Jane Doe (2016-01) v. John Doe

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 43774
JANE DOE (2016-1), )
) Boise, May 2016 Term
Petitioner-Respondent, )
) 2016 Opinion No. 104
v. )
) Filed: September 15, 2016
JOHN DOE, )
) Stephen Kenyon, Clerk
Respondent-Appellant. )
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, Ada County. Hon. Andrew Ellis, Magistrate Judge.
The order of the magistrate court is affirmed.
Eismann Law Offices, Nampa, for appellant. Debra L. Eismann argued.
Jane Doe, Meridian, pro se respondent.
_______________________________________________
HORTON, Justice.
John Doe was involved in a physical altercation with his sixteen year old daughter, C.G.,
resulting in C.G. sustaining a concussion and cervical strain. The magistrate court entered a civil
protection order, which it subsequently modified. John Doe appeals from these orders. John Doe
argues that the magistrate court erred when it determined that there was an “immediate and
present danger of domestic violence” warranting issuance of the protection order and that the
court abused its discretion when it specified that the protection order would be in effect for a
year. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
John Doe and Jane Doe are the father and mother of C.G., a child born in 1999, and share
joint legal and physical custody of C.G. The parties’ briefing before this Court present markedly
different accounts of the events of August 22, 2015, which resulted in the issuance of a
protection order (“the incident”). Our description of the incident is primarily based on the
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evidence presented to the magistrate judge in the form of medical records, a report of a child
protection investigation1 and John Doe’s testimony.
There was significant conflict between John Doe and Jane Doe regarding custody and
visitation issues regarding C.G. both before and after a three-day custody trial in January of
2015. That trial resulted in John Doe receiving visitation with C.G. on alternating weekends and
extended visitation over certain holidays and during the summer. Before the incident, C.G. had
been exhibiting troubling symptomatology, including self-harm by cutting herself, anger, and
depression, which culminated with her running away from her mother’s home the week before
the incident. In the child protection investigator’s view, C.G.’s difficulties appeared “to be in
direct correlation to the ongoing tension between her parents.”
On August 22, 2015, C.G. was visiting her father’s home. John Doe, his wife and C.G.
attended a rodeo. Over the course of the day tension developed between C.G. and John Doe.
C.G. reported to her mother that John Doe had been drinking. The Doe family returned home
after 11 p.m. C.G. was upset upon their return and went outside to telephone her mother. When
she returned inside, John Doe attempted to speak with her, but C.G. refused to speak with him
and went to her room. Around 11:30 p.m., John Doe went into C.G.’s room to talk with her about
why she was upset. Apparently still unwilling to speak with John Doe, C.G. put earbuds in her
ears, turned up the volume of the music playing on her cell phone, and rolled over on her bed,
turning her back to John Doe.
John Doe had imposed restrictions on C.G.’s cell phone use in his home, and C.G. was
required to turn her cell phone off and put it away at bedtime. John Doe removed the earbuds
from C.G.’s ears and told her that she needed to put the cell phone away and go to bed. C.G.
responded with a curse (“F*** you”). John Doe then snatched the cell phone from her. C.G.
attempted to wrestle it back which resulted in a physical altercation. C.G. bit John Doe twice.
John Doe told C.G. that if she kept biting him he would “smack” her. C.G. continued biting him
and John Doe “smacked her a couple of times” to cause her to stop biting him.
John Doe’s wife entered the room and took the phone, agitating C.G. further. John Doe
then attempted to hold onto C.G., explaining that he did so because he was concerned that C.G.
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This report was prepared in response to an order from the magistrate court. The report indicates that the incident
resulted in three distinct referrals to child protection authorities. At least one of these referrals was from St. Luke’s
Meridian Medical Center Emergency Department. C.G.’s treating physician believed that “the nature of the
mechanism of [C.G.’s] injury” warranted reports to child protection and law enforcement authorities.
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might run away because she was angry. John Doe’s attempts to restrain her prompted C.G. to
bite him again. He “smacked her again” and she ceased biting him. John Doe testified that he
never became angry or lost his temper during the incident.
C.G. called Jane Doe afterwards to report that John Doe “had smacked her in the head.”
The next morning, C.G. did not feel well and Jane Doe asked John Doe to take C.G. to the
emergency room, which he did. The examining physician concluded that C.G. “suffered
concussion and cervical strain.”
On August 25, 2015, Jane Doe filed a petition for a protection order on behalf of C.G.,
seeking protection from John Doe. On August 26, 2015, the magistrate court issued a temporary
ex parte protection order and issued an order for a child protection investigation.
On September 9, 2015, the magistrate court held a hearing on the protection order. The
magistrate judge interviewed C.G. outside of her parents’ presence, but did not discuss the
incident with her. Rather, the magistrate judge inquired as to C.G.’s wishes regarding the
issuance of a protection order and her views as to her future relationship with her father. At the
conclusion of the hearing, the magistrate court found that the preponderance of the evidence
established an immediate and present danger of domestic violence and entered a protection order
prohibiting all contact between John Doe and C.G. for one year.
On September 23, 2015, John Doe filed a motion for reconsideration or in the alternative
a motion to modify the protection order. On October 9, 2015, the magistrate court held a hearing
on John Doe’s motion. The magistrate court denied John Doe’s motion for reconsideration and
modified the protection order to permit unlimited telephone phone contact between John Doe
and C.G. and attendance and participation in a parenting class. On December 2, 2015, the
magistrate court granted John Doe’s motion for permissive appeal to this Court, which this Court
accepted. John Doe then filed a timely notice of appeal.
II. STANDARD OF REVIEW
“This is a permissive appeal under [I.A.R.] 12.1, and as such, the Court reviews the
magistrate judge’s decision without the benefit of a district court appellate decision.” Lamont v.
Lamont, 158 Idaho 353, 356, 347 P.3d 645, 648 (2015) (bracketing in original). “When
reviewing the trial court’s findings of fact, the appellate court will not set aside the findings on
appeal unless they are clearly erroneous such that they are not based upon substantial and
competent evidence.” Nelson v. Nelson, 144 Idaho 710, 713, 170 P.3d 375, 378 (2007). “When
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reviewing the trial court’s conclusions of law, however, this Court exercises free review of the
court’s decision to determine whether the court correctly stated the applicable law, and whether
the legal conclusions are sustained by the facts found.” Id.The duration of a protection order under Idaho Code section 39-6306 is committed to the
sound discretion of the trial court. I.C. 39-6306(1) (the court “may” enter an order “for a period
not to exceed one (1) year”). A trial court does not abuse its discretion “so long as it recognizes
the issue as one of discretion; acts within the outer limits of its discretion and consistently with
the legal standards applicable to the available choices, and reaches its decision through an
exercise of reason.” Roberts v. Roberts, 138 Idaho 401, 403, 64 P.3d 327, 329 (2003).
III. ANALYSIS
John Doe contends that the magistrate court erred when it determined that there was an
“immediate and present danger of domestic violence” warranting issuance of a protection order
for a one year period. We disagree.
A. The magistrate court did not err when it found an “immediate and present danger of
domestic violence” and issued a protection order for a one year period.
The magistrate court determined that there was an immediate and present danger of
domestic violence to C.G. and issued a protection order for a one year period. The magistrate
court reasoned:
The law that governs the issuance of a protection order under a domestic
violence case is found in Title 39, Chapter 63 of the Idaho Code. For a protection
order to issue, the protection order must show by a preponderance of the evidence
that there is an immediate and present danger of domestic violence.
Preponderance of the evidence . . . is an evidentiary standard that says it is
more likely than not. This is not beyond a reasonable doubt. This is the 51 percent
rule, is the Court convinced by a more likely than not that there is an immediate
present danger of domestic violence.
Immediate and present danger includes, but is not limited to, situations in
which the respondent, in this case [John Doe], has recently threatened the
petitioner, in this case the minor child, with bodily harm. Engaged in domestic
violence whether it is reasonable cause to believe bodily harm may result.
Domestic violence is defined as a physical injury, sexual abuse, forced
imprisonment or threat thereof.
Making a decision in this regard is well within the Court’s discretion. And
I appreciate and understand that it is a discretionary call and I am exercising that
discretion. I have viewed and listened to witnesses and judged their credibility
and make my decision based on the information.
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During the hearing on John Doe’s motion for reconsideration, the magistrate court expanded on
its earlier statements:
I believe implicit in my findings that there was an immediate and present
danger of domestic violence to [C.G.] but I will at this time, because I suspect we
will be discussing the appeal, amend my findings to make it explicit that based on
the evidence that was presented on the hearing of September 9th there was
immediate and present danger of domestic violence to [C.G.] by [John Doe] that
warranted the issue of protection order for 12 months.
In this appeal John Doe argues that his use of force was not domestic violence, and there
was no evidence of a threat of future domestic violence. John Doe contends that parents have an
affirmative duty to control and discipline their children. Further, John Doe contends that he had a
right to defend himself against physical injury after C.G. began biting him during the physical
altercation. John Doe claims that his belief that force was necessary in order to get C.G. to stop
biting him was reasonable based on the circumstances, and he did not use more force than was
reasonably necessary. Finally, John Doe contends that “[a] parent may use corporal punishment
as a method of discipline without violating the domestic violence statute as long as the discipline
is proper and reasonable under the circumstances.”
At the outset we acknowledge the legal theories John Doe has presented. We do not
question the application of these theories in civil protection order proceedings. However, a trial
judge is entitled to determine whether the evidence before him or her supports application of
these legal principles when deciding whether a protection order should be issued. The record
reflects that the magistrate court considered and rejected John Doe’s claims.
The magistrate court concluded that John Doe was not under an affirmative duty to
control or discipline C.G., stating: “I view the facts of this case differently and I do not believe
that there was any parental duty on your part, [John Doe], that night to exercise the kind of
discipline that you did.” The record likewise shows the magistrate court specifically considered
and rejected John Doe’s claim that he was acting in self-defense when he struck C.G. Finally, the
magistrate court concluded that the force John Doe used was not reasonable under the
circumstances:
It is, I think, common knowledge that to strike a human being with enough
force to cause a concussion you actually have to hit them hard enough for their
brain to slam into their skull. And so the fact that you hit this child with enough
force to cause a concussion cannot be minimized. And the force to ultimately
engage in actions that resulted in concussing your child, I cannot find are
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proportionate to the behavior, which was to turn a cold shoulder and to swear at
you.
Taking the full record into account, we can find no error by the magistrate court. This
Court is not free to re-weigh the evidence before the magistrate court, and we did not have the
opportunity to observe John Doe when he testified that he repeatedly “smacked” C.G. in the head
without anger, despite having been repeatedly bitten. Rather, the record is clear that the
magistrate considered all of the facts regarding the incident before reaching its decision.
John Doe also asserts that the “immediate and present danger of domestic violence,”
which Idaho Code section 39-6306(1) establishes as a prerequisite to issuance of a protection
order, “contemplates that the court must find a risk of future harm that is in the form of domestic
violence.” John Doe’s assertion is wrong.
Idaho Code section 39-6306(2) provides: “Immediate and present danger under this
section includes, but is not limited to, situations in which the respondent has recently threatened
the petitioner with bodily harm or engaged in domestic violence against the petitioner or where
there is reasonable cause to believe bodily harm may result.” I.C. § 39-6303(2). The plain
language of the statute defines “immediate and present danger of domestic violence” to include
acts of recent domestic violence. For purposes of the Domestic Violence Crime Prevention Act,
which authorizes the issuance of protection orders, “domestic violence” is defined to include
inflicting “physical injury.” I.C. § 39-6303(1). There is no contention that C.G.’s concussion and
cervical strain were not physical injuries or that the incident was not recent. The magistrate
court’s finding of “immediate and present danger of domestic violence” was not erroneous.
B. John Doe has not demonstrated that the magistrate court abused its discretion by
ordering that the protection order would be in effect for one year.
John Doe argues that entering “a protection order for one year with only telephone
contact is an abuse of discretion and is not intended as a modification of child custody.” John
Doe contends that the magistrate court abused its discretion when it interviewed C.G. to
determine C.G.’s wishes concerning her contact with John Doe. John Doe argues that, “[t]he
court in a civil DVPO case should not be in the position of deciding custody contrary to the
analysis in Ellibee v. Ellibee, 121 Idaho 501, 504, 826 P.2d 462, 465 (1992). Civil protection
order cases are expedited hearings that are short in length and are not intended to make child
custody determinations. The father would request a change in law as it relates to this issue.”
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John Doe evidently contends that we should modify our holding in Ellibee that a
magistrate court may enter domestic violence protection orders which temporarily affect a
parent’s child custody or visitation rights. Id. “When there is controlling precedent on questions
of Idaho law the rule of stare decisis dictates that we follow it, unless it is manifestly wrong,
unless it has proven over time to be unjust or unwise, or unless overruling it is necessary to
vindicate plain, obvious principles of law and remedy continued injustice.” Asbury Park, LLC v.
Greenbriar Estate Homeowners’ Ass’n, Inc., 152 Idaho 338, 343, 271 P.3d 1194, 1199 (2012)
(quoting Greenough v. Farm Bureau Mut. Ins. Co. of Idaho, 142 Idaho 589, 592, 130 P.3d 1127,
1130 (2006)). John Doe has not identified the manner in which our decision in Ellibee is
manifestly wrong, unjust or unwise, or otherwise contrary to plain and obvious principles of law.
“This Court will not consider an argument not supported by cogent argument or authority.” City
of Meridian v. Petra Inc., 154 Idaho 425, 450, 299 P.3d 232, 257 (2013).
John Doe has not demonstrated that the magistrate court failed to recognize that the
matter was committed to its discretion, acted outside the boundaries of its discretion, failed to act
in accordance with applicable legal standards, or failed to exercise reason in reaching its
decision.
C. We do not reach John Doe’s claim that this case should have been filed under the Child
Protective Act and not the Domestic Violence Protection Act because it is not supported
by argument or authority.
John Doe contends that: “A case involving an allegation that a parent has caused abuse to
their child should be filed under the Child Protective Act rather than the Domestic Violence
Protection Act.” John Doe reasons that the magistrate court entered an Order for Child Protection
Investigation and the “Dept. of Health and Welfare did not pursue the filing of a child protection
action and the case was closed.” John Doe concludes: “It would seem that this type of case when
there is a determination that a child has been abused would be under the exclusive jurisdiction in
the civil court as a child protection case rather than as domestic violence case.”
“We will not consider assignments of error not supported by argument and authority in
the opening brief.” Jorgensen v. Coppedge, 145 Idaho 524, 528, 181 P.3d 450, 454 (2008)
(quoting Hogg v. Wolske, 142 Idaho 549, 559, 130 P.3d 1087, 1097 (2006)). Because John Doe
has not provided any supporting argument or authority, we do not further address this issue.
D. John Doe’s claim that his fundamental rights as a parent have been violated by entry of
a protection order is not properly before this Court.
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For the first time in these proceedings, John Doe’s reply brief advances a claim that “his
fundamental rights as a parent have been violated by the entry of the protection order.” We will
not consider this claim for two reasons. First, the claim was raised for the first time on appeal.
“The longstanding rule of this Court is that we will not consider issues that are raised for the first
time on appeal.” Gordon v. Hedrick, 159 Idaho 604, 612, 364 P.3d 951, 959 (2015) (quoting
Row v. State, 135 Idaho 573, 580, 21 P.3d 895, 902 (2001)). Second, the claim was raised for the
first time in John Doe’s reply brief.
In order to be considered by this Court, the appellant is required to identify
legal issues and provide authorities supporting the arguments in the opening brief.
A reviewing court looks to the initial brief on appeal for the issues presented on
appeal. Consequently, this Court will not consider arguments raised for the first
time in the appellant’s reply brief.
Myers v. Workmen’s Auto Ins. Co., 140 Idaho 495, 508, 95 P.3d 977, 990 (2004) (internal
citations and quotations omitted).
IV. CONCLUSION
We affirm the magistrate court’s modified protection order and award costs to Jane Doe.
Chief Justice J. JONES, Justice BURDICK and Justice Pro Tem SCHROEDER,
CONCUR.
Justice W. JONES CONCURS in the result only.
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