Howlett v. Stellingwerf, 2018 SD 19.  Biological Father appealed from an order granting primary physical custody of his minor child to minor child’s maternal Grandmother.  At the initial custody trial, the trial court found that minor child’s mother had turned over her authority to Grandmother and that the case was really “between Father and Grandmother.”  Analyzing the Fuerstenberg factors, which includes parental fitness, stability, child preference, etc., the court awarded Grandmother full physical custody of the minor child while granting Father liberal visitation rights. Father filed a motion to reconsider, which was denied, arguing that the circuit court should have evaluated the case as a guardianship proceeding, or at the very least, as a custody proceeding between a nonparent and parent pursuant to SDCL 25-5-9 and 25-5-30.

On appeal, the Supreme Court of South Dakota found that the Fuerstenberg factors only applied to disputes between parents and that disputes between “parents and grandparents…are not contests between equals.”  The trial court failed to examine whether Father’s presumptive right to custody of the minor child was rebutted under SDCL 25-5-29 and 25-5-30.  Thus, because the trial court analyzed the dispute using the Fuerstenberg factors, which do not apply in a dispute between a parent and a non-parent, the trial’s court’s order granting Grandmother full physical custody was reversed and remanded.

Hedlund v. River Bluff Estates, 2018 SD 20. This case is a water drainage dispute between neighboring landowners in Fort Pierre.  Defendant had made certain physical alterations to its property such that Plaintiffs’ properties started to experience an increase in drainage.  As such, Plaintiffs sought a preliminary injunction and a permanent injunction, as well as money damages, alleging nuisance and trespass. The trial court held an evidentiary hearing and denied Plaintiffs’ request for a preliminary injunction, concluding that monetary compensation would afford adequate relief such that Plaintiffs had an adequate remedy at law.

On appeal, the Supreme Court of South Dakota held that the trial court’s conclusion that monetary compensation could afford adequate relief for the drainage at-issue was incorrect.  Essentially, the court found that only modifying Defendant’s property would abate the alleged nuisance by preventing the drainage.  However, the court found that Plaintiffs failed to demonstrate a need for their requested preliminary injunctive relief.  Defendant’s modifications to its property occurred in 2005 and it was not until 2011 that Plaintiffs notified Defendant of their concerns.  Given that the drainage at-issue had been ongoing for years, the Plaintiffs failed to assert they would suffer irreparable harm prior to the disposition of the case on the merits.  The trial court’s denial of the Plaintiff’s request for preliminary injunctive relief was affirmed.

State v. Wills, 2018 SD 21. Defendant was convicted of first-degree rape and sexual contact with a child under age 16.  At trial, the State called an expert witness on forensic interviews that testified that she saw no “red flags” in the child’s description of the abuse.  Defendant called his own expert to point out alleged weaknesses in the State’s expert witness, however, the trial court held that Defendant’s expert witness was not qualified to give an expert opinion.  Defendant also testified and denied having an attraction to younger girls.  The State attempted to impeach Defendant with inconsistent statements Defendant had made to a law enforcement in a prior and unrelated child pornography investigation.  Defendant objected, arguing that the impeachment evidence was unduly prejudicial and would suggest that Defendant has possessed child pornography, although those charges had been dismissed.  The trial court held that the prior statements could come in given that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice.  Defendant appealed, challenging (1) the trial court’s decision to permit impeachment of Defendant with inconsistent statements; and (2) the trial court’s decision to preclude his expert witness from testifying about the methods used by the forensic interviewer who interviewed the child.

The Supreme Court of South Dakota first held that Defendant failed to demonstrate any error when the trial court allowed Defendant’s inconsistent statements to come in.  Defendant was not deprived of his confrontation rights; the impeachment questions were based on actual statements; no further foundational evidence was necessary; and the trial court’s determination that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice was not a “fundamental error of law.”  As to the issue relating to Defendant’s expert witness, the Supreme Court of South Dakota held that the trial court misapplied Daubert and that Defendant’s expert witness was clearly qualified as an expert and that her proposed testimony was sufficiently reliable.  Defendant’s expert witness had extensive education, training, knowledge, and experience in child psychiatry and forensic interviewing and, as such, she was qualified as an expert in child forensic interviews. Ultimately, the South Dakota Supreme Court held that the trial court did not err in permitting the State to impeach Defendant with inconsistent statements, however, the trial court did err in excluding Defendant’s expert witness’s testimony.