Boe v. Boe

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 45727
ERIK T. BOE, )
)
Petitioner-Respondent, )
Boise, June 2018 Term
)
v.
)
Filed: July 27, 2018
AMELIA M. BOE, nka JOHNSON, )
)
Karel A. Lehrman, Clerk
Respondent-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Laurie A. Fortier, Magistrate Judge.
Magistrate court ruling affirmed.
Bauer Ryan, PLLC, Boise, for appellant. Margalit Z. Ryan argued.
Geoffrey E. Goss, Boise, for respondent. Geoffrey E. Goss argued.
_________________________________
BURDICK, Chief Justice.
Amelia M. Johnson, fka Boe (Mother), brings this permissive appeal under Idaho
Appellate Rule 12.1 from the Ada County magistrate court. Mother and Erik T. Boe (Father)
divorced in 2010 and, at that time, stipulated to a joint-custody arrangement regarding their two
minor children, L.R.B. and L.E.B. (collectively, the Children). That custody arrangement
governed until 2015, when Father relocated from Southeast Boise to Meridian. With Father’s
move came disputes over physical and legal custody, which schools the Children should attend,
and issues pertaining to child support. A two-year course of litigation ensued, with Mother and
Father ultimately stipulating to a partial judgment that resolved physical custody and trying
issues concerning legal custody, the Children’s schools, and child support to the magistrate court.
As relevant here, the magistrate court ruled that the Children were to attend the schools assigned
to Father’s Meridian home (the Meridian Schools), and that Mother and Father were each
1
entitled to one dependency exemption. On appeal, Mother challenges these rulings and, further,
makes several contentions pertaining to physical custody. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father divorced in 2010. They stipulated to a divorce decree allowing for
joint legal and physical custody over the Children. 1 They agreed that Father’s home address in
Southeast Boise would be used for school registration purposes. The Children were thus enrolled
at the schools assigned to Father’s Southeast Boise home address (the Boise Schools), and this
was uncontested until Father relocated from Southeast Boise to Meridian in 2015.
Along with Father’s 2015 move to Meridian came the filing of his petition to modify the
divorce decree as it pertained to child custody. In that petition, filed on October 2, 2015, Father
requested “sole legal custody as it relates to the education of the minor children.” Father
identified several events as substantial, material, and permanent changes in circumstances,
including: (1) his move from Southeast Boise to Meridian; (2) his address had always been used
for school registration purposes; (3) Mother moved frequently, and had her address been used for
school registration purposes, the Children would have been placed in three schools by the fourth
grade; and (4) Mother did not prioritize the Children’s education. Consequently, Father
specifically requested that he be allowed to enroll the Children at the Meridian Schools. 2 Mother
answered Father’s petition, in relevant part, by counterclaiming that she should be awarded sole
legal custody and primary physical custody, with visitation rights for Father, and requesting a
modification of child support. 3
On February 19, 2016, Mother and Father stipulated to allow Robert Engle, Ph.D., to
perform a custody evaluation (the First Custody Evaluation). The parties agreed that the First
Custody Evaluation was “to help aid the parties to address their communication issues and to
determine a final custodial arrangement with the . . . [C]hildren.” Father’s counsel prepared an
order pertaining to the stipulation, which order stated that “the parties shall be bound by the
recommendations concerning custody from said evaluation.” When the order was sent to Mother,
she was instructed that, “[i]f [she] had any problems with this, let [Father’s counsel] know right
1
As Mother explains in her opening brief, “[t]here was a modification of the Decree of Divorce, in 2013, but it did
not affect the custody of the minor children.”
2
Father amended his petition in March 2016 to seek both (1) “sole legal custody of the . . . [C]hildren and the ability
to register the . . . [C]hildren immediately in [the Meridian Schools]”; and (2) “primary physical and residential
custody of the . . . [C]hildren, subject to visitation with [Mother].”
3
Mother’s amended answer to Father’s amended petition is substantially identical to her initial answer.
2
away, and we’ll make whatever recommendations or changes to that order.” No objection was
made, and instead, Mother and Father signed the stipulation that accompanied the order. The
magistrate court signed and entered the order on February 22, 2016.
Dr. Engle conducted the First Custody Evaluation in July 2016. He concluded it was in
the Children’s best interests for Father to have sole legal custody concerning educational
decisions and primary physical custody during the school year. The magistrate court
implemented the First Custody Evaluation at Father’s request by entering a corresponding
interlocutory judgment on August 12, 2016, 4 ordering that (1) the “parties shall have joint legal
custody of [the Children], with [Father] being awarded sole legal custody as it pertains to the
educational decisions”; (2) “[the C]hildren shall attend the school(s) associated with [Father’s]
residence”; and (3) during the schoolyear [sic], Father “shall be awarded primary physical
custody of the . . . [C]hildren, subject to visitation with [Mother.]”
Mother moved for reconsideration on October 3, 2016. Mother challenged the First
Custody Evaluation by contending it was improperly prepared and erroneously implemented
because, according to Mother, the parties did not stipulate to be bound by it. The magistrate court
denied the motion on November 30, 2016.
Anticipating trial on the issues of physical custody and child support, Father filed a
motion in limine to exclude evidence contrary to the First Custody Evaluation on January 18,
2017. The magistrate court granted Father’s motion, ruling that “evidence to the contrary [of the
First Custody Evaluation] will be excluded at the trial on the understanding that the parties have,
in essence, agreed to allow the [First Custody Evaluation] to be the only evidence on that point.”
But Mother’s challenges against the First Custody Evaluation continued. After deposing
Dr. Engle, she filed a motion in limine to exclude Dr. Engle’s testimony and the First Custody
Evaluation from evidence. Similarly, Mother moved the magistrate court to reconsider its ruling
granting Father’s motion in limine. The magistrate court heard these two intertwined motions on
February 21, 2017, and found that the First Custody Evaluation had been erroneously prepared,
as it did not comply with Idaho Rule of Family Procedure 719 and that rule’s express
incorporation of the Association of Family and Conciliation Courts Model Standards of Practice
4
The magistrate court designated this judgment as an interlocutory judgment, as it did not resolve all issues and
instead provided that a “[c]ourt [t]rial shall be scheduled . . . to resolve the outstanding issues reserved by this
judgment.” The interlocutory judgment resolved the issues of legal custody pertaining to educational decisions and
physical custody during the school year, but left unresolved additional issues concerning physical custody and child
support.
3
for Child Custody Evaluations (AFCC). Specifically, the First Custody Evaluation was deemed
erroneously prepared because, as relevant here, Dr. Engle accepted Father’s assertions as true
and “at face value” without giving Mother a chance to respond, which the magistrate court found
especially problematic. 5 In fact, Dr. Engle conceded that, while he “used to . . . have a meeting to
go over the allegations and the parents’ responses to the allegations[,]” he had since “quit doing
that because it was useless” and further conceded that he “do[es]n’t do that anymore with
anybody.” Consequently, the magistrate court reasoned that
an evaluation that has a willful disregard, which is what appears to be the case
here, of the basic procedure and rules that are contained in Rule 719, and by
extension, the standards set forth by the AFCC, the parenting time evaluation in
this case is not a parenting time evaluation any more than an affidavit that is
unsworn is not an affidavit or a check that is unsigned is not a negotiable
instrument.
The magistrate court therefore excluded the First Custody Evaluation from evidence, vacated the
impending trial date, and ordered a new custody evaluation from Todd Bennett, Ph.D. Although
Mother moved the magistrate court to vacate the interlocutory judgment that implemented the
First Custody Evaluation, the magistrate court denied Mother’s request and allowed it to govern.
Dr. Bennett’s custody evaluation (the Second Custody Evaluation) was filed with the
magistrate court on July 21, 2017. Dr. Bennett recommended that Mother and Father have shared
physical and legal custody, and that the Children be assigned to the Meridian Schools. Regarding
physical custody, Dr. Bennett concluded that, “[u]ltimately, it is in the best interest of the
[C]hildren to have both parents act in a facilitative role.” Regarding the Children’s schools, Dr.
Bennett explained that the Children “have done well this past year” and that they should continue
attending the Meridian Schools. However, he declined to recommend that one parent be awarded
legal custody, explaining:
I do not recommend that either parent have legal decision-making over
school related issues. When one parent has legal authority, they stop co-parenting
with the other parent. If there are major decisions to be made, such as school,
5
While the exclusion of the First Custody Evaluation is not at issue on appeal, Gallagher v. State, 141 Idaho 665,
669, 115 P.3d 756, 760 (2005) (explaining that issues not raised in the opening brief are waived), its exclusion is
supported by Idaho Rule of Family Procedure 719 and that rule’s express incorporation of the AFCC. The AFCC
require, inter alia, that evaluations be accurate, objective, and that “any allegation concerning a matter that the
evaluator is likely to consider in formulating his/her opinion shall be brought to the attention of the party against
whom the allegation is registered so that s/he is afforded an opportunity to respond.” AFCC § 5.5. Association of
Family and Conciliation Courts, Model Standards of Practice for Child Custody Evaluations (2006), available at
https://www.afccnet.org/Portals/0/ModelStdsChildCustodyEvalSept2006.pdf.
4
summer school, or extracurricular activities that the parents cannot agree on, this
would be an appropriate use of a parenting coordinator assigned to their family.
After the Second Custody Evaluation, Mother and Father stipulated to entry of a partial
judgment to resolve the issue of physical custody. Under the partial judgment, Mother and Father
stipulated to “a shared week on off custodial arrangement.” The magistrate court signed and
entered the partial judgment on August 30, 2017. The outstanding issues concerning “what
school the [C]hildren should attend, [Father’s] request to have sole decision regarding choice of
school, and matters of [child] support[,]” were tried to the magistrate court on September 6,
2017. The magistrate court ruled that the Children “will continue to attend their present schools
[(i.e., the Meridian Schools)] and future schools that are assigned to [Father’s] current residence
[in Meridian]. Any changes to school(s) must be agreed upon, unless it normally flows from
[Father’s] residence.” In addition, the magistrate court awarded one dependency exemption to
Mother and one to Father. Mother timely sought permission to appeal these rulings from trial
under Idaho Appellate Rule 12.1, and the magistrate court granted her request.
II. ISSUES ON APPEAL
1. Are Mother’s challenges concerning physical custody moot?
2. Did the magistrate court err by assigning the Children to the Meridian Schools?
3. Did the magistrate court abuse its discretion in allocating the two dependency
exemptions?
4. Should attorney fees be awarded on appeal?
III. ANALYSIS
A. Mother’s challenges concerning physical custody are moot.
“Justiciability issues, such as mootness, are freely reviewed.” Syringa Networks, LLC v.
Idaho Dep’t of Admin., 159 Idaho 813, 826, 367 P.3d 208, 221 (2016) (quoting State v. Barclay,
149 Idaho 6, 8, 232 P.3d 327, 329 (2010)). “An issue becomes moot if it does not present a real
and substantial controversy that is capable of being concluded through judicial decree of specific
relief.” Nampa Educ. Ass’n v. Nampa Sch. Dist. No. 131, 158 Idaho 87, 90, 343 P.3d 1094, 1097
(2015) (quoting Ameritel Inns, Inc. v. Greater Boise Auditorium Dist., 141 Idaho 849, 851, 119
P.3d 624, 626 (2005)). Stated differently, mootness “applies when a favorable judicial decision
would not result in any relief. This Court may only review cases in which a judicial
determination will have a practical effect on the outcome.” Houpt v. Wells Fargo Bank, Nat.
Ass’n, 160 Idaho 181, 189, 370 P.3d 384, 392 (2016) (quoting Fenn v. Noah, 142 Idaho 775,
5
779, 133 P.3d 1240, 1244 (2006)). “This Court must raise issues of mootness sua sponte because
it is a jurisdictional issue.” Suter v. Biggers, 157 Idaho 542, 550, 337 P.3d 1271, 1279 (2014).
Mother makes a flurry of contentions in an effort to show that the magistrate court erred
by ordering the parties to be governed by the physical custody arrangement set forth in the First
Custody Evaluation. She specifically disputes the magistrate court’s conclusion that she validly
stipulated to be bound by the First Custody Evaluation, contends the First Custody Evaluation
was erroneously prepared, and asserts the magistrate court inappropriately abdicated its duties to
Dr. Engle. However, Mother’s challenges concerning physical custody under the First Custody
Evaluation are moot because it no longer governs physical custody in this case, but instead has
been superseded by the parties’ stipulated-to partial judgment. A procedural recap will illustrate.
On February 19, 2016, the parties stipulated to allow Dr. Engle to perform the First
Custody Evaluation. By entering the interlocutory judgment dated August 12, 2016, the
magistrate court implemented the First Custody Evaluation, ordering, as Dr. Engle
recommended, that (1) the “parties shall have joint legal custody of [the Children], with [Father]
being awarded sole legal custody as it pertains to the educational decisions”; (2) “[the C]hildren
shall attend the school(s) associated with [Father’s] residence”; and (3) during the school year,
Father “shall be awarded primary physical custody of the . . . [C]hildren, subject to visitation
with [Mother.]” Mother objected to the magistrate court’s implementation of the First Custody
Evaluation by filing a motion to reconsider, a motion in limine to exclude the First Custody
Evaluation from evidence, and a motion requesting the magistrate court to reconsider its ruling
on Father’s motion in limine.
At the hearing on Mother’s motions in limine and requesting reconsideration of the ruling
on Father’s motion in limine, the magistrate court found that the First Custody Evaluation had
been erroneously prepared and did not comply with Idaho Rule of Family Procedure 719 and the
AFCC. Therefore, although the magistrate court did not vacate the interlocutory judgment
implementing the First Custody Evaluation, it excluded the First Custody Evaluation from
evidence, vacated the impending trial date (which, then, was just two days away), and ordered
the Second Custody Evaluation from Dr. Bennett. The Second Custody Evaluation, filed with the
magistrate court on July 21, 2017, recommended that Mother and Father have shared legal and
physical custody, and that the Children be assigned to the Meridian Schools.
6
On August 29, 2017, after the Second Custody Evaluation was conducted, Mother and
Father stipulated to entry of a partial judgment that resolved the issue of physical custody. Under
the partial judgment, Mother and Father stipulated to “a shared week on off custodial
arrangement.” As Mother explains in her briefing,
prior to trial, the parties settled the issue of physical custody. The parties filed a
stipulation for the entry of a partial judgment, wherein physical custody returned
to the status quo that existed prior to [Father] filing his petition to modify custody,
with the parents alternating one-week periods of custody with the [C]hildren. The
issues remaining for the trial court’s determination were what school the
[C]hildren should attend, [Father’s] request to have sole decision regarding choice
of school, and matters of support.
Clearly, the partial judgment did not implement the physical custody arrangement set
forth in the First Custody Evaluation. Rather, the partial judgment implemented the physical
custody arrangement to which the parties had stipulated. The stipulated-to partial judgment,
which still governs, moots Mother’s challenges concerning physical custody.
The parties cite to this Court’s decision in Suter, 157 Idaho 542, 337 P.3d 1271, which is
instructive in this instance. In Suter, the mother appealed, in relevant part, a temporary order that
had been entered without any findings of fact or conclusions of law. Id. at 550–51, 337 P.3d at1279–80. But following the temporary order, “the court entered its January 2014 decision and its
February 2014 Third Modified Decree, which effectively replace[d] the temporary order.” Id.Accordingly, this Court dismissed that challenge as moot in Suter. Id. at 551, 337 P.3d at 1280.
Here too, like the temporary order in Suter, the First Custody Evaluation has been effectively
replaced by the stipulated-to partial judgment. This moots Mother’s challenges concerning
physical custody.
Were this Court to rule on the merits of Mother’s challenges against physical custody
under the First Custody Evaluation, no relief would result. Indeed, it is not as if the physical
custody arrangement would be modified if this Court were to rule on the merits of these
challenges. Houpt, 160 Idaho at 189, 370 P.3d at 392 (“This Court may only review cases in
which a judicial determination will have a practical effect on the outcome.” (quoting Fenn, 142
Idaho at 779, 133 P.3d at 1244)). To the contrary, the stipulated-to partial judgment would still
govern physical custody, and Mother has not made any argument that it should be voided. But cf.
Budget Truck Sales v. Tilley, nos. 45082-45083 slip op. at p. 5 (April 20, 2018) (“An agreement
7
entered into in good faith in order to settle adverse claims is binding upon the parties, and absent
a showing of fraud, duress or undue influence, is enforceable either at law or in equity.”).
Because Mother’s challenges concerning physical custody do not create a real, substantial
controversy for us to resolve, we dismiss them as moot.
B. The magistrate court did not err by assigning the Children to the Meridian Schools.
Mother contends the magistrate court erred by assigning the Children to the Meridian
Schools. Before addressing the merits of Mother’s arguments, we clarify that, unlike physical
custody, the issue of determining the Children’s schools, as raised in Father’s 2015 petition, is
not mooted by the stipulated-to partial judgment. In that judgment, the parties left unresolved the
issues of legal custody concerning educational decisions and which schools the Children were to
attend. The parties tried those issues to the magistrate court on September 6, 2017. On September
21, 2017, the magistrate court issued its rulings from the bench and assigned the Children to the
Meridian Schools, but did not award legal custody to either parent. As the magistrate court
explained, “[r]ather than assign legal custody to one parent or the other, since the [C]hildren are
already attending [the Meridian Schools], we’re just going to have them continue to attend [the
Meridian Schools].” A corresponding judgment was entered on December 12, 2017. From that
judgment, Mother appeals. Our standard of review is as follows:
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. A trial court’s child custody decision will not be overturned
absent an abuse of discretion. A trial court does not abuse its discretion as long as
the court “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.”[6] When the trial
court’s decisions affect children, the best interests of the child is the primary
consideration.
Lamont v. Lamont, 158 Idaho 353, 356, 347 P.3d 645, 648 (2015) (citations omitted). “This
Court will affirm the decision of a magistrate so long as there was substantial competent
evidence to support the decision, even if conflicting evidence was presented.” Woods v. Sanders,
150 Idaho 53, 60, 244 P.3d 197, 204 (2010).
6
We recently clarified that the abuse of discretion inquiry consists of four separate questions, asking whether the
lower court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its
discretion; (3) acted consistently with relevant legal standards; and (4) reached its decision by an exercise of reason.
Lunneborg v. My Fun Life, No. 45200, 2018 WL 3150964, at *4 (June 28, 2018).
8
As the party moving to modify custody, Father had the burden to prove the occurrence of
a substantial, material, and permanent change in circumstances that warranted a change of
custody aligning with the Children’s best interests. 7 E.g., Searle v. Searle, 162 Idaho 839, 846,
405 P.3d 1180, 1187 (2017). The magistrate court concluded Father’s move to Meridian
constituted a substantial, material, and permanent change in circumstances, and this conclusion is
undisputed on appeal. Mother disputes instead the magistrate court’s school ruling by contending
Father failed to prove it was in the Children’s best interests to attend the Meridian Schools.
Mother’s argument does not persuade us.
Indeed, the evidence Father presented at trial undercuts Mother’s contention. When
presenting his case in chief, Father called Dr. Bennett, who performed the Second Custody
Evaluation, as his first witness. Dr. Bennett testified that he has performed custody evaluations
for seventeen years. Dr. Bennett testified that, in preparing the Second Custody Evaluation, he
performed multiple interviews of the parents and the Children, including interviews “with each
child in each parent’s home individually[.]” In Dr. Bennett’s view, the Children were “pretty
positive kids” who “liked everything” and “didn’t have really anything negative to say about
anything.” While he acknowledged that the Children thus liked both the Boise and Meridian
Schools, Dr. Bennett testified that the Children “were doing better in this school [(i.e., the
Meridian Schools)] academically than they were previously[,]” and that the Children’s academic
“performance currently has improved based on where it was in the past.” When cross examined
by Mother, Dr. Bennett elaborated that,
specifically regarding [L.E.B.], there was an assessment done while he was at [the
Boise Schools] that stated he was performing in second grade at the beginning
levels of a first grade student. When they transferred over into [the Meridian
Schools], he was retained a year, and his grade performance is -- has been at
grade level. And I believe that their academic performance has been positive.
Dr. Bennett’s testimony comports with and further explains the Second Custody
Evaluation, which Father proffered as a trial exhibit. In the Second Custody Evaluation, Dr.
Bennett concluded that it was in the Children’s best interests for them to be assigned to the
Meridian Schools. As Dr. Bennett reasoned,
7
The burden shifts to the non-moving party only “when two elements are met: (1) the other parent seeks permission
to relocate and (2) that relocation would violate an existing custody arrangement.” Suter, 157 Idaho at 547, 337 P.3d
at 1276. These elements are not triggered in this case, as Mother did not seek to relocate. Thus, Father was to have
the burden of proof.
9
[the Children] indicated that they have many friends, several of whom live in their
same neighborhood [in Meridian]. They reported that they liked to their teachers,
the playground, and the food [at the Meridian Schools]. [L.R.B] said that he found
it easier to make friends at Hunter [at the Meridian Schools]. [L.R.B.] reported
that he is planning on attending [the Meridian Schools’] middle school next year.
He thinks that this will be “cool” and he is excited to transition to this school.
In reaching his recommendation, Dr. Bennett observed that Father “has been primarily
active in dealing with the schooling regarding the [Children],” though Dr. Bennett acknowledged
that Mother “has had some involvement” in the Children’s schooling. This observation was
based, in part, on the fact that Mother “did not attend some of the critical [educational] meetings
regarding [L.E.B.] She did, however, meet with the staff after [the meetings] and signed off on
the meeting notes.” Dr. Bennett attributed the differing levels of involvement to contrasting
personality traits. He explained that Father “is an engineer and has a personality consistent with
this occupation. He is detail oriented, logical, a rule follower, structured, and predictable.”
Mother, conversely, “is much more emotional and relaxed in her parenting style. She is
relational, flexible, creative, and willing to be in the moment.” While Dr. Bennett recognized that
“[n]either one of these personality dynamics appear to be so extreme that they end up harming
the [C]hildren[,] he concluded that Father “has a personality much more inclined to follow
through and be consistent with school related issues.” When asked at trial on direct examination
whether anything had caused Dr. Bennett to reconsider his recommendation set forth in the
Second Custody Evaluation, he explained as follows:
No. No. There is just no point in bumping the kids around again in school
placement. [Father] seems to be very structured, detail-oriented, very actively
involved in the [Children’s] schooling decisions, very much on top of it. And I
think he’s a parent that will do a very good job in that capacity.
Aside from Dr. Bennett’s testimony and the Second Custody Evaluation, Father
presented additional evidence at trial illustrating the Children’s enhanced performance at the
Meridian Schools. As his second witness, Father called his wife, Tiara Boe, who works as a
teacher in the West Ada School District. She testified that the Children “are doing wonderful
socially” at the Meridian Schools. Regarding L.R.B., Tiara testified that “[h]e’s loving the
choices he’s offered. He gets to take the science classes that he loves. He loves the lunchroom
choices and the sports that he’s participating in. And he’s very happy as well[.]” Regarding
L.E.B., Tiara testified that his academic performance has improved at the Meridian Schools, and
10
specifically, “[i]t was like a breath of fresh air for him last year to retake second grade.[8] He fit
in; he looked like a second grader. He acted like a second grader. It was a wonderful opportunity
that we’re very blessed that we had the chance to do.”
Father additionally testified to the Children’s enhanced performance at the Meridian
Schools during his case in chief. He explained that, while L.R.B. has “always dealt with really
difficult anxiety issues[,]” L.R.B. has made “more friends than he’s ever had” while attending
the Meridian Schools. He further testified that L.R.B. had “joined the cross country team and just
had his first meet last week. And he had an incredible time. . . . [I]t was a really a positive
experience.” And concerning L.E.B., Father testified to his improved academic performance.
Father specifically testified that L.E.B. had “operat[ed at] over a full grade level behind where he
was at” during L.E.B.’s second-grade school year at the Boise Schools. As a result, when L.E.B.
was enrolled at the Meridian Schools, he was assigned to repeat the second-grade school year.
By the time of trial, Father testified that L.E.B. had “made tremendous progress because the team
at [the Meridian Schools] is incredible.” In fact, Father further testified that L.E.B. “had the best
year he’s had so far” while at the Meridian Schools.
The magistrate court’s findings are consistent with the evidence presented. In that regard,
the magistrate court found that the Children were “well adjusted to the [Meridian Schools], that
they like their school, and enjoy the social component of having many friends in the same
neighborhood.” Although the magistrate court recognized that the Boise and Meridian Schools
were comparable in many ways, important differences were found. In particular, regarding
L.R.B., the magistrate court found that L.R.B. was doing well socially at the Meridian Schools,
as L.R.B. had “told Dr. Bennett that he felt that it was easier to make friends at [the Meridian
Schools.]” As to L.E.B.,
[t]he one marked difference in the educational piece that would happen at
[the Boise Schools] is that [L.E.B.] would be placed in the class behind his former
classmates because he had been retained in the second grade. And at [the
8
When L.E.B. was enrolled at the Meridian Schools, Father assigned L.E.B. to retake the second grade. Father had
authority to do so under the interlocutory judgment entered on August 12, 2016. As the magistrate court explained,
Father made this decision after “consultation from both his wife and his mother-in-law, who are in the education
field and are education professionals[.]” The record shows that Father informed Mother of L.E.B.’s second-grade
assignment by email dated August 19, 2016, but Mother did not respond. In the Second Custody Evaluation, Dr.
Bennett observed that Father’s “decision to retain [L.E.B. in the second grade] was the right thing to do based on his
current level of functioning in school. [L.E.B.’s] academic performance has improved dramatically and in talking
with him, he feels like he fits in well with his class and within the school.”
11
Meridian Schools], he would remain in the same classroom with the same
classmates that he previously had.
To be sure, the magistrate court did acknowledge that Mother had proffered evidence
showing that the Children’s “wishes . . . seemed to indicate that they might want to go back to
[the Boise Schools.]” But the magistrate court then ascribed prevailing weight to the evidence
proffered by Father, noting that the Second Custody Evaluation expressly found that “the
[Children] may be communicating to [Mother] things that they believe she wants to hear. . . . I
would caution [Mother] to be careful how she interprets what the [Children] tell her and to
recognize how she could be influencing some of their statements.” It was within the province of
the magistrate court, as the finder of fact, to conclude Father’s evidence deserved prevailing
weight. Benninger v. Derifield, 142 Idaho 486, 489, 129 P.3d 1235, 1238 (2006) (“It is the
province of the [magistrate court] acting as trier of fact to weigh conflicting evidence and
testimony and to judge the credibility of the witnesses.”). On appeal, “[i]t is not our role to
reweigh the evidence.” Frontier Dev. Grp., LLC v. Caravella, 157 Idaho 589, 595, 338 P.3d
1193, 1199 (2014) (quoting In re Doe 2009-19, 150 Idaho 201, 209, 245 P.3d 953, 961 (2010)).
Notwithstanding the evidence Father proffered at trial, Mother contends the magistrate
court erroneously shifted the burden of proof from Father to Mother. As Mother elaborates,
[w]hen the trial court relied on the “faux”[9] status quo, it shifted the
burden of proof away from [Father], and onto [Mother]. The trial court’s earlier
order allowed [Father] to change the [C]hildren’s school away from [the Boise
Schools], where they had been attending when the case was initiated by [Father].
Then, a year later, it was effectively [Mother’s] burden to show that a “return” to
their original school would be in their best interest.
Mother’s argument is unavailing. For one, the order of the trial shows that the burden of
proof was properly placed on Father. As the moving party, Father was given the opportunity to
make an opening statement before Mother made hers, though he chose not to present one. He
then presented his case in chief first at the trial and, in doing so, called witnesses and proffered
exhibits to support his petition to modify custody. At the conclusion of the trial, Father made his
9
Mother uses the phrase “faux status quo” to refer to the custody arrangement ordered in the interlocutory judgment,
under which the magistrate court ordered that the “parties shall have joint legal custody of [the Children], with
[Father] being awarded sole legal custody as it pertains to the educational decisions . . . . [The C]hildren shall attend
the [Meridian Schools] associated with [Father’s] residence[,]” and that, during the school year, Father “shall be
awarded primary physical custody of the minor children, subject to visitation with [Mother].” By contrast, Mother
uses the phrase “original status quo” to refer to the custody arrangement that existed before the interlocutory
judgment was entered, wherein the parties had joint legal and physical custody, with the Children attending the
Boise Schools.
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closing statement before Mother did, and he later made a rebuttal argument to Mother’s closing
statement. The order of the trial proceedings is consistent with Father’s status as the moving
party, and it is not as if the magistrate court treated Mother as the moving party by, for example,
requiring her to present her case first as the moving party. Cf. Suter, 157 Idaho at 547, 337 P.3d
at 1276 (rejecting argument that magistrate court misallocated the burden of proof because, in
part, the moving party presented his case first). Mother even acknowledged this much when
making her opening statement, where she explained, “[y]our Honor, we have a petition here, and
that petition is asking the [Children] to move from [the Boise Schools] to [the Meridian
Schools.]” Plus, based on the above-discussed evidence Father proffered, the record confirms
that the burden of proof was properly placed on him. Otherwise, Father would have had no
reason to proffer the evidence he did, which supported his request for the Children to be assigned
to the Meridian Schools.
Equally unavailing is Mother’s argument as it relates to the magistrate court’s best-
interest analysis. The magistrate court correctly recognized that the Children’s “best interest is
the sole matter in which the Court is concerned.” E.g., Bartosz v. Jones, 146 Idaho 449, 454, 197
P.3d 310, 315 (2008) (“In Idaho, the child’s best interest is of paramount importance in child
custody decisions.”). To ascertain the Children’s best interests, the magistrate court relied on the
factors set forth under Idaho Code section 32-717. 10 Though the magistrate court recognized that
it was “not necessarily making a full physical custody determination” since the parties had
resolved that issue under the partial judgment, the magistrate court’s reliance on these factors
was appropriate. While weighing the enumerated section 32-717 factors, the magistrate court
noted that conflicting evidence surrounded some of the factors. For example, the magistrate court
acknowledged that, regarding the Children’s wishes, evidence showed that “they liked th[e
Meridian Schools]” and also “they liked th[e Boise Schools.]” And regarding the Children’s
10
Idaho Code section 32-717 serves to guide the best-interest analysis and instructs courts to 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;
(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.
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adjustment to the schools, the magistrate court acknowledged that evidence showed that the
Children “have been doing well [in the Meridian Schools]” and that they “had done fine in [the
Boise Schools].” But when it came to the Children’s adjustment to their schools, the magistrate
court explained that the evidence showed that the Children were “well adjusted to the [Meridian
Schools], that they like [the Meridian Schools], and enjoy the social component of having many
friends in the same neighborhood[,]” and further, that the Children’s academic performance had
improved while attending the Meridian Schools. While Mother contends that the Children’s need
for continuity and stability supports her position that they be assigned to the Boise Schools, the
evidence does not support her position. As Father showed at trial, from spring 2011 to summer
2017, Mother had requested that the Children attend eight different schools. Father appropriately
found “it was important to note all the different schools that she’s been interested in having the
[Children] attend[,]” as Mother’s requests for the Children to change schools rebuts her
continuity and stability arguments focusing on the Boise Schools. In light of the above-discussed
evidence, the magistrate court’s school ruling is supported by substantial, competent evidence,
compelling us to affirm. See, e.g., Woods, 150 Idaho at 60, 244 P.3d at 204.
Mother cites this Court to Hopper v. Hopper, 144 Idaho 624, 167 P.3d 761 (2007), which
does not cause us to reconsider our reasoning above. Hopper concerned a custody dispute
between former spouses, Chris and Suzanne, over their minor child, Caidan. Id. at 626–27, 167
P.3d at 763–64. Chris and Suzanne married in 1999, and Caidan was born in January 2003. Id. at
625, 167 P.3d at 762. By June 2013, the relationship soured, and Suzanne furtively moved to
Montana with Caidan, obtained a domestic violence protection order against Chris in Montana,
and filed a petition for divorce in Montana. Id. When Chris was served with the protective order,
he filed for divorce in Idaho. Id. Suzanne’s Montana protection order claim was ultimately
determined to be false, and the Montana divorce case was dismissed in deference to Idaho’s
jurisdiction. Id. Chris then filed a motion for temporary custody. Id. However, the “combined
result of Suzanne leaving the state and filing the actions in Montana was to cut off the
relationship between Chris and Caidan for over three months.” Id. As such, the magistrate court
awarded temporary custody of Caidan to Suzanne. Id. “The magistrate judge stated that the
arrangement did not satisfy ‘the court’s sense of justice’ as between the parties but concluded
that Caidan’s interests would best be served by remaining in Suzanne’s custody during the
pendency of the case, subject to substantial visitation by Chris.” Id. A psychologist conducted a
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parenting evaluation to assist in making a final custody evaluation, and the psychologist
recommended that “the parties share joint legal custody of Caidan, with Suzanne having primary
physical custody and Chris receiving frequent visitation.” Id. That recommendation was based on
how “Suzanne had historically been the primary parent and the one with whom Caidan had spent
more time, noting that children of that age need stability and consistency, including a stable
relationship with a primary caregiver.” Id. Custody was later tried to the magistrate court, and
Suzanne was awarded sole legal and physical custody. Id.When Chris appealed, this Court reversed. It emphasized the presumption in favor of
joint custody, and that “the custodial rights of [Chris] were compromised by the criminal act of
[Suzanne] in taking [Caidan] from Idaho and the misconduct of [Suzanne] in making a false
domestic violence claim.” Id. at 627, 167 P.3d at 764. This Court further explained,
[Chris’s] equal rights were prejudiced by [Suzanne] absconding with [Caidan] in
violation of I.C. § 18-4506 and obtaining an unfounded domestic violence order
in Montana restricting [Chris’s] ability to maintain a relationship with [Caidan].
Glossing over these facts and going to the end result that [Suzanne] has a greater
relationship with [Caidan] than [Chris] creates an untenable condition. If
permitted to stand, the lesson from this case is that the law may be disregarded, a
crime committed, falsehoods told, and advantage gained from the misconduct.
The proceedings should not have been allowed to continue for the duration with
[Suzanne] holding [Caidan] out of state while gaining all of the evidentiary
benefits of an enhanced relationship with [Caidan] to the detriment of [Chris].
[Suzanne] should have been ordered to return [Caidan] to Idaho where [Chris]
might exercise his rights as an equal parent and have this case decided with the
underlying legal and social principle that it is the best interests of a child to have a
continuing relationship with both parents.
The error that initially occurred has been exacerbated by the lapse of time
as these proceedings have taken place. That is a misfortune that follows from the
conduct of [Suzanne] and the failure of remedial action at the earliest stage of this
case. Continuing misfortunes will accumulate if the advantage gained by [the
misconduct] in this case is allowed to continue contrary to the fundamental social
and criminal law of the state. There is no perfect remediation for the problems in
this case, but at a minimum a custody hearing must be held with [Caidan] in Idaho
where [Chris] has an opportunity to have the contact with [Caidan] to which he is
entitled and [Caidan] receives the benefit recognized in our law that it is in the
best interests of [Caidan] to have a continuing relationship with both parents.
Id.
Mother’s reliance on Hopper is unavailing. Clearly, this case does not present criminal or
otherwise flagrant misconduct, as Hopper did. Hopper stressed that, “[i]f permitted to stand, the
lesson from this case is that the law may be disregarded, a crime committed, falsehoods told, and
15
advantage gained from the misconduct[,]” and further, that “[c]ontinuing misfortunes will
accumulate if the advantage gained by [the misconduct] in this case is allowed to continue
contrary to the fundamental social and criminal law of the state.” Id. Hopper reflects the
cornerstone maxim of our justice system that a party cannot reap a profit by virtue of committing
misconduct. See, e.g., 30A C.J.S. Equity § 110 (2018). In this case, by contrast, no misconduct
was committed, and hence, no improper advantage inured to either party. Nor has Mother’s
continuing relationship with the Children been undermined, as it was in Hopper. To the contrary,
Mother has joint physical custody. Hopper is unpersuasive here.
Because the magistrate court’s ruling assigning the Children to the Meridian Schools was
proper, we affirm.
C. We affirm the magistrate court’s allocation of the two dependency exemptions.
Allocating tax exemptions in a suit arising from the parent-child relationship is reviewed
for an abuse of discretion. See Rohr v. Rohr, 118 Idaho 689, 697, 800 P.2d 85, 93 (1990). To
determine whether the magistrate court abused its discretion, this Court evaluates 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 relevant legal standards; and (4) reached
its decision by an exercise of reason. Lunneborg v. My Fun Life, No. 45200, 2018 WL 3150964,
at *4 (June 28, 2018). The Idaho Legislature delegated authority to promulgate the Idaho Child
Support Guidelines (ICSG) to this Court. I.C. § 32-706(5); Garner v. Garner, 158 Idaho 932,
935, 354 P.3d 494, 497 (2015). ICSG § 8(c) addresses tax benefits and provides:
The actual federal and state income tax benefits recognized by the party
entitled to claim the federal child dependency exemption should be considered in
making a child support award. The parties may agree to an allocation of the
dependency benefits. Otherwise, the court should assign the dependency
exemption(s) to the parent who has the greater tax benefit calculated from the
tables below using the marital status and guidelines income of each parent at the
time of the child support award calculation. The parent not receiving the
exemption(s) is entitled to a pro rata share of the income tax benefit or child tax
credit in proportion to his/her share of the guidelines income. The pro rata share
of the income tax benefit will be either a credit against or in addition to the basic
child support obligation and shall be included in the child support order.
“If the court determines that circumstances exist to permit a departure from the [ICSG],
the judge making the determination shall make a written or specific finding on the record that the
application of the guidelines would be unjust or inappropriate in the particular case before the
court.” I.C. § 32-706(5).
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Here, the magistrate court and the parties agree that the ICSG instruct that Father should
be assigned both dependency exemptions, as Father would realize the greater tax benefit.
Father’s annual income was found to be $61,506, and Mother’s annual income was found to be
$26,750. Father, remarried, was entitled to an exemption of $1,800 for the first child and $1,900
for the second child. ICSG § 8(c). Mother, single and with custody, was entitled to an exemption
of $1,800 for the first child and $1,700 for the second child. ICSG § 8(c). Therefore, Father
would have the greater tax benefit, entitling him to both dependency exemptions.
However, the magistrate court chose to deviate from the ICSG by awarding one
dependency exemption to Mother and one to Father. The magistrate court entered an order to that
effect on October 6, 2017. This order, however, is not part of the record on appeal. It is therefore
impossible to determine whether the magistrate court articulated findings sufficient to deviate
from the ICSG, see I.C. § 32-706(5), which compels us to affirm the allocation of dependency
exemptions. As we have explained,
[t]he party appealing a decision of the district court bears the burden of
ensuring that this Court is provided a sufficient record for review of the district
court’s decision. When a record or exhibit not included in the record on appeal is
unavailable to the party who wishes to make it part of the record for appeal, it is
incumbent on that party to move the district court, or petition this Court,[11] to
order augmentation of the record on appeal with the relevant record(s) or
exhibit(s). When a party appealing an issue presents an incomplete record, this
Court will presume that the absent portion supports the findings of the district
court. We will not presume error from a “silent record or from the lack of a
record.”
Gibson v. Ada Cnty., 138 Idaho 787, 790, 69 P.3d 1048, 1051 (2002) (citation omitted). For that
reason, the dependency exemption allocation is affirmed.
D. We decline to award attorney fees on appeal.
Both parties seek attorney fees on appeal. Father, the prevailing party on appeal, cites to
Idaho Code section 12-121. Section 12-121 authorizes attorney fees to the prevailing party on
appeal only if “the action was pursued, defended, or brought frivolously, unreasonably, or
without foundation.” Idaho Military Historical Soc’y, Inc. v. Maslen, 156 Idaho 624, 633, 329
P.3d 1072, 1081 (2014) (internal quotation marks omitted). While Father contends Mother’s
appeal was frivolous and merely invited us to “second-guess the trial court[,]” we conclude
11
Mother petitioned this Court on March 26, 2018, to augment the record on appeal with a hearing transcript entitled
“Motion to Implement Parenting Time Evaluation Recommendations.” The motion to augment was granted. Mother
has never requested to augment the record with the October 6, 2017, child support order.
17
Mother has made complex legal arguments in good faith, as shown above. Cf. In re Doe II
(2017-31), 163 Idaho 399, ___, 414 P.3d 221, 226 (2018) (“Father made a good faith argument
that the termination decision was not supported by the evidence. As such, we cannot say that this
appeal was pursued frivolously or unreasonably.”). An award of attorney fees is therefore
improper on appeal.
IV. CONCLUSION
We dismiss Mother’s physical custody challenges as moot. We affirm the magistrate
court’s rulings assigning the Children to the Meridian Schools and awarding one dependency
exemption to Mother and one to Father. We award costs on appeal, but not attorney fees, to
Father as the prevailing party.
Justices HORTON, BRODY, BEVAN and WALTERS, Pro Tem, CONCUR.
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