Koester v. Koester ( 1978 )

McFADDEN, Justice.

This appeal is from a divorce decree also involving a division of marital assets, custody, support and visitation rights of the parties. Both parties appeal from a judgment of the district court which modified in part a divorce decree by the magistrate’s division.

Robert and Cleo Koester, respondent and appellant respectively, were married in 1963 and two children were born of that marriage. On April 4, 1974, the parties separated and drafted an agreement temporarily dividing marital assets and giving custody of the children to respondent. After the parties separated, appellant moved from Wisconsin to Nebraska.¹ When attempts at reconciliation failed, respondent, who had secured a teaching position in Idaho, moved from Wisconsin to Idaho and prior to entry of the Nebraska decree in the separate maintenance action initiated the present divorce action in the magistrate’s division of the Fourth Judicial District Court.

The magistrate granted the parties² a divorce and gave custody of the children to respondent, finding that the children’s best interest dictated that respondent retain custody of the children. The case was reopened to admit evidence concerning appellant’s earning capacity and her recent move from Nebraska to Idaho that enabled her to exercise maximum visitation rights. In a separate memorandum opinion the magistrate established visitation rights, granting appellant visitation rights on alternate weekends, holidays, and for a thirty day period during school summer vacation. In a later memorandum opinion the magistrate determined the parties’ claims for costs, attorney fees, alimony, property settlement rights and child support payments. Costs, attorney fees and appellant’s request for alimony were denied. The magistrate found that the April 4, 1974, property settlement agreement was not binding, but the parties’ division of marital assets and liabilities would approximate a fair allocation if appellant were awarded a $1500 reimbursement. Concerning the claims for child support, the magistrate found:

It is clear that [appellant] has the financial ability to contribute to the support of the children. It is also clear that [respondent] has the ability to support the children without a contribution from [appellant]. While it is not a direct equivalency, relieving [appellant] from the child support obligation will at least in part compensate [appellant] for the contribution she made toward [respondent’s] education. Therefore, [respondent’s] claim for support is denied .... Should the needs of the children dictate this provision is subject to further court order. (Emphasis added.)

Appellant appealed the magistrate’s determination to the district court. Respondent did not, however, contest the magistrate’s determination. On appeal, the district court heard the case based on the appellate record from the magistrate’s division and took the matter under advisement. Prior to a determination on the merits and while the case was under advisement, appellant moved to supplement the appellate record to reflect a material change of circumstances that had occurred since the appeal. The district court granted the motion to supplement the appellate record and the parties stipulated that the change in circumstances could be considered by the district court on affidavits.

In her affidavit before the district court, appellant stated that respondent and the children had moved to Texas after the case had been taken under advisement on appeal to the district court. Appellant alleged that respondent’s actions were an attempt to thwart her rights of reasonable visitation and that appellant was financially unable to move to Texas in order to visit the children. Appellant therefore requested that the district court either modify the award of custody or change her visitation rights. Respondent stated in his affidavit that he had moved to Texas to accept a more responsible teaching position of enhanced professional standing and that the move had not been made to deprive appellant of visitation privileges. Respondent court’s scope of review changed from an appellate review under I.R.C.P. 83(u)(l) to a trial de novo under I.R.C.P. 83(u)(2). Although the resolution of this issue is not explicitly stated in I.R.C.P. 83(u)(2), and is therefore a matter of first impression, we hold that where the district court chooses to handle an appeal as an appellate review and then elects to hear additional evidence on one or more issues, those issues affected by the additional evidence shall be treated as if involving a trial de novo. In other words, to the extent that the new evidence affects the decision of the magistrate, the district court shall act as a trial court. Where the additional evidence admitted by the district court does not affect the determination of the magistrate, the district court shall act as an appellate court.

On further appeal to this court from the determination of the district court where additional evidence is presented pursuant to I.R.C.P. 83(u)(2), the new matters affecting the magistrates determination will be scrutinized by this court according to the same standard of review as other appeals from the district court. However, where the district court’s review of the magistrate’s determination is not affected by the new matters presented to the district court, our review of the district court will be as though the district court was an intermediate appellate court.

Appellant assigns error to awarding custody of the children to respondent, challenging this determination of the magistrate’s court as well as that of the district court. She claims that both courts abused their discretion in denying her continuous custody of the children. In custody disputes, the awarding of custody of minor children rests within the sound discretion of the trial court and will not be upset on appeal absent an abuse of discretion. McNett v. McNett, 95 Idaho 59, 501 P.2d 1059 (1972); Saviers v. Saviers, 92 Idaho 117, 438 P.2d 268 (1968); Bryant v. Bryant, 92 Idaho 76, 437 P.2d 29 (1968). An abuse of discretion occurs when the evidence is insufficient to support a finding that the welfare and interests of the children will be best served by changing custody of the children. Tomlinson v. Tomlinson, 93 Idaho 42, 454 P.2d 756 (1969); Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784 (1963). In the instant case the magistrate’s court found that it would be detrimental to the welfare and best interests of the children to remove them from established patterns and relationships which they have been accustomed to in Idaho. Further, it found that, after comparing how each party would serve the welfare and best interests of the children, the evidence established that the children’s best interest and welfare would be served by having custody remain with respondent father, at the time of the magistrate court’s decree. While there is conflicting evidence, it is the conclusion of this court that those findings by the magistrate’s court are fully sustained by the record. On appeal to the district court, that court made the same determination, stating “[t]he award of custody to the plaintiff father [respondent] was based on substantial evidence and the evidence does in fact support the findings made . . . [by the court] below.” We find no abuse of discretion and no error on the part of the district court in affirming the award of custody of the children to respondent by the magistrate’s court, as of the time of the magistrate court’s decree.

While appellant claims the court erred in awarding custody of the children to the respondent, respondent cross-appeals claiming the district court erred in awarding appellant custody of the children for the three summer months, and in granting to her visitation rights during the Christmas vacation. However, the district court found a material and permanent change of circumstances resulting from respondent’s departure to Texas, which took place the summer following entry of the decree and while the ease was on appeal to the district court. The district court found that both parents were fit and proper persons to have custody of the children and that the distances involved made visitation with the children difficult for appellant. Based on this substantial change of circumstances appellant was awarded custody during the school summer vacation months to enable the children to spend more time with their natural mother. It is the conclusion of this court, based on this change of circumstances occurring since entry of the magistrate’s decree of custody, that the district court did not abuse its discretion in awarding respondent custody of the children, subject to appellant’s rights of custody during the summer. The modification of custody reflects a careful determination that the children’s best interests require that they spend time with their mother. While divided custody of children is not encouraged in this state, Merrill v. Merrill, 83 Idaho 306, 362 P.2d 887 (1961), an award of divided custody is not an abuse of discretion where justifying circumstances appear. Wilson v. Wilson, 77 Idaho 325, 291 P.2d 1113 (1955). In Nielsen v. Nielsen, 87 Idaho 578, 394 P.2d 625 (1964), this court noted:

It is not unusual for the courts of Idaho to grant one parent the right to have child custody for one or two months during the year while the other parent is given custody for the remaining months of the year, Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784; Merrill v. Merrill, 83 Idaho 306, 362 P.2d 887; Smith v. Smith, 67 Idaho 349, 180 P.2d 853; Tobler v. Tobler, 78 Idaho 218, 299 P.2d 490, where the welfare and best interest of the child require this.

Id. at 582, 394 P.2d at 626-27. Because of the distances involved and appellant’s inability to effectively exercise visitation rights, division of custody instead of merely granting increased visitation rights was a practical solution. No error was committed by the district court in dividing custody in this case. Accordingly, the judgment of the district court modifying custody is affirmed.

Based on the material, permanent and substantial change of circumstances, the district court also properly determined respondent’s child support obligation during the time of appellant’s custody of the children. The magistrate did not address this issue because continuous custody was originally awarded to respondent. Based on the additional evidence before the district court requiring modification of custody, the district court was required to determine respondent’s child support obligation, changed visitation rights and allocation of travel expenses incurred in exercising visitation and custodial rights. Although the magistrate found that appellant could contribute toward the children’s support, the magistrate found that only respondent was able to support the children without contribution from the other parent. Child support requirements during appellant’s custody of the children was therefore properly an issue presented to the district court by the additional evidence showiiig a change of circumstances occurring after the magistrate’s determination. Similarly, the distances involved and the added costs to be incurred in exercising visitation rights required that the district court address and resolve these issues. Considering the record of the magistrate’s division as supplemented by the additional evidence introduced before the district court, the district court did not err or abuse its discretion in awarding appellant child support payments during the period of her custody of the children, defining the parties visitation rights and transportation responsibilities.

Appellant also maintains that the magistrate made an unjust division of marital assets and liabilities and should have awarded her alimony payments. This court initially notes that the assets involved, having been acquired in either Wisconsin or Nebraska while the parties were still married, are not community property assets. Nevertheless, under the laws of either state the court is directed to equitably divide marital assets, whether real or personal, as is just and equitable.³

The magistrate adjusted the parties’ division of marital assets and liabilities and awarded appellant an additional $1,500 reimbursement. The magistrate denied appellant’s claim for alimony, finding that no further allowance was necessary. These determinations were affirmed by the district court. Appellant has failed to show an abuse of discretion, in the absence of which the decision of the magistrate as affirmed by the district court must be and is affirmed. It should be pointed out that if the children’s future needs dictate, the appellant may still be required to furnish support. Support payments are the rights of the children, not of the parents.

Respondent assigns error to the district court’s award of $750 to appellant as a portion of her attorney fees occasioned by this litigation. This was in effect a reversal of the magistrate’s determination that appellant should not receive any attorney fees. The award of attorney fees is discretionary. I.C. § 32-704. Heidemann v. Heidemann, 96 Idaho 602, 533 P.2d 96 (1974); Adams v. Adams, 93 Idaho 113, 456 P.2d 757 (1969). In the hearing before the magistrate, appellant testified that she was $2,000 in debt, that she had come to Idaho to attend the hearing, that she was unemployed and was seeking employment. The district court found in effect that the magistrate had abused his discretion in not awarding something as attorney fees. In its memorandum opinion the district court stated

The fact that defendant mother had to change her place of residence from Nebraska to Idaho to participate in this litigation and the difference in the relative income of the plaintiff and defendant leads me to the conclusion plaintiff ought to pay at least a portion of defendant’s attorney fees occasioned by this litigation.

It is the conclusion of this court that the district court did not err in modifying the judgment of the magistrate’s court insofar as the award of attorney fees is concerned.

Affirmed; no costs allowed.

DONALDSON and BAKES, JJ., concur.

1 . While in Nebraska appellant instituted an action for separate maintenance, custody of the children, alimony and child support from her husband. This action culminated in an order whereby respondent was granted temporary custody, subject to visitation rights of appellant. Respondent was authorized to maintain the children at Boise, Idaho, and the cause was set for further custody proceedings in July, 1975, unless some other court having jurisdiction of the parties and subject matter determined the issue of custody. The decree also awarded appellant $250 per month alimony.

2 . The magistrates court had before it the decree in the Nebraska action at the time of trial of the Idaho divorce action.

3 . See Wis.Stat. § 247.26; Neb.Rev.Stat. § 42-365; Bliven v. Bliven, 190 Neb. 492, 209 N.W.2d 168 (1973); Lacey v. Lacey, 45 Wis.2d 378, 173 N.W.2d 142 (1970).