding.” Id. (quoting Schieffer, 2013 S.D. 11, ¶ 18, 826 N.W.2d at 

634). “However, ‘a court is not bound to make a specific finding in each category; 

indeed, certain elements may have no application in some cases, and for other cases 

there may be additional relevant considerations. In the end, our brightest beacon 

remains the best interests of the child.’” Id. (quoting Beaulieu v. Birdsbill, 2012 

S.D. 45, ¶ 10, 815 N.W.2d 569, 572).

[¶20.] “[S]iblings and half-siblings should not be separated absent compelling 

circumstances.” Id. ¶ 15, 834 N.W.2d at 341 (quoting Simunek v. Auwerter, 2011 

S.D. 56, ¶ 10, 803 N.W.2d 835, 837). “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.

[¶21.] Here, the trial court determined both parents to be fit parents, but 

noted that neither is a perfect parent. The trial court also found that until the trial 

court awarded Father temporary custody in 2011, Mother had been the primary 

caretaker of the children and then Father “step[ped] up to the plate” and 

“demonstrated his concern and care for the . . . [c]hildren.” These findings were 

supported by the testimony of multiple witnesses at the permanent custody hearing. 

Frahm, who the trial court found to be the most credible, described Father’s 

“exceptional parenting skills” and his even temperament with the children. She 

testified that she “admired [Father’s] ability to stay calm and manage that number 

of kids[.]” We defer to the trial court’s opportunity to judge Frahm’s credibility and 

the weight the trial court afforded to her testimony. 
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[¶22.] Additionally, the trial court found the testimony of the experts to be 

“consistent in what they observed and what they recommended.” Indeed, Dr. 

Clayborne recommended that Father be granted primary physical care of the five 

children. In so concluding, Dr. Clayborne’s home study report analyzed the 

applicable Fuerstenberg factors and noted that “the parent who [was] currently 

equipped to provide the children with the necessary structure [was Father].” Dr. 

Langenfeld also supported this conclusion in stating that his “general impression [of 

Mother] is . . . she’s got some stuff that’s going to make it more difficult for her to 

effectively parent.” The trial court also acknowledged each party’s faults and 

discussed ways to address these faults with each party. 

[¶23.] Further, the trial court found no compelling circumstances that would 

justify the separation of the siblings. The witnesses’ testimony and exhibits support 

this finding. Dr. Clayborne testified that he observed a bond between the siblings 

and that he did not recommend the separation of siblings. Additionally, Frahm 

testified that upon J.R.H.’s return home from in-patient therapy, J.R.H. was 

“[c]ompletely different” and he “was just happy” and “looked fantastic.” Because she 

requested the separation of the children, it was Mother’s burden to show compelling 

circumstances. Mother has not met her burden. Here, the record does not support 

the separation of siblings and, again, we give due regard to the trial court’s 

opportunity to judge credibility of the witnesses and the weight afforded to their 

testimony.

[¶24.] As noted above, “[w]e encourage trial courts to take a balanced and 

systematic approach when applying the factors relevant to a child custody 
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proceeding.” Id. ¶ 13, 834 N.W.2d at 340 (quoting Schieffer, 2013 S.D. 11, ¶ 18, 826 

N.W.2d at 634). And, while we do not require that there be a specific finding in 

every category, because, “indeed, certain elements may have no application in some 

cases, and for other cases there may be additional relevant considerations[,]” we do 

remind trial courts of their duty to thoroughly examine the applicable Fuerstenberg 

factors. See id. (quoting Beaulieu, 2012 S.D. 45, ¶ 10, 815 N.W.2d at 572). Here, 

the extent of the findings from the trial court concerning the applicable factors was 

fairly meager. However, the trial court relied upon Dr. Clayborne’s 

recommendation and home study report, which did thoroughly examine the 

applicable Fuerstenberg factors. Accordingly, the trial court did not abuse its 

discretion in determining that it was in the best interests of the children that 

Father be awarded primary physical custody. 

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

CONCLUSION

[¶26.] The trial court did not abuse its discretion in determining that it was 

in the best interests of the children that Father be awarded primary physical 

custody. We affirm.

[¶27.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and 

SEVERSON, Justices, concur.