Clair v. Clair

IN THE SUPR.EME COTJRT OF'TIIE STATE OT'IDAHO
Docket No.391gg
CHARLES MALCOM CLAI& JR.,
)
) Boise, June 2012 Term
Plaintiff-Respondent,
)
) 2012 Opinion No. ll0
)
) Filed: July 6,2012
TRACYJO CLAI&
)
) Stephen W. Kenyon, Clerk
Defendant-Appellant.
)
)
Appeal from the District court of the sixth Judicial Disnid, State of Idaho,
Bannock County. Hon. Rudolph Enrico Carnaroli, Magistrate
Judge.
Magistrate Court decision in divorce action and child
custody, affirmed.
Nick L. Nielson, Pocatello, argued for appellant.
Belzer Law Office, pocatello, for respondent. Frederick
F. Belzer argued.
Myers Law O{fice, pLLC, pocatello, for respondent.
BURDICK, Chief Justice
This case concerns the divorce action between Appelrant
Tracy Jo clair (Tracy) and
Respondent charres M. crair, Jr. (charles). At
issue is the magishate court,s decision finding
in
the best interest of Tracy's and charles's child
to reside primarily in pocatello, Idaho. The
custody plan contained altemative options depending
on whether and when Tracy would rerocate
back to the Pocatelo area after moving to Ery,
Nevad4 fotowing the coupre,s separation.
Additionally, we address an issue conceming the
inhoduction of the custody eva.ruator,s
opinions regarding an acceptable custody arrangement.
Based upon the facts of this case we
affirm the magistrate court's decision.
I. T'ACTUAL AND PROCEDURAL BACKGROUND
Charles and Tracy were married on November
lg, lgg3, in Ely, Nevada. C.C., the
parties' only natwar ch'd, was bom in 2007,
in Reno, Nevada. In June 2010, the parties
separated near the time that charres took a
new job as a physician in Moscow, Idaho,
after
serving his residency in Pocatello, Idaho, at the Family Practice Residency Department
at ldaho
State University. upon separation, Tracy and c.c. moved to Ely, Nevad4 to live
with her
parents.
charles filed a complaint for divorce on July 19, 2010, in Barurock co'nty, rdaho,
claiming irreconcilable differences. Tracy frled a complaint for divorce in Latah
County, Idaho,
on July 22,2010, citing irreconcilable differences pursuant to I.c. g 32-603(s). The parties
stipulated to the consolidation of the complaints into the case in Bannock County
and ageed to
heat Tracy's complaint as a counterclaim. During this period, the magistrate
court filed an order
prohibiting the parties from removing the child from the state without
leave of the court. This
order was not observed by Tracy, nor sought to be enforced by charles. on
January rg,20lr,
the magistrate court agreed to the parties' stipulation and filed an order allowing
Linwood
Vereen, Ph.D. to perform a custody evaluation for tle determination
of the best custody
arrangement. Four months later the magishate court set the matter for
trial, and in June 2011,
granted the parties a decree of legal separation. In the time
between the initial filings and the
date of trial, the magistrate court agreed to several stipulations
between the parties for monthly
custody arrangements. The trial took place June 1-3, and July 2l-22,2011.
The magistrate court
filed its Findings of Fact conclusions of Law and order on August
16, 20[. The magistrate
judge found that Tracy has a B.s. in Engrish fiom
weber state university and a B.s. in English
Education from Utah valley State college, with certifications to
teach, and teaching experience,
in both Idaho and Nevada. Tracy's teaching experience included
a two-year, full-time position at
Pocatello High school. Next, the court found that Tracy had
appried for teaching positions in
Nevad4 and before the trial, received an offer from a school in
Reno that she intended to accept.
The magistrate judge arso found that Tracy intended to remain
a resident of Nevada and have
c'c' reside primarily with her. Finany, the court found that after the separation, Tracy
had
"motivational issues" for several months; that during
separation, she had..limited the father,s
access to the child and . . - made arranging visits between
father and son more difficult than it
should have been"; and that in Tracy's opinion, c.c. suffered from separation anxiety and should
not be away from her for visits as long as the father had proposed.
As for charres, the magistrate
court found that he had purchased a home in pocatello, three blocks
from the public school c.c.
would begin to attend; that he had paid the majority of costs
for support, debts, and obrigations
during the separation; and that he had proposed to pay asum
for ch d support larger than what
was required of him if Tracy would relocate to Pocatello and share custody with him on a weekly
basis-a proposal that was rejected by Tracy. The court firther stated:
The father has sacrificed financially to be able to spend time with his son
and to be a part of his son's life. The father gave up a job in Moscow, Idaho to
move closer to [C.C.]. He gave up a $40,000.00 bonus to move to Moscow and
take the position he had, $30,000.00 of which he and the mother received and
spent and which he must repay. He gave up student loan debt forgiveness that
would have erased approximately $223,000.00 in student loan debt over the next
eight years. The Moscow position was in an underserved rural area and his
position in Pocatello is not. He will not receive student loan debt forgiveness in
Pocatello. He gave up an annual salary of $225,000.00 to take a faculty position
with Idaho State University for an annual salary of $ I 56,000.00.
The counselor that performed the custody evaluation for the parties, Linwood Vereen,
Ph.D., LPC, testified at trial. His evaluation was based on interviews with the parents, parent-
child observations, home visits, and discussions with contacts provided by the parties. Dr.
Vereen testified that both parents were effective and had demonstrated a loving relationship with
c.c. Dr. Vereen's testimony regarding recommendations for parenting time and the best
interests of the child were not permitted into evidence pursuant to I.R.E. 702 for lack of
foundation. The parties did not stipulate that he could offer expert opinion testimony at trial.
The magistrate court divided the community property and debts pursuant to an agreement
between the parties and held that it was in the best interests of the child to remain in Idaho under
a shared custody arrangement. Based upon a finding that Tracy did not prove by a
preponderance of the evidence that it was in C.C.'s best interest to move to Nevada with her. the
magistrate court created a custody arrangement with alternative plans depending on Tracy's
decision whether she would relocate to the pocatello area. First, if rracy rehrmed to the
Pocatello area within 120 days of the court's order, the custody would be shared on a 65/j5o/o
basis in favor of rracy, with charles paying $1,016 in monthly child support. Next, if Tracy
retumed after four months, but within a year, the physical custody would be evenly split between
the parties, and charles would be required to pay $677 per month in child support. Finally, if
Tracy remained in Nevad4 a custody agreement would be structured around c.c. staying with
his father during the school year and with his mother during the summer months, with the mother
paying a child support payment of $244 per month. A judgment and decree of divorce was filed
on August 16,2011, reflecting these provisions for the legal and physical custody.
The parties had conflicting interpretations of the court's order, and subsequent to a
hearing, the magistrate entered amended filings on August 25, 2011, making clear that the
custody option fot a 65l35Vo split would begin at the time of Tracy's arrival in Pocatello. Tracy
filed a motion to stay portions of the amended judgmen! seeking to allow c.c. to stay with her
until she could find work in the Pocatello area and save up enough money to relocate; she also
asked that the radius for relocating be extended beyond Pocatello to Twin Falls. Subsequent to a
posdudgment hearing held at the behest of Tracy, the magishate court filed a second amended
order and judgment. The magistrate court addressed some of the mother's previously stated
concerns including a clerical enor and changing all references to the child from the child's first
and last name to *c.c." The magistrate court also amended the dates to allow Tracy an
additional month to retum to Pocatello fot the 65/35%o custody split as she had already leased a
home in Reno, and the winter break at the school from which she accepted a teaching position
did not begin until the day after the initid 120 day deadline. Tracy timely appealed from the
seconded amended judgment to the Supreme Court.
II. STAI\DARD OFREVIEW
Child custody determinations made by a magistrate court are reviewed by this Court
under an abuse of discretion standard. schneider v. schneider, l5l Idatro 415,420,25g p.3d
350" 355 (2011) (citing Hoskinsonv. Hoskinson, 139 Idaho 448,454,80 p.3d 1049, 1055
(2003). Under this standard of review, the Court asks first whether the magistrate court
correctly perceived the custody issue as one of discretion; then whether the magistrate court
acted within the outer boundaries of its discretion and consistently with the legal standards
applicable to the specific choices available to the court; and frnally, whether the magistrate court
reached its decision by an exercise of reason. schultz v. schultz, 145 Idaho g59, g6l-62, lg7
P -3d, 1234, 1236-37 (2008). An abuse of discretion is found when the magistrate court's
"findings are clearly erroneous such that the court's findings are not based on substantial
and
competent evidence." schneider, l5l Idaho at 420,25g p.3d at 355. ln a decision regarding
a
custody award or modification, "[a]n 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. Nelson v. Nelson, l44Idaho 710, 713, 170 p.3d 375,
378 (2007).
For issues involving the introduction of evidence, this Court also reviews the trial court's
decision under an abuse of discretion standard. stare v. Perry, 139 Idaho s20, s2l, gl p.3d
1230, 1231 (2003). The trial court has broad discretion to admit or exclude evidence, and to
determine whether a witness is qualified as an experr. Id. at 521-22,81 p.3d at 1231-32. "Enor
may not be predicated upon a ruling which admits or excludes evidence ur ess the ruling is a
manifest abuse of the trial court's discretion and a substantial right of the party is affected."
Burgess v. Salmon River Canal Co., 127 ldaho 565,574,903 p.2d 730,739 (lgg1\.
[I. ANALYSIS
A, The magistrate court's order of child custody was not an abuse of discretion.
The first issue that we address regards the magistrate court's order concluding that C.C.'s
primary residence should be in Pocatello, and the custody arrangement based on that conclusion.
Tracy argues that the magistrate court created a custody schedule that promoted estrangement
between C.C. and his mother and deprived her child of the solid bond that was formed berween
the two during the first years of C.C.'s life. Charles argues that the magistrate court did not
abuse its discretion because it made a decision based on the best interest of the child. We find
that the magistrate court's order was not an abuse of its discretion.
For determinations of custody, a magistrate court is required to base its decision on the
best interesrs of the child. schultz, 145 Idaho at 962, lg7 p.jd at 1237 (.,the best interest of the
child is of paramount importance in custody determinations"). Idaho code section 32-717(l)(a)-
(g) sets out a non-exhaustive list of relevant factors that a magistrate court may consider. This
list includes the wishes of the child's parents as to custody; the child's wishes for custody; the
interaction and interrelationship between the child and parents, and siblings if applicable; the
child's adjustment to his or her community; the character and circumstances of all involved; the
need to promote continuity and stability for the child; and any instance of domestic violence.l
I.C. $ 32-717(l)(a)'(g). "This list offactors is not exhaustive or mandatory and courts are free to
consider other factors that may be relevant." Bartosz v. Jones, l46ldaho 449, 4s4. 1g7 p.3d,
310' 315 (2008). Additionally, the preference for the mother as custodian over the father of a
child of'tender years" is considered only where all other considerations are found to be equal.
Moye v. Move, 102 Idaho 170, 172-73, 627 p.zd,799,801-02 (1981). The magistrate oourt
considered each one ofthe factors set out in r.c. S 32-717(l) with findings and conclusions for
' No allegations ofdomestic violence between the parties are present in this case.
each listed factor. The magishate court concluded that it would be in the best interest of the
child to remain in Idaho with C.C.'s parents sharing custody. The magistrate court reasoned that
the temporary living anangements that followed separation were not in the child's best interest,
and that it was the court's responsibility, not the parents, to examine where c.c. should live in
the future.
Finding that the mother did not prove by a preponderance of the evidence that it was in
C.C.'s best interest to move to Reno, the court concluded that it was in the best interest of the
child to remain in the Pocatello area where the father relocated for the benefit of C.C. As to the
parents' wishes, the court concluded that:
[T]he wishes of the parents are inconsistent, are not supported by the evidence
and . . . their wishes and proposals do not promote the best interests of the child.
The parents' wishes and proposals for custody do not really assist the court in
determining the child's best interests other than the fact that the father is
apparently willing to share custody with the mother if she remains in Idaho.
Shared custody in Pocatello would be the best choice for C.C.
As for the child's wishes, the magistrate court found that the child was too young to make a clear
indication ofa custodial preference to assist the court. The rnagistrate court concluded that the
interrelationship between the child and parents, and the child's adjustment to home, school, and
community favored shared custody in Idaho because a move to Reno with Tracy would not have
a positive effect on C.C.'s relationship wilh Charles. Also, the magistrate court reasoned that the
proposed move fiom Ely to Reno by Tracy would be to a community unknown to c.c.,
whereas,
C.C. had spent most of his life in Pocatello, and was already familiar with Charles'new home
and the child care providers in Pocatello. C.C. would be unfamiliar with the sgnomdings if
Tracy moved to Reno. The conclusions for the promotion of continuity and stability in c.c.,s
life also focused on Tracy relocating to Reno. The magistrate court reasoned that custody in
Pocatello would promote more continuity and stability in C.C.'s life because of familiariw
with
the area-a "stable known environment.',
The factor that gave the magistnte court the most concem was the character of the parties
and circumstances surrounding the case. Finding that Tracy had demonstrated a tendency to
withhold access to their child and that her emotional response to the separation hindered her
ability to think and act as a shared-custodial parent, the magistrate court stated a hope that
Tracy
could focus on the emotional needs ofthe child, and not her own, to allow for a successful
shared
custody arrangement. The court concluded that both parents were very capable of being
loving
parents for C.C. and that the analysis of the best interests of the child indicated that the ideal
arrangement would be living in Pocatello with both parents nearby to share an overnight custody
rotation. Custodial alternatives were constructed in hopes of relieving the parties from further
court hearings in the futwe in the event that Tracy did not immediately retum to pocatello.
The magistrate cout's order shows that it considered all relevant evidence in the record
and applied relevant factors to make a decision based on the best interests of C.C. The order
does not suggest that the magistrate court was separating the child from Tracy or was trying to
damage the relationship and bond between the two as Tracy argues. The magistmte court's order
illustrates that the magistrate judge was trying to make the best decision available to ensure a
significant relationship continued to exist between c.c. and rracy, as well as charles. Tracy's
argunents do not go beyond analysis of the total amormt of days that each parent would receive
with C.C. under the altemative plans and do not contain any citation to authority that would
require the magistrate court to divide the time evenly (or to the benefit of the mother) regardless
of the hardship to the child. As we have often stated, a shared physical custody has no
predetermined visitation ratio but is driven by statutory analysis, best interests of the child,
and
finally the court's reasoned discretion. Idaho code g 32-7178(2); King v. King, l3z Idaho 43g,
445. 50 P.3d 453 .460 (2002).
According to the magistrate judge, the best option was to have the child reside in
Pocatello with both parents living in the are4 but he also understood that this option may not
be
available immediately and, therefore, specified altemative arrangements. For this court to find
that an abuse of discretion has occurred in a custody award, the record must be void of
evidence
to support the magistrate court's conclusion that the custody award served the best interests
of
thechild. schultz, l45Idahoat863, l87p.3dat 1238 (citingMoyev. Moye,lo2 Idaho 170.172.
627 P.2d'799,801(1981)). "Under ldaho law, it is presumed that a continuing relationship
with
both parents is in the child's best interest." Id. at g65, lg7 p.3d at 1240. The record and
the
magistrate court's order reflect that the custody flrangement was created with the
child,s best
interests in mind, attempting to achieve a continuing relationship with both parents.
The
magistrate court reflected on each of the relevant factors listed in I.C. 32-717(l)
$ in its order
and did not over-emphasize any one factor. see id. at g63,lg7 p.3d at 123g. The custodial
a,Tangement was within the magistrate court's discretion and was consistent
with applicable
legal standards. Also' the facts and legal analysis in the magistrate court's order
indicates that
the decision was reached through an exercise of reaso& and there
was sufficient evidence to
support the magistrate court's conclusion. Therefore, we find that
the magistrate court did not
abuse its discretion by ordering shared child custody based
on c.c. residing in pocatello.
B. The magistrate court's custody determination did not infringe on Tracy,s liberty
interests to choose where to live, work, and raise her son.
Next' we address Tracy's argument regarding whether the magistrate court's
decision
infringed upon her liberty intercsts. Tracy argues that the magisnate
court abused its discretion
when it degraded Tracy's choice of moving to Reno and that it was
without authority to force
Tracy to live within 25 miles of Charles if she wished to maintain
frequent contact with C.C.
charles argues that Tracy's rights were not violated because the
decision was based on the best
child. We find that the magistrate court's determination that c.C. should
interests of their
live
primarily in Pocatello was within its discretion and did not
infringe upon Tracy,s liberty
interests.
As stated above, the best interests of a child are the driving force
behind a custodial
determination by a magistrate court. In a divorce action where
the custody of children isatissue,
a court does not have the authority to order where the parents
shall live. Albright
v. Altbright,
147 Idaho 752,754' 2r5 p.3d 472, 474 (2009). However,
the court is given the authority to
determine with which parent physicar custody will be granted.
Id. at755,215 p.3d at475. rf a
unilateral move out of state by one parent with the child
is a factor in a custody case, the
relocating parent can be awarded physicar custody only
where he or she proves by a
preponderance of the evidence that the move is in
the child,s best interests. Danti v. Danri, 146
rdaho 929,935,204 p.3d 1r40, 1146
e}og). while a lower court must address a unilateral
move in its findings, it is not required to grant physical custody
to either parent based purery on
that move' Navarro v. yonkers, 144 Idaho gg2, ggg, 173 p.3d
rr4r, rr47 (2007). Further,
because of the presumption reflected in I.c.
$ 32-7178 favoring the active participation of both
parents, "it is presumed that it is not in the child's
best interests to pennit one parent to
unilaterally remove a child from the community where the parents
and child resided when such
move prevents the other parent from having frequent
and continuing contact with the chird.,, 1d.
at 889, 173 P.3d at 1 148 (Eismann, C.J., specially concurring).
while Tracy concedes that the magishate court did not expressly
order her to live in
Pocatello, she argues that in effect the magistrate court's
order did force her to live within 25
miles of Pocatelro. She argues that this case is similar to A bright v. Allbright, where the court
held that the magistrate court had no authority to order the mother to reside in a
specific
geographical location. 147 Idaho at 756, 2ls p.3d at 476. Although Allbright
does include
explicit language that states I.C. S 32-7l7(l) "does not authorize a court to decide the geographic
area in which the parent or parents of the child shall live," it does not supersede the magistrate
court's discretion in the best interest of the child to "determine with which parent
the child will
reside." 1d at 754-55, 2t5 P.id at 474-7 5.
The magistrate cout did not order Tracy to retum to the Pocatello area
or mandate that
she live there-it found that in was in the best interests of the child to reside
in pocatello and
structured the custody arrangement around that finding. Additionally, the magistrate
court found
that Tracy "did not prove by a preponderance ofthe evidence that it
[was in] C.C.'s best interests
to move from Idaho with her." The provisions for the legal and physicar custody
of c.c.
included options for Tracy to remain in Nevada or retum to the pocatello area;
it did not order
Tracy to retum to Pocatello. The custody agreement gave her the opportunity
to have ..frequent
and continuing contact" with her child, and the magistrate court left
to her the decision of how
frequent she desired that contact to be. gee Navarro, 144 Idaho at gg9,
173 p.3d at ll4g
(Eismann, c.J., specially concurring). Her arguments do not cite to
any authority that wourd
require this Court to find that the magistrate court's discretionary decision
violated her right to
live and work in Nevada. The magistrate court's custody arrangement explicitly
inctuded an
alternative section contemplating that she may choose to stay in Nevada.
Also, Tracy has not shown that the magishate court's findings and conclusions
regarding
the factors in I.c. $ 32-7r7(r) for custody were used to punish rracy or reward
charles as Tracy
contends. see Kalousek v. Kalousek, TT rdaho 433,439,293p.2dgs3,gsl (1956)
(,.cusrody of
children in divorce cases must always be determined upon the basis
of the welfare of the
children. It cannot be used as a means of punishment or reward of either parent.")
As evidence
of such punishment, Tracy cites to one phrase used by the magistrate court: .,Twelve
months
gives [Tracy] time to decide if living in Reno is more important to her than being a regurar
presence in [C.C.'s] life in Pocatello." That phrase merely stated the obvious and was
based
upon this court's previous case law. see, e.g., Barrosz v. Jones,
146 rdaho 44g, 464, rg7 p.3d,
310' 325 (2008) (Eismann, c.J., concurring) ("A parent can decide
that other things in the
parent's life are more important than maintaining a close relationship
with the child, and move
away. The court cannot prevent a parent from doing so.,,)
Any suggestion of punishment can be quelled by the magistrate court's reasoning for the
altemative plans. Although rracy would not be rewarded with as high of a percentage of
custody if she retumed after the initial 120 days following the court's order than if she relocated
to Pocatello before that date, the magistrate court provides reasoning that was based on the
child's best interests. The magistrate court cites the difficulty that the transition to an equal
shared custody arangement, after an extended period of time, would impose on the child and
stresses the probable disruption to the continuity and stability of the child's life if the mother
chose to retum at a later date. "If the mother does not relocate to Pocatello within a year of the
entry ofthe decree of divorce, it is unfair to C.C. to have any switch in the custody schedule that
ignores the father's efforts to be the primary care giver and the routine that has been established
for C.C. here in Pocatello absent a showing ofa substantial, material change in circumstances."
Granted, the separation was not easy for Tracy, but this does not mean that the magistrate
court is required to consider Tracy's interests above the best interests of C.C. As discussed
above, the magistrate court correctly based its decision for custody on the child's best inrerests.
This includes the magistrate court's analysis of the possibility of C.C.'s relocation to Reno with
Tracy-it did not abuse its discretion by finding that Tracy had not met her burden of showing
that relocation was in C.C.'s best interests. Since Tracy failed to meet her burden and has not
shown how her liberty interests outweigh C.C.'s best interests, we find that the magistrate court's
custody arrangement based on C.C. residing in Pocatello did not violate any protected liberty
interests of the mother.
c. The magistrate court did not abuse its discretion by disallowing the opinions of Dr,
vereen regarding recommendations for parenting time pursuaot to r.ri.n. zoz.
Finally, we address the issue regarding the magistrate court,s decision to limit the
custody evaluator's testimony. Tracy argues that the magistrate court demanded criteria tbr
Dr.
Vereen's expert opinion testimony that has not yet been recognized by Idaho as necessary
for the
admissibility ofa custody determination, because Idaho has not ofyet required scientific data for
the admission of the ultimate opinions regarding custody arrangements. charles argues that
Tracy failed to preserve her objection to the doctor's recommended custody schedule because
she did not provide an offer ofproof regarding the content of tlre excluded report and testimony.
In this case, we find that the magistrate court did not abuse its discretion when it limited
some of
Dr. vereen's opinion testimony regarding custodial anangements for a lack of foundation.
l0
Rule 702 of the Idaho Rules of Evidence states that "[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testifo thereto in the form ofan opinion or otherwise."
The test for determining whether a witness is qualified as an expert is 'not rigid'
and can be found in Idaho Rule of Evidenc e 702. ldaho Rule of Evidence 702
states:
Ifscientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testifu thereto in the form
ofan opinion or otherwise.
A qualified expert is one who possesses .knowledge, skill, experience,
training, or education.' Formal training is not necessary, but practical experience
or special knowledge must be shown to bring a witness within the category of an
expert. The proponent of the testimony must lay foundational evidence showins
that the individual is qualified as an expert on the topic of his or her testimony.
Ileelcs v. E. Idaho Health servs., 143 Idaho 934,837,153 p.3d 1180, 1183 (2007) (intemal
citations omitted).
Upon objection by counsel, the magistrate court mled from the bench that Dr. Vereen
was unable to testiry as an expert on a specific custody schedule or custody split, but allowed
his
expert testimony regarding child development and attachment. This ruling was based
on a lack
of foundation. see swallow v. Emergency Med. of ldaho, p.A.,l3g ldaho 5g9, 593, 67 p.3d
68,
72 Q003) ("[T]he trial court has the discretion to determine whether a proper foundation
has
been laid for the admission of expert testimony . . . .',)
The foundation for some opinion testimony at this point is lacking in my view
because I don't think we quite got there to whether there are or are ,iot
"o--onty
accepted criteria or standards in the co rnseling field on how to conduct a
child
custody evaluation whether nationally or locally. our state Legislature and our
Supreme Court has not gone along yet with the Association- of family and
conciliation courts to adopt the model standards of practice. I don't know at this
juncture what the American psychological Association or any
other national
association say the guiderines for the cor uct of child custody
evaluations are or
what they should be in comparison to what Dr. Vereen has done here. So,
I don,t
know that w€ can get to his opinions yet based on what we have oi record
conceming the ultimate issues of percentages of custody time or what,s
in
[C.C.'s] best interests.
l1
Dr. Vereen certainly has education, experience and training that this Court does
not have in the areas of child development and attachment, particularly in the area
of children age zero to six. So there may be some opinions he can render and
some testimony he can render conceming tC.C.l in those areas that don't
necessarily reach what's the right mix of two weeks versus, you know, how many
weeks with one parent or the other and what the exchanges ought to be. They
might not reach an ultimate opinion on what's in the best interests of [C.C.], what
custody arrangement, but he can certainly give me, I think, some opinion
evidence conceming the issues of attachment and child development within the
context of the evaluation that he's done. So, I'm not going to say throw the baby
out with the bath water on this one. It's just getting to what he feels is best in
terms of number of weeks here and there or primarily with who or whom.
Okay, we need some more foundation if you want to get to the areas where you
need to go or where you want to go or to get the [custodial evaluationj in
unredacted. So, I'm going to sustain the objection on foundation to get there. I
will accept Dr. vereen as an expert who has, based on what you've set forth so
far, in the area of child development and attachment in children ages zero to six
and I think he may have some information both factual and opinion wise that
might help me in making a decision of what's right for [C.C.].
The magistrate court expounded further on the subject when asked for clarification.
Just so we're clear. It's not that I don't believe that Dr. Vereen has the
specialized knowledge . . . that supports rendering an opinion on the ultimate
issue. He has certainly geater specialized knowledge and training in the areas
that I've highlighted, which you actually highlighted in laying the foundation to
try and get what you want in . and that's you want the firll [custodial
evaluationl and the opinion on the ultimate issue. what I'm saying is thit to meet
the test of our foundational rules, we have to, I think the field o1 child custodv
evaluations has to either get us an evidentiary rule changed to relax the standards
that are in the Rule 700 series or you get a few bites out of the apple, but you
don't get the ultimate issue. . . . [T]he expert opinions that I've received in-the
past . . . have come in without objection. This is the day that we're getting the
objection to foundation and I,m struggling with it as are you, but ithink- Or.
vereen [can testiff], if in [c.c.'s] case he can provide some testimony based on
time spent with your two clients and with tc.c.l to talk about attachment or child
development issues with [c.c.] and what he foresees in the future as problems or
no problems based upon the literature that's generally accepted. you can get so
far into it, but it's not that important for me to know whai schedule Dr. vireen
thin[k]s will work. It's not important because there's really no standards out there
in the field, you know, that he can follow some formula io say two weeks in or
two weeks in one week out is superior to one or the other because there,s no
empirical studies to back those kind ofjudgment calls being made up. That I don,t
have unless . . . there's been something that's come out in the field'Jin the last ten
monthsl that says, 'This is the formura we follow to come up with the
recommendations on custody sharing time.' I don't know that it's there because
you haven't drawn that out of this witness to say, 'The freld says in this situation
12
with these set of facts, the child should be more with mom or more with dad.'
Attachment's going to be a big issue in my mind, just on what little I know of
attachment and what I've just leamed just now with one parent living way over in
Ely or Reno, Nevada and another here in pocatello. Ifyou want [to] explore those
issues, I thin[k] you have enough foundation to go into attachment or bonding . . .
but the number of weeks in one household or the other or whose househo-id is
better, I don't think there had been forurdation laid to get to those kind ofopinions
yet and I am not going to assume you can't lay it, but at this point, it's not there.
It might be the nature of the beast that we're talking about. How far can you go
with opinion testimony in this particular circumstance in these family dynamilcs
where parents are breaking up and the child has to live in two homes?
[w]e have been going through his qualifications as an expert and we haven't even
gotten to the foundation for any opinions in terms of what he has done with
this
family. we've been outside the area. we've touched on it a little bit. He visited
Mrs. clair and the child at home, the length of time that he was there, what was
done, etc. etc. I mean, the factual foundation is not there to get to an opinion yet
expert testimony, I'm not going
il i;J tT#:,il1::#,X'it"l1
have to lay the roundation onvhatit tr
r:t'jff"I?i'*T"?flfl':S,j;
ald if you ask a question, .Well, how many weeks should the child spend ii
yhigh hom9,' he'll get an opportunity to object and I'lr make a ruling at that time,
but I need factual foundation before I ca go anywhere. I'm satisfied Dr. Vereen
is an expert witness in child development whose opinions can assist me as a triei
of fact in specialized knowledge that I don't have.
During Dr. Vereen's testimony, the magistrate court sustained objections from Charles's
aflomey
to the questions regarding shared custody arrangements. Tracy's attomey
did not make any offer
of proof regarding what Dr. vereen may have said, or what was in the custody
report regarding
Dr. vereen's opinion on the appropriate custody split. Additionally, no
offer of proof was made
after the magistrate court suggested that counsel may want to do so should
objections arise.
charles argues on appeal that Tracy failed to preserve this issue on appeal
because her
counsel failed to make an offer of proof regarding Dr. Vereen's opinions
on the custody sprit
between the parties. charles cites to Rule 103(a)(2)2 of the Idaho Rules
of Evidence, ,Srare v.
'Rule 103(a) ofthe Idaho Rules ofEvidence states:
(a) Eltect of Erroneous Ruring. may not be predicated upon a ruling which admits or
.Error
excludes evidence unless a substantial right oithe party is affected,
ind
l3
Young, 136 Idaho 113, 120,29p.3d949,9s6 (2001), and Morris v. Thomson,l30
Idaho l3g.
143,937 P.2d 12t2, l2r7 (1997). charles is conect that Rule r03(a)(2), young,
and Morris
stand for the requirement that absent an offer ofproof the claim of error, based on the exclusion
of evidence by trial court cannot be preserved on appeal. Howeveq many decisions stating the
a
purpose of the rule when it comes to an appeal draw attention
to the importance of making a
record for the appeal. Kuhn v. coldwell Banker Landmarh Inc.,l50
Idaho 240,251,245 p.3d,
992, 1003 (2010) ('The purpose of this rule is to presewe a record for
appeal . . . ],); State v.
Joslin, 145 Idaho 75, 82, 175 p.3d764,771
e0o7) (',The purpose of an offer ofproof is ro make
a record either for appear or to enable the court to rule on the admissibility
of proffered
evidence'")' The distinction is highlighted here because in the present case
tlre record contains
the information that was excluded by the magistrate court.
Dr. vereen's custody evaluation contained a section titled ..Recommendations.,,
The
custody evaluation was admitted by the magistrate court,
but portion a the of
"Recommendations" section was redacted. The redacted section
included Dr. vereen,s opinion
of the custody plan he envisioned for the parties. charles's attomey quoted
the language
redacted from the custody evaluation in an argument
before the magistrate court challenging the
bias of Dr. Vereen. Charles's attorney read the following
language from the report to the
magistrate court:
The parties should institute a parenting time plan that
has the child in the care of
Ms. clair for four consecutive weets roilr wea by 2.5 consecutive
clair. This arrangement would allow the minoi child consistent
*"t, *itt vi.
*r"r, ,o uoiii
increase the opportunity for continuity and stability-
eveloping a parenting time arrangement that allows
liberal time with the child.
Therefore, transitioning to a more shared model of parenting time should be
(l) objection' In case the ruling is one admifting evidence, a timery
objection or motion to
the;pecifi" grouna Jr ouJ"lfun, iiir,"
:::::j?TT
apparent from .",111:..^d,.starins
tie context; or "p"in"
ground was not
(2) ofier of Proof. In case the ruling is one
excruding evidence, the substance of the evidence
to the court by offer or was oppu."nt Forn tt" *itrrin which questions
;::"Xf;01"" "iii"*t
l+
Also, there was no objection when Tracy testified that she believed the
best custody arrangement
for C'c' would be as Dr. Vereen had recommended in the redacted portion
of the custodial
evaluation-a custody split that proposed four weeks with rracy and then
two and a half weeks
with charles. Additionally, charles admitted in his Respondent's Brief that
Dr. vereen,s
custodial recommendations "came before the court during the trial.,,
Here, there is a sufficient record for appear although rracy fa
ed to provide an offer of
proof regarding what Dr. vereen's opinions on a custodial
split would have been. rn young, this
cou( ruled that an issue regarding the relevance of excluded evidence was
not preserved for
appeal because of the absence ofan ofer ofproof"or anything
in the record showing,, rerevance.
136 Idaho at 120' 29 P.3d at 956. Here, there is something
in the record that shows exactry what
had been excluded and that the magistrate court rmderstood
what it was excluding. Thus, we
find that there is a sufficient record to review the merits of this
issue.
magistrate court's discretion.
Essentially, the issue on appeal is whether it was an abuse
of discretion by the magistrate
court to rule during hial that Tracy's counsel had failed to
lay the required foundation to allow
Dr' vereen to present expert opinion testimony regarding the
custodial arrangement between the
parties' The magistrate court ruled that counsel had failed
to provide appropriate foundation
regarding any testimony related to the issue ofthe custodial
split between the parents. we find
that with the facts surrounding this particular decision involving
the foundation for a custody
evaluator's opinion testimony, the exclusion of testimony
was within the magistrate court,s
discretion.
The trial court has discretion to decide the admissibility
of expert testimony, and on
appeal this decision w l not be overtumed absent
an abuse of that discretion. Jones v.
crowforth, 147 rdaho rr,2r,20s p.3d 660, 670 (zo0g). Exp€rt
witness testimony is admissible
when the expert is qualified as an expert and the
testimony wilr assist the trier of fact by aiding
the understanding of evidence or determining a fact that
is at issue. Ileer127 Idaho 565, s74,903 p.2d,730,739 (lgg5). The magistrate
court's decision was within the appropriate boundary ofdiscretion afforded to a trial court ruling
on an issue involving the introduction of evidence. The magistrate court recogrized that I.R.E.
702 required that Dr. Vereen show he had suitable experience with this family and these
circumstances to be able to share opinion testimony. As to Tracy's contentions that such
foundation would be impossible, the magistrate court,s ruling itself mles out any such
impossibility. The magistrate court unambiguously stated that proper foundation would be
present if Dr. Vereen could point to specific studies in the field that would guide
his opinion on
the limited issue of time with each parent. The magistrate court's ruling did not make such
a
foundation impossible, it just made a reasoned decision that the formdation was not present
in
this case because Dr. Vereen could not properly show that the opinion on the limited issue
of
Percentage of parental time was supported by any "specialized knowledge" that would assist the
magistrate court. Therefore, we find in this specific circumstance, that the magistrate
court did
not abuse its discretion by excluding expert opinion testimony regarding custodial splits.
D. Neither party is entitled to an award of attorney fees on appeal.
Tracy argues that she is entitled to an award of attorney fees on appear pursuant to
LC. g
32-704. Charles argues that he is entitled to an award pursuant to I.C. IZ_121.
S
As an argument on appeal for her entitlement to attomey fees, Tracy included an
argument section that states "Tracy clair has been required to appeal the magishate court's
decision and therefore request[s] attomey fees on appeal pursuant to l. c.32-704.,,
The mere
citation to a code provision, without explaining how the cited code section provides for
an award
in the case or providing argument of how the section applies to the circumsknces
in the case. is
- A court
is n-ot bound by the recommendations ofan expert regarding
custody plans, and the recommendations can
9. Tj"9l4 jl{" uitimately orders a custody arrangerneni uased- on the Lst inte.".r or tr," lt iia.--i-ir.,,.
Levin, 122ldaho "_qY 587,836 p.2d 529, 533 (1992\.
583,
l6
insuffrcient for an award of aftomey fees on appeal. Bagley v. Thomason, 149 Idaho
799, g05,
241P.3d972'978 Q0l0). Therefore we find that Tracy is not entitled to attomey fees
on appeal.
An award of attomey fees on appeal pursuant to LC. r2-l2r is permitted for
$ a
prevailing party when the court determines that an appeal was brough! pursued,
or defended in
a manner that was frivolous, unreasonable, or without foundation. page
v. pasquali, r50 Idaho
150'153,244P.3d,1236,1239(2010). wefindrhatTracydidnorpursuetheappealfrivolously,
and that Char.les is not entitled to attomey fees on appeal.
ry. CONCLUSION
we hold that the magistrate court did not abuse its discretion with its custody
detemrination or its decision to order C.C. to reside primarily in pocatello.
We also hold that the
magishate court did not abuse its discretion when it excluded Dr.
vereen,s expert opinion
testimony regarding a specific percentage of time for physicar custody
among the parenrs.
Finally, we find that neither party is entitled to attomey fees on appeal.
costs to charles.
Justices EISMANN, J. JONES, W. JONES and HORTON,
CONCUR
t7