Hess v. Hess ( 2024 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 50719-2023
ISAAC WILLIAM HESS, )
)
Petitioner-Appellant, ) Pocatello, June 2024 Term
)
v. ) Opinion filed: October 28, 2024
)
LISA ANN HESS, ) Melanie Gagnepain, Clerk
)
Respondent. )
)
Appeal from the District Court of the Seventh Judicial District of the State of Idaho,
Bonneville County. Michael J. Whyte, District Judge. Steven A. Gardner,
Magistrate Judge.
The decision of the district court is affirmed in part, reversed in part, and remanded.
Murray, Ziel & Johnston, PLLC, Meridian, for Appellant. Kevin Shupperd argued.
Hopkins Roden Crockett Hansen & Hoopes, PLLC, Idaho Falls, for Respondent.
Tracy W. Gorman argued.
ZAHN, Justice.
This case concerns child custody proceedings between Isaac William Hess and Lisa Ann
Hess. Isaac and Lisa have two minor children, who are registered members of the Cherokee Nation.
During the proceedings, Isaac alleged that Lisa had abused the children by spanking them with a
PVC pipe and that she was a negligent mother. Isaac’s father was briefly granted emergency
guardianship of the children in the District Court of the Cherokee Nation during the proceedings.
The Idaho court stayed its proceedings pending the resolution of the guardianship action in the
Cherokee Nation court. Shortly thereafter, the District Court of the Cherokee Nation dismissed the
guardianship action because the children lived outside the jurisdictional borders of the Cherokee
Nation. The Idaho court then held a trial on the custody issues, after which the magistrate court
awarded Lisa sole physical custody of the children and awarded Isaac and Lisa joint legal custody
but granted Lisa “the final say and determination as to how to proceed, at all times, on all such
issues, at her sole discretion, even over Isaac’s objection.” Finally, the magistrate court ordered
Isaac to pay child support, which was calculated based on Lisa having sole physical custody. The
court backdated the child support award to January 1, 2021. Isaac appealed the decision to the
district court, which affirmed the magistrate court.
Isaac appeals from the district court’s decision and argues that the district court erred in
affirming the magistrate court because: (1) the magistrate court should have conferred with the
courts of the Cherokee Nation regarding jurisdiction over custody and support of the minor
children; (2) the magistrate court was required by Idaho Code section 32-717C to refer Isaac’s
child abuse allegations to the Idaho Department of Health and Welfare (“DHW”) for an
investigation; (3) the magistrate court impermissibly focused on only one of the Idaho Code
section 32-717 factors in awarding Lisa sole physical custody; (4) the magistrate court effectively
awarded Lisa sole legal custody without making the necessary prerequisite findings; and (5) the
magistrate court should not have backdated the child support award to January 2021 because the
children primarily resided with Isaac at the time the divorce petition was filed and for several
months thereafter.
We affirm the district court’s decision affirming the magistrate court’s decisions on the
jurisdictional issue, declining to refer Isaac’s allegations of child abuse to DHW for investigation,
and awarding Lisa sole physical custody. Isaac failed to establish that the Cherokee Nation was a
“home state” of the children for purposes of the Uniform Child Custody Jurisdiction and
Enforcement Act (“UCCJEA”), his allegations did not rise to the level of child abuse as defined in
Idaho law, and the magistrate court considered all relevant statutory factors prior to awarding Lisa
sole physical custody.
However, we hold that the district court erred in affirming the magistrate court’s decisions
concerning legal custody and backdating its child support award to January 1, 2021. The magistrate
court’s legal custody decision is internally contradictory and requires clarification. Further, its
decision to backdate the child support award to January 1, 2021, deviated from the Idaho Child
Support Guidelines without explanation. We reverse the district court’s decision on those two
points and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
Isaac and Lisa were married in 2011. They have two minor children, one born in 2013 and
the other in 2016. Isaac and the two children are registered members of the Cherokee Nation. In
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2015, Isaac and Lisa moved to Idaho Falls, Idaho. From 2015 until December 2020, Isaac, Lisa,
and the children lived with Isaac’s father. From December 2020 through July 2021, Lisa lived with
her sister in Rexburg, Idaho.
Isaac filed a pro se petition for divorce on December 24, 2020. In his petition, Isaac averred
that he, Lisa, and the children had lived in Idaho for the previous five years. Isaac also asserted
that the Idaho magistrate court had jurisdiction to determine the custody of the children under the
UCCJEA because each child had resided in Idaho for at least six consecutive months prior to filing
the petition. Isaac checked the box on his petition stating that there were no other cases impacting
the children. Isaac requested joint legal and joint physical custody of the children, and that Lisa
pay him $733 a month in child support beginning the month after the petition was filed.
After Isaac filed the petition, Isaac and Lisa agreed that the children would stay with Isaac
during the school week and with Lisa on the weekends and most holidays. Lisa was also able to
visit the children after school. Given this informal agreement, there initially was no court order
concerning child visitation.
Lisa subsequently petitioned the magistrate court for entry of a temporary custody order
for joint physical and legal custody and alleged that she was no longer welcome in Isaac’s father’s
house, which impeded her visitation with the children. Isaac opposed Lisa’s request and denied
her allegations. Isaac also filed a declaration alleging that Lisa was a negligent mother and had
abused the children by spanking them with a PVC pipe. Lisa filed a declaration in response,
admitting that she had spanked her children with a PVC pipe, but only because it was a form of
discipline used in Isaac’s family. Lisa declared that the practice made her uncomfortable and that
she once or twice left a small bruise on her children as a result of the practice. Lisa stated that she
felt awful about causing the bruises and that she stopped using the PVC pipe in October 2020 and
had never used it again.
On June 16, 2021, the magistrate court granted Lisa’s motion and orally issued temporary
orders awarding Isaac and Lisa joint legal and physical custody of the children. The magistrate
court did not address Isaac’s allegations of child abuse. The magistrate court ordered the parties to
share custody of the children over the summer using a “week on, week off” visitation schedule.
From June 16, 2021, until sometime in late August 2021, the record indicates that the parties
alternated every one or two weeks with the children. In June 2021, Isaac moved to an apartment
in Oklahoma and planned to move into the new household of his father, which was also located in
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Oklahoma, if he had custody of the children. Isaac testified at trial that he did not tell Lisa that he
had moved to Oklahoma but would pick the children up in Idaho and take them to Oklahoma
during his custody periods.
On August 23, 2021, Lisa filed an emergency ex parte motion for an order directing Isaac
to return the children to Lisa. Lisa filed a declaration in support of the motion, alleging that Isaac
had not returned the children to her following his custody period. Lisa alleged that Isaac’s father,
James Hess, had taken the children to Oklahoma with Isaac’s consent; that James had filed an
emergency guardianship petition in the District Court of the Cherokee Nation alleging Lisa was
unfit to be a mother and was physically abusing the children; and that Isaac refused to return the
children to Lisa. Lisa’s declaration included a “Letter of Emergency Guardianship” from the
Cherokee Nation courts that appointed James Hess emergency guardian of the children.
The magistrate court denied Lisa’s motion and postponed the custody trial. In its order
postponing the trial, the magistrate court found that “it appear[ed] to the court that Isaac has
participated in and consented to a deliberate ploy to try to circumvent the actions of this court in
determining custody and visitation of the minor children as between him and Lisa, over which this
court retains jurisdiction.” Nonetheless, the magistrate court found that it would be inappropriate
for it to move forward on the issue of custody while another jurisdiction was considering
guardianship.
Lisa retained Oklahoma counsel to oppose the guardianship petition pending before the
Cherokee Nation court. On September 3, 2021, the Cherokee Nation court dismissed James Hess’s
case, stating: “Case dismissed. Children live outside the jurisdictional borders of the Cherokee
Nation.” On September 9, 2021, Lisa filed another emergency ex parte motion with the Idaho
magistrate court seeking an order for the return of the children and requesting sole legal and
physical custody until trial. On September 13, 2021, the magistrate court granted Lisa’s motion
and issued an emergency order requiring the children to be returned to Idaho. The court
additionally granted Lisa sole legal and physical custody of the children. Lisa brought the children
back to Idaho and Isaac continued to reside in Oklahoma. Isaac thereafter dismissed his Idaho legal
counsel and opted to represent himself in the Idaho proceedings.
The magistrate court held a court trial on the custody issues on February 25, 2022. Isaac
testified that because he and the children were registered members of the Cherokee Nation, the
Cherokee Nation had jurisdiction over the custody case, the Idaho magistrate court had no
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jurisdiction, and Isaac would not be bound by orders of the Idaho magistrate court. Isaac also
accused the Idaho magistrate judge of committing treason. Isaac testified that he had filed two
petitions in the Cherokee Nation court to resolve the child custody issues. Isaac entered two
petitions into evidence: a “Petition for Child Custody Determination, Visitation, Award of Child
Support and Other Child Expenses, Award of Attorney’s Fees and Temporary Custody,” filed in
the District Court of the Cherokee Nation, and a “Petition For Divorce,” filed in the District Court
of Cherokee County, State of Oklahoma. This was the first time the magistrate court was made
aware of these filings.
Isaac also testified that Lisa’s disciplinary actions amounted to child abuse and that Lisa
was a negligent mother. Isaac argued that his allegations of child abuse required an investigation
by the Idaho Department of Health and Welfare (“DHW”). Lisa testified that keeping the children
with her would be in the best interests of the children, that she no longer used the PVC pipe to
spank her children, and that she wanted Isaac’s input on parenting decisions but wanted sole legal
and sole physical custody because she was afraid that Isaac would take the children to Oklahoma
again and refuse to return them.
After the trial concluded, the magistrate court issued its findings of fact, conclusions of
law, and order. The order awarded Lisa sole physical custody but awarded the parties joint legal
custody and stated that the parties should share the decision-making rights, responsibilities, and
authority relating to the health, education, and general welfare of the minor children. However, the
order also stated that, if the parties disagreed on an issue relating to the children, Lisa had the final
say as to how to proceed. The order allowed Isaac visitation rights at Lisa’s discretion. Finally, the
magistrate court calculated child support based on Lisa’s having sole physical custody and ordered
Isaac to pay child support payments backdated to January 1, 2021.
Isaac then filed a motion to disqualify, alleging bias and misconduct by the magistrate
judge and continuing to assert that only the Cherokee Nation had jurisdiction to determine custody
issues. The magistrate court issued a written order withdrawing its written decision and order,
denying the motion, and then reissuing its written decision and order.
Isaac appealed pro se to the district court, arguing that there were ambiguities in the
magistrate court’s order, that a DHW investigation of Lisa should have been ordered, and that the
magistrate court lacked jurisdiction to make any decisions concerning child custody. Isaac also
accused the magistrate court of bias and mental impairment. The district court held oral argument
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on Isaac’s appeal, after which it issued a written decision that found no error or bias by the
magistrate court, affirmed the magistrate court in all respects, and awarded attorney fees against
Isaac for his personal allegations against the magistrate judge. Isaac appealed to this Court and is
once again represented by legal counsel.
Prior to oral argument before this Court, Lisa filed a motion asking us to take judicial notice
of certain filings from a lawsuit that Isaac initiated in the U.S. District Court for the District of
Columbia. We granted Lisa’s motion to take judicial notice of the documents. The filings indicate
that Isaac sued several parties, including the U.S. Department of the Interior and the Cherokee
Nation, seeking a declaratory judgment that the District Court of the Cherokee Nation has
exclusive jurisdiction over child custody disputes when the children are registered members of the
Cherokee Nation. Both the U.S. Department of the Interior and the Cherokee Nation filed motions
to dismiss. The U.S. District Court for the District of Columbia granted the motion to dismiss,
concluding it lacked subject matter jurisdiction because declaratory relief would not have
redressed Isaac’s alleged harm.
After we granted Lisa’s motion to take judicial notice, and prior to oral argument, Isaac
filed a motion with this Court, asking us to take judicial notice of additional pleadings from Isaac’s
case in the U.S. District Court for the District of Columbia, and to also take judicial notice of
filings in the custody case that Isaac initiated in the District Court of the Cherokee Nation. Isaac
also asked that we take judicial notice of a decision by the U.S. District Court of South Dakota in
an unrelated case involving unrelated parties. We granted Isaac’s motion.
The filings indicate that on February 15, 2022, Isaac filed a “Petition for Child Custody
Determination, Visitation, Award of Child Support and Other Child Expenses, Award of
Attorney’s Fees, and Temporary Custody” in the District Court of the Cherokee Nation. On June
2, 2022, the District Court of the Cherokee Nation entered an order dismissing the case for lack of
jurisdiction because the children lived in Idaho and an Idaho court had already issued a decision
in the case:
1. The permanent residence of the minor children at issue in this case was the State
of Idaho at the time the Petition was filed herein and at the time this Order is
being entered.
2. There is a lawful custody determination for the minor children in the District
Court of Bonneville County, State of Idaho, in case no.: CV10-20-7925.
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3. This [c]ourt lacks jurisdiction over this case because there is a child custody
determination by a court of competent jurisdiction involving the same parties
and subject matter.
4. The Respondent’s Motion to Dismiss filed herein is GRANTED.
(Bold language in the original.) On May 5, 2023, Isaac filed a motion for reconsideration, alleging
that the children legally resided within the Cherokee Nation fifty percent of the time for more than
six months preceding his filing of the case. Lisa, who had again retained Oklahoma counsel to
represent her interests in the Cherokee Nation court, opposed the motion for reconsideration, and
argued that Isaac’s contention that the children lived in Oklahoma fifty percent of the time for six
months before the filing of the case was “blatantly false and can only be viewed as an intentional
misrepresentation to [the court].” Lisa asserted that, during the timeframe in question, she had sole
physical custody of the children in Idaho, that the children had never permanently resided within
the boundaries of the Cherokee Nation, and that the last time the children had been within the
borders of the Cherokee Nation was when Isaac took the children there in August 2021 in an
attempt to bypass the jurisdiction of the Idaho magistrate court.
The filings indicate that a hearing on the motion for reconsideration was set for September
28, 2023. None of the filings address the outcome of that hearing. Isaac’s memorandum in support
of his motion for judicial notice suggests that the Cherokee Nation court took the motion for
reconsideration under advisement and is awaiting a decision by this Court before ruling on the
motion. However, there is nothing in the record to substantiate his assertion. At oral argument,
Isaac’s attorney asserted that the Cherokee Nation court held a “trial” on Isaac’s child custody
petition, which would seemingly contradict his assertion in his memorandum that the Cherokee
Nation court had not yet issued a decision on his motion to reconsider its dismissal of his petition.
But again, there is no evidence in the record indicating that a trial occurred or how the Cherokee
Nation court resolved the motion for reconsideration.
II. ISSUES ON APPEAL
1. Whether the district court erred when it affirmed the magistrate court’s decision that it was
not required to confer with the courts of the Cherokee Nation concerning child custody.
2. Whether the district court erred when it affirmed the magistrate court’s decision to not refer
Isaac’s allegations of child abuse to DHW for investigation.
3. Whether the district court erred in affirming the magistrate court’s decision awarding Lisa
sole physical custody of the children.
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4. Whether the district court erred in affirming the magistrate court’s decision to award joint
legal custody to Isaac and Lisa while also ordering that Lisa had final decision-making
authority.
5. Whether the district court erred in affirming the magistrate court’s decision to backdate its
child support award to January 1, 2021.
6. Whether either party is entitled to an award of attorney fees on appeal.
III. STANDARD OF REVIEW
“When an appeal is initially taken to the district court from a decision by a magistrate, any
subsequent review will be conducted independent of, but with due regard for, the decision of the
district court.” O’Holleran v. O’Holleran, 171 Idaho 671, 673, 525 P.3d 709, 711 (2023) (quoting
Kelly v. Kelly, 171 Idaho 27, 34, 518 P.3d 326, 333 (2022)). “This Court is procedurally bound to
affirm or reverse the decisions of the district court.” Id. (internal quotation marks and citation
omitted). “When a district court decides an issue in its appellate capacity, this Court reviews the
magistrate court’s record ‘to determine whether there is substantial and competent evidence to
support the magistrate’s findings of fact and whether the magistrate’s conclusions of law follow
from those findings.’” Id. (quoting Pelayo v. Pelayo, 154 Idaho 855, 858, 303 P.3d 214, 217
(2013)). “This Court affirms the district court’s decision as a matter of procedure if ‘those findings
are so supported and the conclusions follow therefrom and if the district court affirmed the
magistrate’s decision.’” Id. (alteration omitted) (quoting Pelayo, 154 Idaho at 858, 303 P.3d at
217).
IV. ANALYSIS
A. The district court did not err in affirming the magistrate court’s determination that it
was not required to confer with the Cherokee Nation court because no conference was
required under the UCCJEA.
The magistrate court concluded that it had jurisdiction to determine the custody of the
children because Isaac alleged in his divorce petition that Idaho had jurisdiction of child custody
matters and that the children resided in Idaho for at least six consecutive months before the petition
was filed. The magistrate court acknowledged Isaac’s custody petition filed in the District Court
of the Cherokee Nation but concluded that there was no evidence that the Cherokee Nation court
would accept jurisdiction and the magistrate court had not received any communication from the
Cherokee Nation court that it intended to assert jurisdiction over the custody determination.
On intermediate appeal, Isaac argued that because the children are registered members of
the Cherokee Nation, jurisdiction to determine the custody of the children only resides with the
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tribal courts of the Cherokee Nation. The district court concluded that the magistrate court
correctly determined that Idaho was the children’s home state because Isaac alleged they resided
in Idaho for at least six months prior to the filing of his petition. The district court also noted that
the Cherokee Nation court had dismissed Isaac’s father’s guardianship petition and that it had
taken no action on Isaac’s custody petition for over a year, thus indicating that it had no interest in
asserting jurisdiction over the child custody determination.
Preliminarily, Lisa contends that we should not consider Isaac’s appeal on this issue
because “subject matter jurisdiction was not properly challenged before the magistrate court.” We
reject this argument and conclude that Isaac’s subject matter jurisdiction argument can be
addressed on appeal. “This Court must address jurisdictional issues, even if they were neither
raised before, nor addressed by, the trial court.” Blankenship v. Wash. Tr. Bank, 153 Idaho 292,
295, 281 P.3d 1070, 1073 (2012). Isaac’s argument implicates questions of concurrent jurisdiction.
Jurisdictional arguments can be raised at any time, including on appeal, and therefore we will
consider the argument. See id.Turning to the merits of Isaac’s argument, he contends that the magistrate court erred by
failing to consult with the Cherokee Nation court concerning which court should exercise
jurisdiction over the child custody issues. According to Isaac, there are two competing jurisdictions
for purposes of child custody. He concedes that Idaho has jurisdiction because the children resided
there for more than six months prior to Isaac’s filing of the divorce petition. However, he argues
that the Cherokee Nation court also has jurisdiction over child custody matters concerning tribal
members under treaties with the United States, federal law, and title 20, chapter 2, section 24(3)
of the Cherokee Code. Isaac contends that the UCCJEA, as adopted by Idaho, does not prohibit
the courts of the Cherokee Nation from claiming and exercising jurisdiction over its members in
child custody disputes and that the jurisdictional issue turns on whether Idaho or the Cherokee
Nation have priority in jurisdiction.
Lisa responds that the magistrate court had subject matter jurisdiction pursuant to Idaho
Code section 32-717, there is no federal law removing Idaho’s jurisdiction, and the Cherokee
Nation courts have repeatedly declined to exercise jurisdiction over the children’s custody. Lisa
contends that divorce proceedings involving child custody and tribal-state jurisdictional disputes
are subject to the UCCJEA only if the state has enacted optional section 104(b) and (c) of the
uniform act, which would require state courts to treat tribes as if they were states. Because Idaho
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has not adopted section 104(b) and (c) of the uniform act, Lisa argues that Idaho is not required to
treat the Cherokee Nation as a competing jurisdiction.
“Questions of subject matter jurisdiction are questions of law over which this Court
exercises free review.” Swanson v. Swanson, 169 Idaho 766, 769, 503 P.3d 982, 985 (2022).
Subject matter jurisdiction over child custody disputes in Idaho is governed by Idaho’s UCCJEA.
I.C. §§ 32-11-101 to 32-11-405. Idaho Code section 32-11-201(a)(1) permits an Idaho court to
exercise jurisdiction to make an initial child custody determination if Idaho is the home state of
the children on the date the proceedings were commenced. “Home state” is defined as “the state
in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive
months immediately before the commencement of a child custody proceeding.” I.C. § 32-11-
102(g). “Courts of a child’s home state are given priority to make an initial child custody
determination.” Swanson, 169 Idaho at 771, 503 P.3d at 987 (first citing I.C. § 32-11-201(a)(1);
and then citing Model UCCJEA § 201 cmt. 1 (Nat’l Conference of Comm’rs on Uniform State
Laws 1997)).
Here, the Idaho magistrate court concluded that it had jurisdiction over the child custody
determination largely because Isaac alleged in his divorce petition that the magistrate court had
jurisdiction under the UCCJEA since the children had resided in Idaho for at least six consecutive
months before the petition was filed. See I.C. § 32-11-201(a)(1). The magistrate court noted that
it had not received any communication from the Cherokee Nation court indicating that it wished
to assert jurisdiction. Nor does the record give any indication that the Cherokee Nation was a
“home state” of the children for purposes of Idaho’s UCCJEA.
The district court did not err in affirming the magistrate court’s decision. The magistrate
court was entitled to rely on Isaac’s sworn statements in his divorce petition, which established
that Idaho was the “home state” of the children and that it had jurisdiction to make an initial child
custody determination. See I.C. §§ 32-11-102(g), 32-11-201(a)(1).
Isaac argues that the courts of the Cherokee Nation have jurisdiction over child custody
matters concerning tribal members under treaties with the United States, federal law, and
provisions of the Cherokee Code. Specifically, Isaac cites a section of the Cherokee Code
providing that the Cherokee Nation generally has jurisdiction over “[a]ll cases involving the
domestic relations of Indians including child custody and adoption matters.” 20 Cherokee Nation
Tribal Code § 24(3). Isaac argues that because the children are registered members of the Cherokee
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Nation, the Cherokee Nation courts also have jurisdiction over the children and that Idaho’s courts
should be required to confer with the Cherokee Nation courts to determine jurisdiction. Isaac
argues that the Cherokee Nation falls under the definition of “State” in the UCCJEA and that Idaho
courts should be required to conduct a conference with the applicable tribal court to determine
jurisdiction if there is dueling jurisdiction.
Assuming, as Isaac contends, that the Cherokee Nation is a state for purposes of the
UCCJEA, Isaac’s argument still fails because he has not established that there was a parallel
proceeding in the Cherokee Nation courts that predated the Idaho proceeding that Isaac
commenced. We recently addressed when an Idaho court is required to consult with a court of
another jurisdiction to determine which court will maintain jurisdiction over a child custody
matter:
Idaho Code section 32-11-206 sets out a three-step framework for determining
whether an Idaho court can exercise jurisdiction in a custody matter when there is
a parallel custody proceeding in another state regarding the same child. First, the
Idaho court must determine if the parallel proceeding predates the Idaho
proceeding. Second, the Idaho court must determine if the state court handling the
parallel proceeding has jurisdiction in substantial compliance with Idaho’s
enactment of the UCCJEA. Finally, if the parallel proceeding commenced first in
another state, and that state has jurisdiction in substantial conformity with the
UCCJEA, the Idaho court must initiate a communication with the other state court
to discuss which forum is more appropriate. If Idaho is not the more appropriate
forum, the Idaho court shall not exercise jurisdiction, even if Idaho would otherwise
have jurisdiction under the UCCJEA.
Swanson, 169 Idaho at 770–71, 503 P.3d at 986–87 (emphasis added).
Under Idaho Code section 32-11-206(a), the Idaho magistrate court was only required to
consult with the Cherokee Nation court if Isaac established that there was a parallel proceeding in
the Cherokee Nation court that predated the Idaho proceeding. Isaac has not established this. Nor
could he, because the record is clear that Isaac first filed a divorce and custody petition in Idaho
on December 24, 2020, and then over eighteen months later, on February 15, 2022, he filed a
custody petition in the District Court of the Cherokee Nation. Because there was no parallel
proceeding that predated the Idaho action, the magistrate court had no obligation to confer with
the Cherokee Nation courts under the UCCJEA.
Moreover, the record demonstrates that when the jurisdictional question has been put to
the Cherokee Nation courts, they have repeatedly declined to exercise jurisdiction. Isaac has not
submitted any evidence indicating that the Cherokee Nation was a home state of the children for
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purposes of the UCCJEA. While he cites to treaties and the Cherokee Code, the Cherokee Nation
court filings provided to this Court suggest that the Cherokee Nation courts dismissed the
guardianship and custody proceedings because they determined that they lack jurisdiction. While
Isaac has suggested that the Cherokee Nation court could later reconsider its decision and hold a
trial on his petition, he has not provided this Court with copies of the Cherokee Nation court’s
order granting reconsideration, evidence that it held a trial on his petition, or evidence that it issued
an order or judgment concerning his custody petition. In short, Isaac submitted no evidence
indicating that the Cherokee Nation was the children’s home state, that there was a parallel custody
proceeding in the Cherokee Nation courts that predated his Idaho petition, or that the Cherokee
Nation courts asserted jurisdiction over determinations concerning the children’s custody. As a
result, we affirm the district court’s decision affirming the magistrate court’s determination that it
had subject matter jurisdiction to decide the children’s custody.
B. The magistrate court did not err in declining to order an investigation by DHW.
In response to Lisa’s petition for a temporary order for joint legal and joint physical custody
of the children, Isaac filed a declaration alleging that Lisa was a negligent mother and had abused
the children by spanking them with a PVC pipe. Isaac also submitted affidavits of friends and
family members that he alleged corroborated his claims of abuse. Isaac repeated the accusations
while testifying at the court trial.
In response, Lisa filed a declaration in which she admitted that she had spanked her children
with a PVC pipe and explained that the PVC pipe was a form of discipline used by Isaac and his
extended family. Lisa testified that she was uncomfortable using the PCV pipe and that she no
longer used it. Lisa admitted to having once or twice left a small bruise on her children as a result
of using the PVC pipe, but that she felt horrible about it and in October 2020 stopped using
spanking as a form of punishment.
Isaac asserted before the magistrate court that his testimony constituted an allegation of
child abuse and that Idaho Code section 32-717C required the magistrate court to refer the
allegations to DHW for investigation. The magistrate court evaluated Isaac’s and Lisa’s testimony
and concluded that Isaac’s accusations did not amount to “abuse” as defined in Idaho Code section
16-1602. The magistrate court concluded that both Isaac and Lisa used similar disciplinary
methods on the minor children, which Lisa believed were harsh and that once or twice left a small
bruise on one of the children. The magistrate court found that the allegations did not rise to the
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level of abuse under Idaho law because Lisa had justifiably explained the cause of the bruise and
had not repeated the conduct.
On intermediate appeal, Isaac argued that his allegations were sufficient to trigger an
investigation by DHW and the magistrate court erred by failing to halt the custody proceedings
and order an investigation. The district court affirmed the magistrate court’s decision to not refer
the allegations to DHW. The district court concluded that the magistrate court properly considered
Isaac’s allegations and Lisa’s explanations for her actions before finding that the allegations did
not rise to the level of child abuse. The district court concluded that, sitting in its appellate capacity,
it could only overturn the magistrate court’s factual finding if there was clear error. The district
court concluded that Isaac failed to demonstrate a clear error by the magistrate court and affirmed
its decision.
Before this Court, Isaac argues that section 32-717C does not give the magistrate court
discretion to make findings concerning the allegation of abuse. Instead, he argues that the statute
requires that any allegation of abuse automatically triggers an investigation. Lisa responds that the
magistrate court correctly determined that the allegations did not meet the definition of child abuse
under Idaho law.
“The interpretation of a statute is a question of law this Court reviews de novo.” Nelson v.
Evans, 166 Idaho 815, 820, 464 P.3d 301, 306 (2020) (quoting State v. Smalley, 164 Idaho 780,
783, 435 P.3d 1100, 1103 (2019)). “The objective of statutory interpretation is to derive the intent
of the legislative body that adopted the act. Statutory interpretation begins with the literal language
of the statute.” Id. (quoting State v. Dunlap, 155 Idaho 345, 361, 313 P.3d 1, 17 (2013)). “When
the statutory language is unambiguous, the clearly expressed intent of the legislative body must be
given effect, and the Court need not consider rules of statutory construction.” Id. (quoting Dunlap,
155 Idaho at 361–62, 313 P.3d at 17–18).
Idaho Code section 32-717C provides that a magistrate court must order DHW to
investigate an allegation of child abuse made during a divorce proceeding:
When, in any divorce proceeding or upon request for modification of a divorce
decree, an allegation of child abuse or child sexual abuse is made, implicating either
party, the court shall order that an investigation be conducted by the department of
health and welfare.
I.C. § 32-717C (emphasis added). The use of the word “shall” in section 32-717C unambiguously
requires a court to order an investigation by DHW if there is an accusation of “child abuse.” The
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question becomes whether Isaac’s allegations constitute “child abuse.” Title 32 of the Idaho Code
does not define “child abuse.” In analyzing this issue, the magistrate court relied on the definition
of “abused” found in Idaho’s Child Protective Act to determine whether Isaac’s allegations
constituted child abuse for purposes of section 32-717C:
(1) “Abused” means any case in which a child has been the victim of:
(a) Conduct or omission resulting in skin bruising, bleeding, malnutrition, burns,
fracture of any bone, head injury, soft tissue swelling, failure to thrive or death, and
such condition or death is not justifiably explained, or where the history given
concerning such condition or death is at variance with the degree or type of such
condition or death, or the circumstances indicate that such condition or death may
not be the product of an accidental occurrence . . . .
I.C. § 16-1602(1)(a) (emphasis added).
“[S]tatutes relating to the same subject . . . must be construed together.” In re Adoption of
Doe (2013-25), 156 Idaho 345, 350, 326 P.3d 347, 352 (2014); see also Saint Alphonsus Reg’l
Med. Ctr. v. Elmore County, 158 Idaho 648, 653, 350 P.3d 1025, 1030 (2015) (citation omitted);
State v. Barnes, 133 Idaho 378, 380, 987 P.2d 290, 292 (1999). The definition of child abuse in
section 16-1602 was in effect when the legislature enacted section 32-717C. We “presume[] that
the [l]egislature in enactment of a statute consulted earlier statutes on the same subject matter” and
“that the [l]egislature knew of all legal precedent and other statutes in existence at the time the
statute was passed.” City of Idaho Falls v. H-K Contractors, Inc., 163 Idaho 579, 584, 416 P.3d
951, 956 (2018) (citations omitted). It was appropriate for the magistrate court to refer to the
definition of “abused” in section 16-1602(1)(a) when determining whether Isaac’s allegations
constituted allegations of “child abuse” for purposes of section 32-717C.
Applying this definition to Isaac’s allegations, we hold that the magistrate court did not err
when it found that Isaac’s allegations did not constitute “child abuse” and therefore did not
mandate a referral to DHW. “It is the province of the trier of fact to weigh conflicting evidence
and testimony and to judge the credibility of witnesses.” Hopper v. Hopper, 144 Idaho 624, 626,
167 P.3d 761, 763 (2007). “The trial court’s findings of fact in a court tried case will be upheld if
they are supported by substantial and competent evidence, even if the evidence is conflicting, and
will be liberally construed in favor of the judgment entered.” Id. The magistrate court’s findings
of fact will only be overturned if there is not substantial and competent evidence to support the
magistrate court’s findings of fact. King v. King, 137 Idaho 438, 442, 50 P.3d 453, 457 (2002).
14
Isaac does not attack the magistrate court’s finding that his allegations did not constitute
abuse under Idaho law. Instead, he argues that the statute did not permit the magistrate court to
make any factual finding whatsoever. Isaac’s argument, taken to its logical conclusion, is that the
mere use of the phrase “child abuse” by a party in a divorce action requires a referral to DHW and
a stay of the divorce action until DHW completes its investigation. We disagree.
Idaho Code section 32-717C only requires a referral to DHW if the allegations are
allegations of child abuse. Nothing in the statute suggests that the mere use of the phrase “child
abuse” is sufficient to mandate a referral to DHW. The magistrate court acted appropriately in
analyzing Isaac’s allegations to determine whether they constituted allegations of child abuse.
When analyzing what constituted “child abuse,” the magistrate court appropriately consulted the
definition of “abused” in Idaho’s Child Protective Act. The magistrate court then applied that
definition to the evidence concerning the allegations and determined that Isaac’s allegations did
not rise to the level of child abuse because Lisa credibly provided a justifiable explanation for her
use of the PVC pipe in spanking and credibly testified that she stopped using that method of
discipline.
We disagree with Isaac’s assertion that the mere use of the phrase “child abuse” by one
parent in a divorce proceeding mandates a referral to the DHW. Isaac has not challenged the
magistrate court’s conclusion that Lisa was credible or that she provided a justifiable explanation
for the events at issue. Substantial and competent evidence exists in the record to support those
findings and the magistrate court did not err in concluding that Isaac’s allegations did not constitute
child abuse under Idaho law. We therefore hold that the district court did not err in affirming the
magistrate court’s decision to not refer Isaac’s accusations to the DHW for investigation.
C. The district court did not err in affirming the magistrate court’s decision awarding Lisa
sole physical custody of the children.
The magistrate court awarded sole physical custody to Lisa after analyzing each of the
factors prescribed in Idaho Code section 32-717. That section sets forth the factors that the
magistrate court must consider when making child custody determinations:
(1) In an action for divorce the court may, before and after judgment, give such
direction for the custody, care and education of the children of the marriage as may
seem necessary or proper in the best interests of the children. The court shall
consider all relevant factors which may include:
(a) The wishes of the child’s parent or parents as to his or her custody;
(b) The wishes of the child as to his or her custodian;
15
(c) The interaction and interrelationship of the child with his or her parent
or parents, and his or her siblings;
(d) The child’s adjustment to his or her home, school, and community;
(e) The character and circumstances of all individuals involved;
(f) The need to promote continuity and stability in the life of the child; and
(g) Domestic violence as defined in section 39-6303, Idaho Code, whether
or not in the presence of the child.
I.C. § 32-717(1).
On intermediate appeal, Isaac argued that there is a presumption that joint physical custody
is awarded unless there is a finding of domestic violence. Isaac argued that the courts in Idaho,
including the magistrate court in his case, were generally biased against fathers in child custody
disputes. The district court affirmed the magistrate court’s decision, concluding that the magistrate
court properly considered the factors outlined in Idaho Code section 32-717(1). The district court
concluded that the magistrate court properly took into consideration that Isaac now lived in
Oklahoma and was a proven flight risk and concluded there was no evidence that the magistrate
court was biased against Isaac because he was a father.
On appeal to this Court, Isaac argues that the district court erred because the magistrate
court abused its discretion when it based its custody decision primarily on Isaac’s statements
regarding the court’s jurisdiction in this matter and failed to adequately consider the other factors
identified in section 32-717(1). Lisa argues that the magistrate court considered all of the statutory
factors in its custody decision and gave appropriate weight to Isaac’s statements that he would not
follow the magistrate court’s orders because he believed it lacked jurisdiction.
We review child custody determinations for an abuse of discretion. Kelly v. Kelly, 165
Idaho 716, 723, 451 P.3d 429, 436 (2019). “Under this standard the Court asks whether the
magistrate court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer
boundaries of its discretion; (3) acted consistently with the legal standards applicable to the
specific choices available to it; and (4) reached its decision by the exercise of reason.” Id. (citing
Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). “In a decision regarding
a custody award or modification, an abuse of discretion occurs when the evidence is insufficient
to support a magistrate’s conclusion that the interests and welfare of the children would be best
served by the magistrate court’s order.” Id. (alteration and internal quotation marks omitted)
(quoting Clair v. Clair, 153 Idaho 278, 283, 281 P.3d 115, 119 (2012)).
16
Further, Idaho Code section 32-717 “sets forth relevant, non-exhaustive factors to aid in
making a child custody determination” and “[t]he trial judge has wide discretion when weighing
these and other relevant factors.” King, 137 Idaho at 444, 50 P.3d at 459 (citation omitted). “An
overemphasis on any single factor is . . . an abuse of discretion.” Bartosz v. Jones, 146 Idaho 449,
458, 197 P.3d 310, 319 (2008).
The magistrate court considered all seven factors in Idaho Code section 32-717(1) in
granting Lisa sole physical custody. It determined in its written order that: (1) both parties wanted
primary physical custody with supervised visits for the other party; (2) there was no evidence
provided concerning the wishes of the minor children; (3) the children were comfortable and safe
in their current living environment with Lisa and her parents, and there was little evidence
regarding how the children would interact with Isaac’s family living in Oklahoma; (4) the children
had adjusted well to living with Lisa in Idaho Falls; (5) the children were safe and well cared for
by Lisa, and Isaac stated that he refused to be bound by orders of the court and would likely attempt
to flee the state with the children again, which would be disruptive to the children and cause great
anguish and turmoil to Lisa and the children; (6) continuity and stability would only be achieved
if Lisa had sole physical custody of the minor children because Isaac may flee the state with them;
and (7) there was no evidence of domestic violence. The magistrate court weighed these factors
and concluded that it was in the best interests of the children to grant sole physical custody to Lisa.
On appeal to this Court, Isaac argues that our decision in Moye v. Moye, 102 Idaho 170,
627 P.2d 799 (1981), requires reversal because the magistrate court overemphasized one section
32-717 factor to the exclusion of others: that Isaac refused to be bound by the orders of the
magistrate court and could flee with the children again. In Moye, the Court reversed a magistrate
court’s decision to award a father custody because the magistrate court overemphasized the
negative impact the mother’s epilepsy had on the best interests of the children while ignoring any
evidence of the father’s ability to provide for the children. 102 Idaho at 172, 627 P.2d at 801.
We conclude that this case is distinguishable from Moye. The problem in Moye was that
the magistrate court made its decision based on one factor and did not consider the other factors
impacting the best interests of the children. See id. As a result, its decision to grant sole custody to
the father was not properly supported. Id. That is not the situation in this case.
Here, the magistrate court expressly considered all the factors and appropriately gave more
weight to Isaac’s statements that indicated he would likely ignore any orders of the magistrate
17
court. By the time of the Idaho court trial, Isaac was seeking sole physical custody of the children
in both the Idaho and Cherokee Nation courts. It was entirely appropriate for the magistrate court
to give more weight to evidence indicating that, if the magistrate court granted joint physical
custody, Isaac would likely ignore the Idaho custody order, which could result in Isaac again taking
the children to Oklahoma and refusing to return them to Lisa. The magistrate court reasonably
concluded that Isaac’s fleeing Idaho with the children would disrupt the children’s lives and not
be in their best interests. Nothing in section 32-717 or this Court’s caselaw suggests that the
magistrate court was required to give equal weight to all the factors. To the contrary, we have held
that “[t]he trial judge has wide discretion when weighing these and other relevant factors.” King,
137 Idaho at 444, 50 P.3d at 459 (citation omitted).
Isaac argues that the magistrate court ignored his evidence that Lisa abused the children
and was a negligent mother. However, as discussed above, the magistrate court did consider the
evidence presented by Isaac, along with Lisa’s explanation, and found that Isaac’s allegations did
not rise to the level of child abuse. For the reasons discussed previously, we find no error in its
conclusion that Isaac’s evidence did not establish Lisa had engaged in child abuse as defined in
section 16-1602(1)(a). We affirm the district court’s decision affirming the magistrate court’s
decision awarding Lisa sole physical custody.
D. The district court erred when it affirmed the magistrate court’s decision awarding joint
legal custody while at the same time giving Lisa final decision-making authority on all
matters.
In its written decision following trial, the magistrate court awarded Isaac and Lisa joint
legal custody while also ordering that, if the parties could not agree on an issue, Lisa had final
decision-making authority:
The issue of legal custody is before the court. The court maintains that the
parties should be required to “. . . share the decision-making rights, responsibilities
and authority relating to the health, education and general welfare of a child or
children.” Idaho Code § 32-717B. The court concludes that the parties are capable
of so doing, so long as they both continue to put the best interest of the minor
children in front of their own interests. The court concludes that it is important for
both parties to be apprised of actions that affect the minor children in these areas.
PROVIDED, HOWEVER, if the parties do not agree on issues relating to the
health, education and general welfare of the minor children Lisa shall have the final
say and determination as to how to proceed, at all times, on all such issues, at her
sole discretion, even over Isaac’s objection.
18
Under this condition, only, the court concludes that it is in the best interest
of the minor children to maintain between the parties joint legal custody of the
minor children.
(Alteration in original; emphasis added.)
On appeal to the district court, Isaac argued that the magistrate court erred by “redefining”
joint legal custody as sole legal custody by giving Lisa final decision-making authority on all issues
relating to the children. The district court affirmed the magistrate court’s order concerning legal
custody after concluding that the magistrate court had actually awarded Lisa sole legal custody.
The district court concluded that the magistrate court correctly considered the factors under section
32-717(1) to determine that sole legal custody was in the best interests of the children.
On appeal to this Court, Isaac argues that the district court erred because the magistrate
court abused its discretion by awarding the parties joint legal custody and then giving Lisa final
decision-making authority. Isaac argues that doing so essentially gave Lisa sole legal custody. Lisa
concedes that the magistrate court effectively gave her sole legal custody but argues that it was
within the magistrate court’s discretion to do so. Lisa asserts that the magistrate court’s findings
concerning the best interests of the children as related to sole physical custody also support its
decision effectively awarding her sole legal custody.
“In an action for divorce the court may, before and after judgment, give such direction for
the custody, care and education of the children of the marriage as may seem necessary or proper
in the best interests of the children.” I.C. § 32-717(1). “The court may award either joint physical
custody or joint legal custody or both as between the parents or parties as the court determines is
for the best interests of the minor child or children.” I.C. § 32-717B(1). “Joint legal custody” is
defined as “a judicial determination that the parents or parties are required to share the decision-
making rights, responsibilities and authority relating to the health, education and general welfare
of a child or children.” I.C. § 32-717B(3). “[A]bsent a preponderance of the evidence to the
contrary, there shall be a presumption that joint custody is in the best interests of a minor child or
children.” I.C. § 32-717B(4). “Since the children’s best interests are the paramount consideration,
a court may decline to award joint custody if doing so will serve the children’s best interests.”
Danti v. Danti, 146 Idaho 929, 935, 204 P.3d 1140, 1146 (2009) (citing I.C. § 32-717B(4)). “If the
court declines to enter an order awarding joint custody, the court shall state in its decision the
reasons for denial of an award of joint custody.” I.C. § 32-717B(1).
19
In Mahnami v. Mahnami, the Idaho Court of Appeals reversed a custody order that ordered
joint legal custody but also ordered that the mother had final decision-making authority regarding
the child’s health, education, and general welfare. 156 Idaho 338, 325 P.3d 679 (Ct. App. 2014).
The Court of Appeals concluded that the magistrate court erred because the magistrate court had
in effect “redefined” joint legal custody to give the mother sole legal custody, which contradicted
the definition of joint legal custody in Idaho Code section 32-717B(3). Id. at 343–44, 325 P.3d at
684–85. We note that the presiding magistrate judge in this case is the same magistrate judge who
was reversed in Mahnami and that the order in this case is nearly identical to the one that was
reversed in Mahnami.
We agree with Isaac that the magistrate court abused its discretion because its decision is
inconsistent with Idaho Code section 32-717B and the Idaho Court of Appeals’ decision in
Mahnami. Section 32-717B(3) defines joint legal custody as shared decision-making concerning
the health, education, and general welfare of the children. Awarding sole decision-making
authority to Lisa is the opposite of this definition.
However, while there is a statutory presumption that joint legal custody is in the best
interests of the children, a magistrate court may award sole legal custody if a preponderance of the
evidence indicates that sole legal custody is in the best interests of the children. See I.C. § 32-
717B(1), (4). We agree with Lisa that the magistrate court’s findings of fact that support its award
of sole physical custody to Lisa would also appear to support an award of sole legal custody to
Lisa. We also agree with the district court that it appears that the magistrate court intended to award
Lisa sole legal custody. Regardless of its intentions, however, the magistrate court’s decision
concerning legal custody is inconsistent with Idaho Code section 32-717B, which requires the
court to “state in its decision the reasons for denial of an award of joint custody.”
We hold that the district court erred in affirming that portion of the magistrate court’s
decision concerning legal custody because the magistrate court’s decision failed to comply with
section 32-717B. We therefore reverse the district court’s order and remand to the district court
with instructions to reverse and remand to the magistrate court for clarification of its decision
concerning legal custody.
E. The district court erred in affirming the magistrate court’s child support order because
the magistrate court failed to explain its reasons for backdating child support.
The magistrate court ordered Isaac to pay $315 per month in child support beginning in
January 2021, the first full month after which Isaac commenced this action. The child support
20
amount was calculated based on Lisa having ninety percent physical custody and Isaac having ten
percent. The record suggests that Isaac’s ten percent came from the magistrate court’s order
allowing Isaac visitation rights at the discretion of Lisa. The magistrate court did not explain why
it backdated the child support payments.
On appeal to the district court, Isaac argued that the magistrate court erred by backdating
child support because Isaac had joint physical custody of the children between January and
September 2021. Additionally, Isaac argued that the magistrate court did not make written or
specific findings on the record for why it was departing from the Idaho Child Support Guidelines,
which guide the award of child support in custody disputes.
The district court affirmed the magistrate court’s order backdating child support. The
district court concluded that child support payments could be backdated when expenses have
actually been paid or incurred by the party seeking child support. It concluded that both parties
paid expenses for the children after Isaac filed the divorce petition, so it was appropriate for the
magistrate court to backdate child support. The district court found it inconsequential that Isaac,
at times during the proceedings, had joint custody of the children because there was also a time
during the proceedings that Lisa had sole custody over the children and thus incurred additional
costs.
Isaac asserts two arguments for why the magistrate court’s child support award was
erroneous and for why the district court erred in affirming it. First, Isaac argues that the magistrate
court impermissibly modified child support in the absence of a motion for modification. This
argument hinges on Isaac’s characterization of the magistrate court’s oral order at the June 16,
2021, hearing, which did not award child support, as the original child support determination. He
refers to the magistrate court’s written decision following the trial, which ordered Isaac to pay a
monthly amount backdated to January 1, 2021, as a “modification” of its prior “decision” at the
June 16, 2021, hearing to not award child support. Isaac contends that this was erroneous because
no party had requested a modification of child support. See I.C. § 32-709(1) (providing that child
support decrees can only be modified by a “motion for modification and only upon a showing of
a substantial and material change of circumstances”). Lisa responds that the magistrate court’s
written order following the trial did not modify child support payments but was ordering child
support in the first instance.
21
We reject Isaac’s modification argument because it is based on a mischaracterization of the
record. The magistrate court did not enter an order regarding child support at the June 16, 2021,
hearing. Instead, it expressly stated that it was not ruling on child support at that hearing because
there was not clear evidence of the parties’ incomes. It ordered each party to pay their own living
expenses. The magistrate court’s written decision following the court trial was not a modification
because there was no prior child support order in place. Isaac’s argument to the contrary is without
merit.
Next, Isaac contends that the magistrate court erred in backdating child support to January
1, 2021, because Isaac had primary custody of the children from December 2020 to June 2021,
and then he and Lisa had a 50/50 custody schedule until the magistrate court entered its September
23, 2021, temporary order granting Lisa sole physical custody. Isaac argues that it is unfair for him
to have to pay child support to Lisa for a timeframe when he had either primary physical custody
or shared custody with Lisa 50/50.
Lisa responds that the magistrate court did not err because Idaho law authorizes an award
of child support from the filing date of a petition. Lisa argues that the court did not abuse its
discretion because Isaac was the one who requested child support payments to begin in January
2021 in his divorce petition—although he requested that Lisa pay him child support. Lisa further
asserts that she is entitled to have the child support backdated because she incurred expenses
related to the children during the December 2020 to June 16, 2021, timeframe, including traveling
to Oklahoma to recover the children following the Cherokee Nation court’s dismissal of the
guardianship petition.
“The magistrate court’s award of child support is reviewed by this Court under an abuse of
discretion standard.” Henderson v. Smith, 128 Idaho 444, 451, 915 P.2d 6, 13 (1996). “In the
absence of a clear showing of an abuse of such discretion, the awards made by the trial court will
not be disturbed on appeal.” Brammer v. Brammer, 93 Idaho 671, 675, 471 P.2d 58, 62 (1970).
There is a “strong public policy favoring fair and adequate child support awards that are in the best
interests of the children.” Garner v. Garner, 158 Idaho 932, 936–37, 354 P.3d 494, 498–99 (2015).
Idaho Code section 32-706(1) gives a trial court authority to “order either or both parents
owing a duty of support to a child to pay an amount reasonable or necessary for his or her support
and education until the child is eighteen (18) years of age . . . after considering all relevant
factors . . . .” I.C. § 32-706(1). Section 32-706(1) then provides a list of factors that a court should
22
consider in awarding child support. I.C. § 32-706(1)(a)–(f). While the statute does not expressly
permit child support to be awarded retroactively, its language also does not mandate that the award
of child support only be prospective from the date of the child support order. In short, the statute
is silent as to whether child support can be awarded back to the date of the filing of the petition.
Lisa argues that we should interpret section 32-706 to permit the backdating of child
support because we have held as much in connection with orders modifying the amount of child
support, citing Levin v. Levin, 122 Idaho 583, 589, 836 P.2d 529, 535 (1992), and Rohr v. Rohr,
128 Idaho 137, 142, 911 P.2d 133, 138 (1996). The caselaw Lisa cites, however, relies on the
language of Idaho Code section 32-709, which governs the modification of a child support order
and permits an order modifying child support to be made retroactive to the filing date of the motion
for modification. Because of this statutory difference, the decisions Lisa cites do not govern the
issue we address here: whether the trial court can backdate its first order for child support.
However, this question is answered by other provisions of Idaho law.
The parents’ joint duty to support their children exists during the pendency of the divorce
proceedings. I.R.F.L.P 120(c)(1) (2021). A trial court has authority to “order either or both parents
owing a duty of support to a child to pay an amount reasonable or necessary for his or her support
and education until the child is eighteen (18) years of age . . . .” I.C. § 32-706(1). We conclude
that because parents have a joint duty to support their children during the divorce proceedings, the
trial court’s authority to order parents to pay a reasonable amount of child support extends to the
pendency of the divorce proceeding.
The calculation of a reasonable amount of child support is governed by Idaho’s Child
Support Guidelines, which “are premised on the basic principle that both parents should share legal
responsibility for supporting their child or children in proportion to their Guidelines Income.”
Noble v. Fisher, 126 Idaho 885, 888, 894 P.2d 118, 121 (1995) (internal quotation marks and
citation omitted). Child support payments may be adjusted under the Child Support Guidelines
based on the actual percentage of time a parent has physical custody of the child. I.R.F.L.P
120(i)(3)–(6) (2021). There is a rebuttable presumption that the amount of the child support
awarded shall be the amount calculated under the Child Support Guidelines, unless application of
the guidelines would be unjust or inappropriate. I.C. § 32-706(5). If a court departs from the Child
Support Guidelines, the court must make a written or specific finding on the record that the
23
application of the guidelines would be unjust or inappropriate in the particular case before the
court. Id.
In this case, the magistrate court ordered Isaac to pay Lisa $315.42 per month, which was
based in part on Lisa having ninety percent custody of the children and Isaac having ten percent
custody. Without explanation, the magistrate court ordered Isaac to pay this amount dating back
to January 1, 2021. The magistrate court’s custody order was dated March 23, 2022. The record
indicates that Isaac had more than ten percent custody between January 1, 2021, and September
13, 2021:
• From December 24, 2020, to June 16, 2021: Isaac had physical custody of the children
during the school week, and Lisa had physical custody on the weekends and any holidays.
Lisa was also able to visit the children after school hours.
• From June 16, 2021, to September 13, 2021: Isaac and Lisa shared custody 50/50 pursuant
to the magistrate court’s temporary order dated June 16, 2021.
• From September 13, 2021, to the present: The children remained with Lisa through trial
pursuant to the magistrate court’s orders awarding Lisa sole physical custody.
Isaac’s increased percentage of custody during the January 1 to September 13 timeframe
would likely result in a different child support amount under the Child Support Guidelines. The
magistrate court did not explain why it ordered Isaac to pay an amount that likely deviated from
the Guidelines amount for that timeframe. We recognize that the magistrate court may have
intentionally deviated from the Guidelines amount to compensate Lisa for other expenses she
incurred during the timeframe. However, without any explanation for the backdated child support,
we cannot conclude that the magistrate court exercised reason in its decision. Davis v. Tuma, 167
Idaho 267, 279, 469 P.3d 595, 607 (2020) (“This Court is unable to review a ruling that was not
clearly made or supported by legal reasoning. As a result, the district court abused its
discretion . . . .”).
The district court did not cite anything from the record in support of its conclusion that the
magistrate court backdated support to compensate Lisa for other amounts she incurred. In the
absence of any explanation by the magistrate court for why it backdated child support in an amount
that deviated from the Guidelines, the district court erred in affirming its decision. We therefore
reverse the district court’s decision affirming the magistrate court on this point and remand for
further proceedings consistent with this opinion.
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F. We award Lisa partial attorney fees on appeal.
Isaac seeks attorney fees pursuant to Idaho Code sections 12-120 and 12-121. However,
Isaac provides no argument on why attorney fees should be awarded in his favor. A party who fails
to support their request with argument or caselaw is not entitled to an award of fees. O’Holleran
v. O’Holleran, 171 Idaho 671, 677, 525 P.3d 709, 715 (2023). Because Isaac failed to support his
request with argument, we decline to award attorney fees.
Lisa seeks attorney fees on appeal pursuant to Idaho Code section 12-121, as well as Idaho
Code sections 32-704 and 32-705. “[A]ttorney fees may be awarded to a prevailing party under
section 12-121 if the Court believes that the proceeding was brought, pursued, or defended
frivolously, unreasonably or without foundation.” Kelly v. Kelly, 171 Idaho 27, 49, 518 P.3d 326,
348 (2022). “When awarding fees under section 12-121, apportionment of attorney fees is
appropriate for those elements of the case that were frivolous, unreasonable, and without
foundation.” Id. (internal quotation marks and alteration omitted) (quoting Baughman v. Wells
Fargo Bank, N.A., 162 Idaho 174, 183, 395 P.3d 393, 402 (2017)).
We conclude that Lisa is entitled to a partial award of attorney fees on appeal under section
12-121 for Isaac’s subject matter jurisdiction argument. Isaac’s argument cited the UCCJEA, but
then ignored his own concession in his divorce petition that Idaho was the children’s home state.
Isaac failed to provide any evidence that the Cherokee Nation court had assumed jurisdiction over
the custody matter. Instead, the evidence indicates that the Cherokee Nation court repeatedly
declined to assume jurisdiction because Idaho was the children’s home state. Despite this, Isaac
continued to assert his jurisdictional argument on appeal. We conclude that Isaac unreasonably
pursued this argument and failed to properly support it on appeal. We therefore award Lisa her
reasonable attorney fees incurred in responding to Isaac’s jurisdictional argument. However, we
do not award Lisa attorney fees under Idaho Code section 12-121 for Isaac’s remaining arguments
in this appeal. Isaac made colorable legal arguments on the issues, supported them with citations
to the record, and prevailed on two of them.
Turning to Lisa’s other basis for fees, section 32-704(3) provides that a court may award
attorney fees in divorce proceedings “for the cost . . . of maintaining or defending any [divorce]
proceeding under this act and for attorney’s fees . . . .” I.C. § 32-704(3). In making this
determination, the court considers the financial resources of both parties and the factors set forth
25
in Idaho Code section 32-705. Id. “To be awarded attorney fees under section 32-704, a party need
not be a prevailing party.” Reed v. Reed, 157 Idaho 705, 718, 339 P.3d 1109, 1122 (2014).
We take this opportunity to reemphasize that seeking attorney fees pursuant to section 32-
704(3) is a fact sensitive inquiry based on evidence that should be presented to the trial court in
the first instance, not to this Court on appeal. See Reed, 137 Idaho at 61, 44 P.3d at 1116 (“The
decision whether to award attorney fees under [section 32-704] is a matter of discretion for the
trial judge, upon consideration of the factors contained in this section and in I.C. § 32–705”); Kelly
v. Kelly, 171 Idaho 27, 48, 518 P.3d 326, 347 (2022). A motion before the trial court is the proper
mechanism by which a party should seek attorney fees to defend or prosecute an appeal pursuant
to section 32-704(3). See Wilson v. Wilson, 131 Idaho 533, 537, 960 P.2d 1262, 1266 (1998). The
only occasion in which this Court will consider awarding attorney fees pursuant to section 32-
704(3) in the first instance is the rare occurrence when a party seeks to invoke this Court’s original
jurisdiction by asking for a writ in aid of our appellate jurisdiction. See Brashear v. Brashear, 71
Idaho 158, 165, 228 P.2d 243, 247 (1951); Bedke v. Bedke, 56 Idaho 235, 53 P.2d 1175, 1176
(1935). This has not occurred here, so we leave any determination of attorney fees pursuant to
Idaho Code section 32-704(3) to the discretion of the trial court.
V. CONCLUSION
For the foregoing reasons, the decision of the district court is affirmed in part, reversed in
part, and remanded for further proceedings consistent with this opinion. We award Lisa her
reasonable attorney fees for responding to Isaac’s jurisdictional argument. As both parties
prevailed in part, neither party is awarded costs on appeal.
Chief Justice BEVAN, and Justices BRODY, MOELLER, and MEYER CONCUR.
26