Moye v. Moye , 102 Idaho 170 ( 1981 )

DONALDSON, Justice.

Appellant Lynnae Denise Moye and respondent Terry Andrew Moye were married December 28, 1974. Two children were born of this marriage, a girl, now 4V2 years old, and a boy, now 2V2 years old. The parties separated on October 16, 1978 and on the following October 20, the appellant-mother filed for divorce. Pending the outcome of the divorce proceeding, the mother retained custody of the children under a temporary award made by a lawyer-magistrate.

The divorce proceeding was bifurcated for purposes of trying the custody issue first. Subsequently, the district court, Judge Gilbert C. Norris presiding, granted custody of the children to the respondent-father. The mother immediately appealed the Norris order, but because of the bifurcated nature of the proceedings, which presented problems of finality for purposes of review, this Court on March 2, 1979, remanded the case to the district court for further proceedings.

On April 4, 1979, Judge Norris, citing a personal bias developed because of the publicity of the case, withdrew and submitted the matter for reassignment. Subsequently, Judge Edward J. Lodge assumed jurisdiction of the case. On June 15, 1979, Judge Lodge filed a final decree of divorce which in addition to resolving all other issues at dispute, ordered: “That custody of the minor children is left contingent upon a final decision by the Supreme Court to the State of Idaho, subject to the stipulation to divide custody pending appeal.”

Thus, the present posture of the case as it has filtered to this appellate level appears as follows. The Norris order is, at best, an interlocutory order of custody. The Lodge decree is a final judgment which, pursuant to I.A.R. 17(e), incorporates for purposes of appeal the Norris order. Accordingly, review of the Lodge decree, received by this Court for purposes of appeal pursuant to our order of September 17, 1979, necessitates review of the Norris order.

The standard of review is well established:

“Questions of child custody are within the discretion of the trial court, and it has been repeatedly held that this Court will not attempt to substitute its judgment and discretion for that of the trial court except in cases where the record reflects a clear abuse of discretion by the trial court.”

Strain v. Strain, 95 Idaho 904, 905, 523 P.2d 36, 37 (1974); quoted in Posey v. Bunney, 98 Idaho 258, 261, 561 P.2d 400, 403 (1977). Accord Blakely v. Blakely, 100 Idaho 107, 594 P.2d 145 (1979); Koester v. Koester, 99 Idaho 654, 586 P.2d 1370 (1978). Saviers v. Saviers, 92 Idaho 117, 438 P.2d 268 (1968). See I.C. § 32-705.

In the instant action, the appellant-mother’s basic contention is that Judge Norris abused his discretion in granting custody to the father because the judge based his order primarily upon the fact that appellant suffers from epilepsy. She also argues that pursuant to the Tender Years Doctrine, she should have received custody.

Upon review, we do not find that the Norris order is in error simply because the mother’s physical ailment was a consideration in the judge’s formulation of the custody grant. The rule in Idaho is that in determining the custody of a minor child, the child’s welfare and best interest is of paramount importance. This rule is substantiated by case law, Blakely v. Blakely, supra, Hawkins v. Hawkins, 99 Idaho 785, 589 P.2d 532 (1978), Koester v. Koester, supra, Cope v. Cope, 98 Idaho 920, 576 P.2d 201 (1978); Posey v. Bunney, supra, Strain v. Strain, supra, Adams v. Adams, 93 Idaho 113, 456 P.2d 757 (1969).¹ It follows that the physical condition of a parent is a valid consideration in a “best interests” approach. Accordingly, such a consideration made by a court does not in itself present an incident of error.

Whether there has been abuse of discretion in the custody grant, however, is a matter of inquiry which goes beyond merely looking at a court’s consideration of a parent’s physical health. An abuse of discretion by the trial court occurs when the evidence is insufficient to support its conclusion that the welfare and interests of a child will be best served by a particular custody award. Hawkins v. Hawkins, supra; Koester v. Koester, supra; Cope v. Cope, supra; Prescott v. Prescott, 97 Idaho 257, 542 P.2d 1176 (1975); I.R.C.P. 52(a). It follows that an abuse of discretion may also occur where the court overemphasizes one factor, such as a parent’s physical condition, thereby similarly failing to support its conclusion that the welfare and interests of a child will be best served by a particular custody award. In the instant case, we find this latter abuse of discretion.

Specifically, the evidence presented and so found by the trial court, that the appellant-mother suffers from epilepsy which is controlled to a degree through medication, that she requires nine to ten hours of sleep per night, that she has migraine headaches and that she has post-seizure lack of energy, does not, under the circumstances as they appear on the record, sufficiently support the court’s conclusion that it is the best interest of the children to vest custody in the respondent-father. The court did make some findings as regards the status of the respondent-father but the court’s apparent overemphasis of but one consideration, that being the mother’s physical condition, convinces this Court that all other relevant factors impacting upon the best interests of the children were not duly considered or, if they were, it was not so reflected upon the record.² We therefore reverse the Norris order and remand to the district court for further proceedings. Pending resolution of the custody issue by the district court, the Lodge decree granting joint custody pursuant to stipulation shall remain in effect except for that portion of the decree requiring that an adult female be with appellant during visitation times, a burden we find to have been imposed without any substantial evidence to support it. We observe further that the Tender Years Doctrine, that custody of a child of tender years should be vested in the mother, has limited impact in Idaho law. To the extent previous case law exists which suggests a preference for the mother as custodian of a child of tender years, the preference exists only when all other considerations are equal. Prescott v. Prescott, supra. As we have previously held, the considerations made by the trial court are incomplete and the preference is therefore inapplicable.

Reversed and remanded. Costs to appellant. No attorney fees awarded.

McFADDEN, BISTLINE and SHEPARD, JJ., concur.

1 .It is interesting to note that the legislature has now statutorily recognized the best interest rule in I.C. § 32-717 (Supp.1980):

“Custody of children — Best interest. — 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:

1. The wishes of the child’s parent or parents as to his or her custody;

2. The wishes of the child as to his or her custodian;

3. The interaction and interrelationship of the child with his or her parent or parents, and his or her siblings;

4. The child’s adjustment to his or her home, school, and community;

5. The mental and physical health and integrity of all individuals involved; and

6. The need to promote continuity and stability in the life of the child.”

2 . The Norris order contained ten findings of fact. Six of those findings deal with the mother’s physical health. One other finding is that each of the parties loves the children. Only the remaining three concern the status of the father and one, finding number eight, contains what we consider to be irrelevant comments by the court concerning the father’s attitude towards dry diapers.