Horton v. Horton

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 48224
DESIREE LASHAWN HORTON, )
)
Petitioner-Appellant, ) Lewiston, April 2022 Term
)
v. ) Opinion Filed: October 3, 2022
)
ANDREW PATRICK HORTON, ) Melanie Gagnepain, Clerk
)
Respondent-Respondent on Appeal )
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai
County. Richard S. Christensen, District Judge. Timothy Van Valin, Magistrate Judge.
The decision of the district court is affirmed in part and reversed in part.
James, Vernon & Weeks, P.A., Coeur d’Alene, for appellant, Desiree Lashawn Horton.
Monica Flood Brennan argued.
Kevin J. Waite, P.C., Coeur d’Alene, for respondent, Andrew Patrick Horton.
Kevin J. Waite argued.
_____________________
STEGNER, Justice.
This case arises out of a divorce proceeding between Desiree and Andrew Horton. 1 Desiree
served Andrew with an Amended Complaint for Divorce in December of 2016. On June 15, 2017,
in lieu of a trial, Desiree and Andrew entered into an oral stipulation on the record specifying how
their community property would be divided between them. Because Desiree was employed as a
teacher in Italy by the United States government and Andrew was a member of the United States
military on active duty, the decree of divorce required specific language to be enforceable as to
their respective retirement accounts. The magistrate court stated that, due to this specific language,
it would “retain jurisdiction” with respect to the parties’ retirement accounts.
A written judgment and decree of divorce was entered on February 26, 2018, and dated
nunc pro tunc to June 15, 2017, the date of the parties’ oral stipulation. After later motions and
hearings on behalf of both parties, an amended judgment and decree of divorce was entered on
1
The parties will be referred to by their first names for the sake of simplicity and clarity. No disrespect is intended by
doing so.
1
October 18, 2018. The later amended judgment and decree did not indicate it was being issued
nunc pro tunc.
Andrew appealed the decision to enter the amended judgment and decree of divorce to the
district court, arguing that the magistrate court had abused its discretion in several ways. After oral
argument, the district court agreed and concluded the magistrate court had abused its discretion in
three distinct ways: (1) by deciding to remove the nunc pro tunc language from the initial judgment
entered on February 26, 2018; (2) by requiring Andrew to obtain “Survivor Benefit Coverage” for
Desiree; and (3) by excluding, over Andrew’s objection, language related to Desiree’s Federal
Employee Retirement System account. The district court ordered that the amended judgment and
decree of divorce entered on October 18, 2018, be vacated and the case remanded to the magistrate
court for various findings of fact and conclusions of law. Desiree timely appealed to this Court.
For the reasons discussed below, we affirm in part and reverse in part the decision of the district
court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Desiree and Andrew Horton were married in Idaho on August 19, 1998. Andrew was in
the United States military, stationed mostly in Europe. Desiree was a teacher, working for the
United States government in Italy. The couple had no children together but became co-guardians
of Desiree’s two granddaughters.
Approximately eighteen years after they were married, in September 2016, Desiree filed a
complaint for divorce in Idaho’s First Judicial District on the grounds that there were irreconcilable
differences between the couple. In December 2016, Desiree filed an amended complaint for
divorce. Andrew filed a response in February 2017, contesting the division of community property
and incurred debts set out in Desiree’s amended complaint.
In March 2017, Desiree filed a motion for an order of mediation, stating that “the [p]arties
[we]re not very far apart regarding property issues[.]” Mediation was ordered, and the mediation
took place in May 2017 with Desiree’s proposed mediator, Martha Roletto. Believing the parties
had reached an agreement through mediation, Roletto prepared a draft decree of divorce the parties
could sign as a stipulation. Andrew signed the proposed stipulated decree on May 3, 2017;
however, Desiree never signed it.
2
The parties continued to negotiate and, on June 15, 2017, entered into an oral stipulation
(the “Stipulation”) before the magistrate court, which was read into the record by Andrew’s
counsel. The Stipulation provided in pertinent part:
Judgment is entered as follows: . . . The parties are divorced on the grounds of
irreconcilable differences.
...
3. The military pension plan in Andrew’s name shall be awarded as follows:
A. All funds earned up to the date of marriage, August 19, 1998, shall be
awarded to Andrew; and
B. All funds earned from August 19, 1998, until the date of the entry of this
judgment and decree re: divorce shall be equal – shall be equally divided
between the parties, since this portion represents the community property
portion of the earnings.
4. The FERS account in Desiree’s name – and I believe FERS stands for Federal
Employment Retirement System – shall be awarded as follows:
A. All funds earned up to the date of the marriage, August 19, 1998, shall
be awarded to Desiree; and
B. All funds earned from August 19, 1998, until the date of the entry of this
judgment and decree re: divorce shall be divided – shall be equally divided
between the parties, since this portion represents the community property
portion of the earnings.
Counsel for Desiree then stated, “I think we need to add a clause right there where it says the
[c]ourt will retain jurisdiction over this matter . . . [a]nd make any modifications necessary, so that
the parties are awarded what they were intended to be awarded with regards to the retirement
accounts.” The magistrate court clarified, “[c]ourt will retain jurisdiction over this matter for the
purposes of the retirement and military accounts.” Because Desiree, who was attending the hearing
via Skype, was having trouble hearing, the magistrate court reiterated, “[T]he [c]ourt is retaining
jurisdiction over the issue as to the retirements and whatever other type accounts there are that are
going to be divided by [Peter] Svennungsen[,]” an attorney enlisted to help with the specific
language needed with regard to the retirement accounts.
The magistrate court then asked both Desiree and Andrew, “do you agree with the decree
of divorce as it was read into the record?” Both Desiree and Andrew answered in the affirmative.
The magistrate court stated, “All right. That will be the order of the [c]ourt.” Counsel for Andrew
volunteered to draft the decree for the parties to sign and the magistrate court to enter.
3
On June 27, 2017, before a written decree of divorce had been entered or any draft decree
had been put before the magistrate court, Desiree filed an objection to the entry of the decree and
moved to include an order for health insurance into the decree of divorce. Desiree requested that
“an additional term” be added to the decree of divorce that ordered Andrew to keep Desiree and
her two granddaughters on his health insurance. She also requested, in the alternative, that “the
divorce be stayed for a period of one year so that she does not lose health insurance options in the
military.” A hearing was held on the motion on July 11, 2017. Andrew objected, arguing that both
of Desiree’s requests were “additional provisions that were not agreed to as part of” the Stipulation.
The magistrate court did not rule on Desiree’s requests but continued the hearing for thirty days
for the parties to provide authority or stipulate to the correct course of action. Desiree moved to
continue the hearing, and on October 30, 2017, the magistrate court held another hearing. Again,
the magistrate court did not rule on Desiree’s requests.
On February 2, 2018, Desiree filed a motion to stay the divorce proceedings until August
2018. The resulting stay would mean that Desiree and Andrew would be married a full twenty
years, which would allow Desiree to become a “20/20/20” military spouse, entitling her “to
significant military benefits, including pension, health insurance, and other important benefits.”
Desiree had previously asked Andrew to stay married until the twenty-year mark, but he had
refused. Citing Byrd v. Byrd, No. 04-11-00700-CV, 2012 WL 4576945 (Tex. App. Oct. 3, 2012),
withdrawn and superseded by 2012 WL 6013424 (Tex. App. Nov. 30, 2012), Desiree requested
that, “in the interest of justice,” the magistrate court order the divorce be stayed until after she and
Andrew had been married for a full twenty years.
Desiree filed a proposed decree on February 21, 2018. The magistrate court then held a
hearing on February 26, 2018. The magistrate court stated that, because “there [wa]sn’t any good
cause at this particular point” to grant the stay, it was not going to stay the divorce until August
2018, and that the parties were divorced as of June 2017. On February 26, 2018, the magistrate
court entered a Judgment and Decree of Divorce (the “Original Decree”), dated nunc pro tunc to
June 15, 2017. The Original Decree provided in relevant part:
3. The military pension plan, in Andrew’s name, shall be awarded as follows:
a. All funds earned up to the date of marriage (August 19, 1998), shall be
awarded to Andrew; and
b. All funds earned from August 19, 1998[,] until the date of the entry of
this Judgment and Decree Re: Divorce, shall be equally divided between
4
the parties since this portion represents the community property portion of
the earnings.
4. The FERS account, in Desiree’s name, shall be awarded as follows: All funds
earned until the date of the entry of this Judgment and Decree Re: Divorce shall be
equally divided between the parties.
5. The parties shall provide [sic] cooperate in good faith to have a Domestic
Relations Order be prepared for both the FERS account and the military retirement
pension account as follows:
a. They shall agreed [sic] upon a preparer by first contacting JAG to see if
it can assist them in having these documents prepared. If so, they shall
provide all documentation needed for the completion of both documents.
They shall equally share in the cost of said preparation.
b. If JAG is unable to prepare the two Domestic Relations Orders, they shall
have Peter Svennungsen, or another agreed upon preparer, prepare them and
they shall equally share in his costs. They shall contact Peter Svennungsen
at [his listed contact information].
The court shall retain jurisdiction over the two retirement /pension [sic] accounts
for the preparation and entry of appropriate Domestic Relations Orders.
Desiree filed a motion to modify the divorce decree, to reconsider, and/or set aside the
decree on March 12, 2018. Desiree argued that the language in the Original Decree was not specific
enough for Andrew’s military retirement account. Desiree further argued that the Original Decree
should include the Survivor Benefit Plan (“SBP”) benefits earned during the marriage, which
would entitle her to 55% of Andrew’s base pay if the magistrate court ordered Andrew to elect the
coverage and he died before she did. Desiree also asserted that Andrew’s accrued leave was
community property that had not, but should have, been included in the Original Decree, and that
the portion of the FERS account in her name that had accrued prior to marriage was her separate
property. Additionally, Desiree requested that the magistrate court reconsider both its decision to
enter the Original Decree nunc pro tunc and its decision not to stay the divorce until the marriage
had lasted a full twenty years so Desiree could receive 20/20/20 health care benefits. On April 2,
2018, Desiree filed an amended motion, adding an alternative request to set aside the Original
Decree and “allow for additional limited discovery respecting information not disclosed but
necessary to a division of the community assets – specifically, the community military benefits.”
A hearing on the motion to modify was held on May 22, 2018. The magistrate court stated
that it would remove the nunc pro tunc language and would instead date the decree the day it was
signed, which was to happen within seven days. Additionally, the magistrate court determined that
5
the SBP benefits were an “omitted asset” and ordered Andrew to elect the SBP coverage for
Desiree. The magistrate court further ordered that if community funds had been expended to “buy
back” a portion of the FERS account, as Andrew contended, that portion of the FERS account was
to be split equally between the parties.
On June 11, 2018, Desiree filed a proposed decree, to which Andrew objected on the
grounds that it did not comport with the magistrate court’s May 22, 2018, rulings. Andrew argued
that, at the hearing on May 22, 2018, the magistrate court had ordered the amended decree be
entered nunc pro tunc to February 26, 2018, the date the Original Decree had been entered.
Additionally, the magistrate court had ordered Desiree to pay any costs associated with electing
the SBP coverage, which was not contained in the proposed decree. Further, the language
regarding the FERS account stated: “The FERS account in Desiree’s and/or Andrew’s name shall
be awarded as follow[s]: All funds earned during the marriage shall be equally divided between
the parties[,]” which was different from the language in the Original Decree even though “[t]here
does not appear to be any reason to have changed this language.”
A hearing on the proposed decree and related objection was held on July 23, 2018. The
magistrate court stated that Andrew was correct that it had ordered the new decree be entered nunc
pro tunc to February 26, 2018. Counsel for Andrew also explained that the reason he was seeking
to split the entirety of Desiree’s FERS account was because “she cashed out her prior-to-the-
marriage FERS account” and “then they bought it back during the marriage.” The magistrate court
instructed the parties to split the entire FERS account, “[i]ncluding, but not limited to, any purchase
of cashed out FERS” “funds prior to marriage” “that were paid for by community funds.”
On October 1, 2018, Desiree filed a motion for entry of an amended decree and motion to
reconsider nunc pro tunc. Desiree “assert[ed] there were no FERS funds cashed out and purchased
back during the marriage.” Desiree also requested that the magistrate court reconsider its decision
to make the divorce decree nunc pro tunc to February 26, 2018, because the magistrate’s July 23,
2018, order to make the decree nunc pro tunc was a reversal of the magistrate’s May 22, 2018,
order that the decree would not be entered nunc pro tunc. Desiree further asserted that Andrew had
not “demonstrated any prejudice to him by removal of the Nunc Pro Tunc.”
On October 16, 2018, the magistrate court held its final hearing. The magistrate court stated
that, while it had been a mistake for the court to remove the nunc pro tunc language, it would abide
by its May 22 ruling and not enter the decree nunc pro tunc. Additionally, the magistrate court
6
decided it would not order the language regarding the cashed out FERS funds be included in the
decree. On October 18, 2018, the magistrate court entered an Amended Judgment and Decree of
Divorce (the “Amended Decree”). In relevant part, the Amended Decree provided:
3. The military retirement benefits earned by Andrew during the marriage are
community property. They should be awarded as follows:
a. The [c]ourt awards the wife as her share of the military pension one-half
of the community property portion of the husband’s actual retired pay (that
is, the portion acquired during the marriage up to the date of entry of the
judgment of divorce). Any information necessary to effectuate this division
shall be provided by husband as recommended by Mr. Svenningsen [sic].
b. The husband will immediately elect former spouse Survivor Benefit Plan
coverage for the wife.
c. The wife shall pay all expenses associated with the Survivor Benefit Plan
when they accrue.
4. The FERS account in Desiree’s and/or Andrew’s name shall be awarded as
follows: All funds earned or acquired during the marriage shall be equally divided
between the parties.
5. The parties shall cooperate in good faith and provide or release any and all
information, documents, and records needed to have a Court Order Acceptable for
Processing (COAP) for both the FERS accounts and the [sic] have a Military
Pension Division Order (MPDO) prepared for the military pension as follows:
a. They shall agree upon a preparer by first contacting JAG to see if it can
assist them in having these documents prepared. If so, they shall provide all
documentation needed for the completion of both documents. They shall
equally share in the cost of said preparation.
b. If JAG is unable to prepare the two Domestic Relations Orders, COAP
and MPDO, they shall have Attorney Peter Svennungsen, or another agreed
upon preparer, prepare them and they shall equally share in his costs. They
shall contact Peter Svennungsen at [his listed contact information].
c. The [c]ourt shall retain jurisdiction over the retirement benefits referenced herein
for the preparation and entry of appropriate Court Order Acceptable for Processing
(COAP) and Military Pension Division Order (MPDO).
After entry of the Amended Decree, Andrew appealed to the district court, arguing that the
magistrate court had abused its discretion. After oral argument, the district court entered its
memorandum decision and order on June 25, 2020. The district court concluded the magistrate
court had abused its discretion in three distinct ways: (1) by deciding to remove the nunc pro tunc
language from the Original Decree; (2) by requiring Andrew to obtain SBP coverage for Desiree;
and (3) by including, over Andrew’s objection, specific language related to Desiree’s FERS
7
account. The district court ordered that the Amended Decree be vacated and the case be remanded
“to the magistrate court to make proper findings of fact and conclusions of law” regarding “[t]he
date of divorce[,]” “[w]hether the election of [SBP c]overage is an asset of the marital
community[,]” and “[w]hether the FERS account is an asset of the marital community, and if so,
how it is to be divided.” Desiree timely appealed to this Court.
II. STANDARD OF REVIEW
When reviewing the decision of a district court acting in its appellate
capacity, this Court does not review the decision of the magistrate court. Bailey v.
Bailey, 153 Idaho 526, 529, 284 P.3d 970, 973 (2012). Rather, this Court is
“procedurally bound to affirm or reverse the decisions of the district court.” Id.(quoting State v. Korn, 148 Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1 (2009)).
However, in so doing, this Court reviews the record before the magistrate court “to
determine whether there is substantial and competent evidence to support the
magistrate’s findings of fact and whether the magistrate’s conclusions of law follow
from those findings.” Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760
(2008) (quoting Nicholls v. Blaser, 102 Idaho 559, 561, 633 P.2d 1137, 1139
(1981)). If the magistrate court’s findings are supported by substantial and
competent evidence “and the conclusions follow therefrom,” this Court will affirm
the district court’s decision affirming the magistrate court “as a matter of
procedure.” Id.Bromund v. Bromund, 167 Idaho 925, 928, 477 P.3d 979, 982 (2020).
Though the parties disagree as to whether the other party provided an appropriate standard
of review, both parties agree that this Court should determine whether the district court erred in
concluding the magistrate court abused its discretion.
In order to determine whether a trial court has abused its discretion, this Court must
determine whether the trial court: “(1) correctly perceived the issue as one of
discretion; (2) acted within the outer boundaries of its discretion; (3) acted
consistently with the legal standards applicable to the specific choices available to
it; and (4) reached its decision by the exercise of reason.” Lunneborg v. My Fun
Life, 163 Idaho 856, 867, 421 P.3d 187, 198 (2018).
Papin v. Papin, 166 Idaho 9, 30–31, 454 P.3d 1092, 1113–14 (2019).
III. ANALYSIS
A. The Stipulation is a binding divorce settlement.
We must first determine whether the Stipulation is an enforceable divorce settlement
agreement. Central to the parties’ dispute is whether the Stipulation resolved or should have
controlled the later disagreements.
8
In general, divorce settlement agreements must be in writing to be enforceable. I.C. § 32-
917 (“All contracts for marriage settlements must be in writing, and executed and acknowledged
or proved in like manner as conveyances of land are required to be executed and acknowledged or
proved.”); Stevens v. Stevens, 135 Idaho 224, 227–28, 16 P.3d 900, 903–04 (2000). Oral
agreements, even those made in mediation, are not enforceable. Stevens, 135 Idaho at 229, 16 P.3d
at 905. This Court has previously explained that the writing requirement promotes public policy
considerations:
Public policy favors requiring divorce settlement agreements to be in writing. One
of the major purposes for requiring life-changing documents to be written and
executed is to impress upon the parties the importance of the legal consequences of
the document. For example, prenuptial agreements and wills must be written,
signed, executed, and acknowledged. See I.C. § 32-922; I.C. § 15-2-502. Dividing
the property of a community that may have lasted for decades has consequences at
least as important as distributing the assets of the deceased. Indeed, the process of
drafting an agreement often shows the parties that they omitted major issues or
made hasty assumptions while negotiating. In addition, the requirement of writing
and execution substantiates that the parties actually did come to a meeting of the
minds in a vitally important area. This case is a perfect example: [the husband] left
the [mediation] meeting believing that all issues of the divorce were totally settled.
On the other hand, [the wife] left the two-hour meeting viewing the dictated
agreement as a working proposal subject to revision after verifying the values of
the community’s assets and debts and thus confirming that the agreement was fair.
Id.
However, there is an exception to the writing requirement when the parties make “oral
stipulations in open court in divorce cases.” Id. “Stipulations taken by oath are of a different
character than self-serving testimony by one spouse, contested by the other spouse, that the parties
at a former time reached an oral agreement.” Id. “Courts accept stipulations as evidence when they
are satisfied that the parties currently understand and acknowledge the agreement.” Id.
Here, counsel for both Desiree and Andrew read the Stipulation into the record at the
hearing before the magistrate court on June 15, 2017. The following exchange then occurred:
THE COURT: Ms. Horton, I know that it’s been difficult for you to –
MS. HORTON: Yes.
THE COURT: – understand and – and hear everything. However, I think there’s
been a lot of discussion here.
Do you believe that you – do you agree with the decree of divorce
as it was read into the record?
MS. HORTON: Yes.
9
THE COURT: All right. Mr. Horton, do you agree with the decree of divorce as it
was read into the record?
MR. HORTON: I do.
THE COURT: Any questions at all from you, Ms. Flood-Brennan?
MS. FLOOD-BRENNAN: No, I think that we have – both parties have acted in
good faith and – and got this resolved.
THE COURT: Mr. Waite?
MR. WAITE: No questions or further comments, your Honor.
THE COURT: All right. That will be the order of the Court.
The Stipulation was read into the record in open court and both parties expressly stated they agreed
to the Stipulation. Importantly, however, neither party was under oath at the time.
Ordinarily, this would be the end of our inquiry: the failure of the parties to be under oath
during the oral stipulation would require us to conclude the oral stipulation was not binding upon
the parties. However, neither party has made such a challenge to the Stipulation on appeal. Instead,
the parties simply argue that the Stipulation supports their respective positions. Because the parties
have failed to challenge the Stipulation on appeal, we necessarily conclude that the Stipulation is
the parties’ binding settlement agreement. We do caution the bar and the bench that the best
practice moving forward is to require these stipulations to be under oath.
We further conclude that, if the Stipulation is at odds with conventional community
property law, the Stipulation controls. Idaho Code section 32-916 provides: “The property rights
of husband and wife are governed by [Idaho Code title 32, chapter 9], unless there is a marriage
settlement agreement entered into during marriage containing stipulations contrary thereto.” I.C.
§ 32-916 (italics added). Thus, if the Stipulation resolved the later disagreements between parties,
the Stipulation—and not community property law—controls.
B. The district court did not err in concluding the magistrate court abused its
discretion in removing the nunc pro tunc clause.
The Original Decree was entered on February 26, 2018, and included language that it was
effective nunc pro tunc to June 15, 2017, the date the parties entered into the Stipulation. At the
hearing on Desiree’s motion for reconsideration on May 22, 2018, Desiree sought removal of the
nunc pro tunc language for two reasons. First, she requested that the entire divorce be stayed until
August 2018 so she would be entitled to free military healthcare benefits for life as a “20/20/20”
spouse. Second, because her free one-year of military healthcare benefits she received as a
10
“20/20/15” spouse began to run on the effective date of the divorce, she requested that the
magistrate court at least remove the nunc pro tunc language to give her additional time to find new
healthcare coverage. The magistrate court agreed to remove the nunc pro tunc language but did
not agree to stay the divorce until the twenty-year mark. At the hearing on October 16, 2018, the
magistrate court stated that, while it had been a mistake to remove the nunc pro tunc language, the
magistrate court would abide by its May 22 ruling.
Acting in its appellate capacity, the district court concluded that the magistrate court had
abused its discretion when it decided to remove the nunc pro tunc language present in the Original
Decree. The district court concluded that the magistrate court did not recognize the issue as within
its discretion, nor did it reach its decision by an exercise of reason.
On appeal, Desiree argues that, due to the potential loss of her military health care
coverage, she would have been subjected to “manifest injustice” if the nunc pro tunc language had
remained, and that Andrew failed to show he would have been prejudiced by the removal of the
nunc pro tunc language. Pointing to Byrd v. Byrd, No. 04-11-00700-CV, 2012 WL 4576945 (Tex.
App. Oct. 3, 2012), withdrawn and superseded by 2012 WL 6013424 (Tex. App. Nov. 30, 2012),
Desiree asserts the magistrate court had the authority to remove the nunc pro tunc language and
stay the divorce proceedings until the marriage had lasted a full twenty years.
Andrew responds that the parties’ Stipulation on June 15, 2017, provided the magistrate
court with the factual basis to enter the Original Decree on February 26, 2018, nunc pro tunc to
June 15, 2017. Andrew argues that, even if the magistrate court had the authority to remove the
nunc pro tunc verbiage to allow Desiree to retain military health care benefits, the record is devoid
of the magistrate court’s reasoning and “there is no indication that the [m]agistrate [court]
recognized the issue as one within [its] discretion[.]” Andrew notes that even the magistrate court,
at the hearing on October 16, 2018, believed it had been a mistake to remove the nunc pro tunc
verbiage.
“Nunc pro tunc literally means ‘now for then.’ . . . In the present context, the phrase
indicates that a judgment should be given retroactive effect to a designated date.” Smith v. Glenns
Ferry Highway Dist., 166 Idaho 683, 700–01, 462 P.3d 1147, 1164–65 (2020) (quoting Westmont
Tractor Co. v. Estate of Westfall, 112 Idaho 712, 714, 735 P.2d 1023, 1025 (1987)) (ellipsis in
original). “A judgment or order can be entered nunc pro tunc only to correct what the court
11
intended to do, but failed to do as a result of the court’s accident, excusable oversight, or mistake.”
Taylor v. Chamberlain, 154 Idaho 695, 700, 302 P.3d 35, 40 (2013).
Notably, neither party challenges the magistrate court’s decision to enter the Original
Decree nunc pro tunc to the date of the Stipulation; rather, the issue before this Court is the removal
of the nunc pro tunc language. There does not appear to be any case law in Idaho regarding the
removal of nunc pro tunc language from a judgment. However, before the magistrate court,
Desiree argued that Idaho Rule of Family Law Procedure 809 2 allowed the magistrate court to
remove the nunc pro tunc language “[b]ecause justice require[d] it.” See I.R.F.L.P. 809(b)(6)
(2012) (“On motion and just terms, the court may relieve a party or its legal representative from a
final judgment, order, or proceeding for . . . any other reason that justifies relief.”). This Court
recently discussed the interpretation of Rule 809:
There is little case law discussing Idaho Rule of Family Law Procedure 809.
However, this rule is patterned after Idaho Rule of Civil Procedure 60(b), and the
two rules are substantially the same with only minor differences in language.
Therefore, cases interpreting Rule 60(b) are applicable to interpreting its family law
counterpart. The standards for reviewing decisions under Rule 60(b) are well-
established. “The decision to grant or deny a motion under I.R.C.P. 60(b) is
committed to the discretion of the trial court.” Eby v. State, 148 Idaho 731, 734,
228 P.3d 998, 1001 (2010), citing Pullin v. City of Kimberly, 100 Idaho 34, 36, 592
P.2d 849, 851 (1979).
...
It should be noted, however, that before applying its discretion, “a determination
under Rule 60(b) turns largely on questions of fact to be determined by the trial
court. Those factual findings will be upheld unless they are clearly erroneous.” Eby,
148 Idaho at 734, 228 P.3d at 1001, quoting Waller v. State, Dep’t of Health and
Welfare, 146 Idaho 234, 237–38, 192 P.3d 1058, 1061–62 (2008). “If the trial court
applies the facts in a logical manner to the criteria set forth in Rule 60(b), while
keeping in mind the policy favoring relief in doubtful cases, the court will be
deemed to have acted within its discretion.” Id.Robirds v. Robirds, 169 Idaho 596, 604, 499 P.3d 431, 439 (2021) (footnote omitted). “[A]lthough
the court is vested with broad discretion in determining whether to grant or deny a Rule 60(b)
motion, its discretion is limited and may be granted only on a showing of ‘unique and compelling
circumstances’ justifying relief.” Miller v. Haller, 129 Idaho 345, 349, 924 P.2d 607, 611 (1996)
(quoting Matter of Estate of Bagley, 117 Idaho 1091, 1093, 793 P.2d 1263, 1265 (Ct. App. 1990)).
2
Rule 809, as it existed in 2017 and 2018, has since been renumbered and is now located in Rule 805. I.R.F.L.P. 805.
12
We conclude that the district court correctly determined that the magistrate court did not
reach its decision by an exercise of reason. It is unclear why the magistrate court decided to remove
the nunc pro tunc language. At several points during the May 22, 2018, hearing, the magistrate
court stated that it did not “have a problem with removing the nunc pro tunc language” and further
commented “I think it’s an equitable solution to a very difficult problem.” The magistrate court
concluded, “[a]ll right. The [c]ourt is – I will set aside the nunc pro tunc [language].” The
magistrate court then asked whether Desiree would “still ha[ve] the same problem” if the
magistrate court made the new decree nunc pro tunc to February 26, 2018, the date the Original
Decree was signed and entered. Counsel for Desiree responded, “Well, she has less of a problem
if you’re going to go with the February [date], but we – we would simply ask that we go with the
date – we – we will get that decree in to you this week.” The magistrate court then decided, “[I]t’ll
be my order upon the signature. And I require that that be on my desk within a week, within seven
days of today’s date. Seven business days.” The magistrate court did not provide any other
reasoning as to why it chose to remove the nunc pro tunc language.
Failing to provide reasoning on the record does not automatically call for reversal. Robirds,
169 Idaho at 606, 499 P.3d at 441. “[T]his Court has held that while trial courts are typically
required to disclose their reasons for discretionary decisions that directly affect the outcome of
litigation, a [trial] court need not disclose reasoning when those reasons are obvious from the
record itself.” Id. (internal quotations omitted; second bracketed alteration in original). It could be
inferred that the magistrate court was persuaded by Desiree’s potential loss of SBP coverage,
which was required to be elected within one year of the date of divorce. Alternatively, it could be
inferred that the magistrate court was persuaded that Desiree’s potential loss of the 20/20/15
healthcare benefits justified the removal of the nunc pro tunc language. 3
However, at the hearing on October 16, 2018, the magistrate court again discussed the
removal of the nunc pro tunc language:
You talked me into taking out the nunc pro tunc. It was against my better judgment,
but I was trying to get the thing resolved at the – in July of this year. And here we
are, August – or October. Still don’t got [sic] it.
3
It is unclear how Desiree would have qualified as a 20/20/15 spouse but would not have qualified as a 20/20/20
spouse. A spouse acquires 20/20/15 status when there has been twenty years of military service, twenty years of
marriage, and fifteen of those years overlap. Conversely, a spouse acquires 20/20/20 status when there has been twenty
years of military service, twenty years of marriage, and twenty of those years overlap. Thus, Desiree likely would not
have qualified as either a 20/20/15 or a 20/20/20 spouse if the decree were entered prior to August 2018, the twenty-
year mark of the couple’s marriage.
13
I entered the final judgment and decree in February with a nunc pro tunc on
it. I withdrew that nunc pro tunc in July. I see now that that was a mistake. But I’m
– my word is my word. I’m going to enter – the divorce should have been done –
should be June of last year. That’s what the divorce should be. But because of
delays, this has languished.
...
I will enter the decree. I will sign it today the way it is. The fact that because
of this unreasonable delay in this case that Ms. Horton got what the [c]ourt did not
intend is of concern.
...
I said that I would – in an effort to get the case resolved I withdrew the nunc
pro tunc and I’m not going to go against that. I should have left the divorce as it
was, but I didn’t.
(Italics added.) Thus, based on the magistrate court’s soliloquy at the October 16 hearing, it appears
that the reason the magistrate court agreed to remove the nunc pro tunc language was to expedite
the divorce proceedings. At the very least, the reasoning put forth on the record at the October 16
hearing cuts against the inference from the May 22, 2018, hearing that the magistrate court was
persuaded that Desiree’s loss of either SBP coverage or the 20/20/15 healthcare benefits justified
the removal of the nunc pro tunc language.
Because the reasons for the removal of the nunc pro tunc language are not obvious from
the record itself, the magistrate court should have expressly disclosed its reasoning. See Robirds,
169 Idaho at 606, 499 P.3d at 441. The failure to do so is grounds for reversal because a Rule 809
motion should only be granted “on a showing of ‘unique and compelling circumstances’ justifying
relief.” Miller, 129 Idaho at 349, 924 P.2d at 611 (quoting Matter of Estate of Bagley, 117 Idaho
at 1093, 793 P.2d at 1265). Without the magistrate court’s reasoning, this Court has no way to
review whether the Rule 809 motion was granted upon a showing of unique and compelling
circumstances. Therefore, we conclude that the district court correctly determined that the
magistrate court did not reach its decision to remove the nunc pro tunc verbiage by an exercise of
reason.
C. The district court did not err in concluding the magistrate court abused its
discretion in including the SBP coverage in the Amended Decree.
According to Mark Sullivan, a purported expert in military divorces hired by Desiree, the
“SBP is a survivor annuity associated with the military retirement to which [Andrew] is entitled
14
upon the completion of at least 20 years of creditable service.” “The benefit is 55% of the retired
pay base, and during the marriage [Desiree] was covered as the SBP beneficiary of [Andrew].”
The Stipulation, entered into by the parties on June 15, 2017, was silent as to the election
of SBP coverage. Desiree first raised the issue of SBP coverage in a motion to continue hearing
on August 10, 2017. In an affidavit, Desiree’s counsel stated that Sullivan “said that there are three
assets which have likely not been considered in the contemplated agreement. A. Accrued leave
(which can be as much as $15,000[)] B. USAA insurance, and C. [The] SBP survivor benefit if
[Andrew] dies first[.]” Desiree’s proposed decree, filed on February 21, 2018, prior to the entry of
the Original Decree, also listed the SBP coverage as a community asset (along with Andrew’s
accrued leave).
At the hearing on February 26, 2018, the magistrate court declined to include the SBP
coverage in the Original Decree:
MS. FLOOD-BRENNAN: And could I – could I just ask the [c]ourt for one other
thing? Instead of saying “I’m retaining jurisdiction over the
retirement,” could the [c]ourt at least say, “I’m retaining
jurisdiction over all possible military benefits that haven’t been
included in the divorce?” Because there are other things besides
just retirement that are at issue here.
THE COURT: I’m retaining jurisdiction over anything that was in – that had to do
with retirement in the decree that I just signed.
MS. FLOOD-BRENNAN: Because there’s a survivor benefit that’s really
important and it’s not in the decree.
THE COURT: Well –
MS. FLOOD-BRENNAN: And if Mr. Horton passes away in the near future, she’s
not going to get it.
THE COURT: And it’s – that’s not information, okay, that was addressed at the
trial. So it’s – the trial was the trial. And if it needs to get changed,
then there’s – there’s procedures for that. But at this particular
point…
(Off the record in this matter.)
(Although there was not a trial in this case, the magistrate court explained at the hearing on May
22, 2018, that it “looked at the [S]tipulation as a trial[.]”) However, at the hearing on May 22,
2018, the magistrate court concluded that the SBP coverage was an “omitted asset” and reversed
course: “The omitted assets. I will find that it’s justifiable to amend this, based on inadvertence,
which is [Rule] 809.1.”
15
The district court concluded that the magistrate court had abused its discretion when it
required Andrew to elect the SBP coverage for Desiree. The district court noted that “[t]he
transcript of the [S]tipulation does not contain any reference to” the SBP coverage; rather, Desiree
first raised the issue months after the parties entered into the Stipulation.4 The district court further
noted that the parties disagreed as to whether the SBP coverage was a community asset. The district
court reasoned:
The issue appears to be whether election of survivor benefit coverage is actually a
community asset to be determined by the court in divorce proceedings. If so, then
whether to require its election was a discretionary decision for the court (e.g., Papin
v. Papin, 166 Idaho 9, [34,] 454 P.3d 1092, 1117 (2019)), and the court could have
dealt with the issue at this later date under the guise of retaining jurisdiction over
the military accounts.
The district court concluded that the magistrate court “provided no legal or factual analysis as to
how it determined the [SBP] Coverage was a community asset.” “It also provided no explanation
as to why it included it as a community asset (over the objection of [Andrew]) nearly sixteen (16)
months after the parties stipulated to a property division.”
On appeal, Desiree argues that the magistrate court “had not only the legal authority to
require Andrew to elect the military [SBP coverage], but the obligation to do so.” Desiree contends
that the SBP “is a survivor annuity that was earned during the marriage” and is thus community
property. Desiree cites twelve cases—none from Idaho—to support this contention. Andrew
responds that the SBP coverage was not part of the Stipulation. He argues that the district court
correctly determined that the magistrate court abused its discretion. Pointing to Ross v. Ross, 103
Idaho 406, 648 P.2d 1119 (1982), Desiree replies that Andrew should be estopped from attempting
to change the Amended Decree because he benefitted from the magistrate court’s decision to not
split Andrew’s accrued leave between the parties.
As a preliminary matter, we conclude that Desiree’s reliance on Ross in her effort to estop
Andrew from challenging the SBP coverage election is misplaced. In Ross, the Idaho Supreme
Court held that quasi-estoppel barred a wife in a divorce action from challenging the divorce
decree. 103 Idaho at 408–09, 648 P.2d at 1121–22.
[T]he doctrine of quasi-estoppel requires that the offending party must have gained
some advantage or caused a disadvantage to the party seeking estoppel; induced the
4
The district court concluded that Desiree first raised the issue of the SBP coverage at the hearing on May 22, 2018.
However, it appears from the record that Desiree first raised the issue in a motion to continue hearing that she filed on
August 10, 2017.
16
party seeking estoppel to change its position to its detriment; and, it must be
unconscionable to allow the offending party to maintain a position which is
inconsistent from a position from which it has already derived a benefit. City of
Sandpoint v. Sandpoint Independent Highway Dist., 126 Idaho 145, 151, 879 P.2d
1078, 1084 (1994) (citing Tommerup v. Albertson’s, Inc., 101 Idaho 1, 6, 607 P.2d
1055, 1060 (1980)).
Thomas v. Arkoosh Produce, Inc., 137 Idaho 352, 357, 48 P.3d 1241, 1246 (2002) (alteration in
original).
After the entry of the divorce decree, the wife in Ross “received large amounts of property
[and] had repeated executions issued on the judgment and received approximately $67,000 in cash
in settlement of certain of those executions[.]” 103 Idaho at 409, 648 P.2d at 1122. This Court
explained:
Because [the wife] initially sought the divorce and argued that a divorce should be
granted to her, and the entry of the decree enabled [the husband] to remarry, as he
did, and the [wife] took advantage of the favorable provisions of the decree of
divorce, we hold that it is unconscionable for her to now maintain an inconsistent
position, and therefore, she is estopped to deny its validity.
Id. (italics added). Here, Desiree has not provided any evidence that Andrew has attempted to use
the decree to gain some advantage, nor has she illustrated how Andrew’s current position is
inconsistent with his prior position. Desiree is essentially arguing that, simply because the
magistrate court ruled in Andrew’s favor on the accrued leave issue, he should be estopped from
challenging the inclusion of the SBP coverage. By this logic, a party would be estopped from
appealing any erroneous decision by a lower court so long as there was at least one decision the
lower court made—no matter how inconsequential to the litigation—that favored that party.
Instead, the only valid appeal would be when a party appeals from a proceeding at which that party
lost on every issue. We find Desiree’s argument unpersuasive.
Moreover, “[a]s an affirmative defense, the burden is on [the party asserting the defense]
to prove the elements of quasi-estoppel by a preponderance of the evidence.” Thomas, 137 Idaho
at 358, 48 P.3d at 1247. During the intermediate appeal before the district court below, Andrew
expressly argued in his opening brief that the magistrate court’s choice to “decline[] to address
accrued leave” “should have guided [its] decision on the [SBP] Coverage election as well.” Despite
this, Desiree did not raise quasi-estoppel in her briefing before the district court, nor did she raise
it in her opening brief before this Court. Thus, even if she could prevail on the merits of a quasi-
estoppel claim—which she cannot—she has not properly raised the claim on appeal. See Suitts v.
17
Nix, 141 Idaho 706, 708, 117 P.3d 120, 122 (2005) (“A reviewing court looks only to the initial
brief on appeal for the issues presented because those are the arguments and authority to which the
respondent has an opportunity to respond in the respondent’s brief.”). As such, we decline to estop
Andrew from challenging the SBP coverage and will reach the merits of the issue at hand.
Next, as discussed above, the Stipulation is a binding settlement agreement. Therefore, the
next inquiry is whether Desiree was intended to receive the SBP coverage pursuant to the
Stipulation. “It is well established in Idaho that when construing a party’s settlement agreement,
normal rule[s] of contract construction apply.” Bondy v. Levy, 121 Idaho 993, 996, 829 P.2d 1342,
1345 (1992). “The primary objective in construing a contract is to discover the intent of the parties,
and in order to effectuate this objective, the contract must be viewed as a whole and considered in
its entirety.” Id.The determination of a contract’s meaning and legal effect are questions of law to
be decided by the court where the contract is clear and unambiguous. However,
where a contract is determined to be ambiguous, the interpretation of the document
presents a question of fact which focuses upon the intent of the parties. The
determination of whether a contract is ambiguous or not is a question of law over
which we may exercise free review, and in determining whether a contract is
ambiguous, our task is to ascertain whether the contract is reasonably subject to
conflicting interpretation.
Id. at 996–97, 829 P.2d at 1345–46 (internal citations omitted).
If “the contract is clear and unambiguous, [] courts cannot revise the contract in order to
change or make a better agreement for the parties.” Id. at 997, 829 P.2d at 1346. If, however, the
contract is ambiguous, “the magistrate’s interpretation of the [agreement] will be upheld if
supported by substantial and competent evidence.” Toyama v. Toyama, 129 Idaho 142, 144, 922
P.2d 1068, 1070 (1996).
We hold that the Stipulation is ambiguous as to the SBP coverage. With regard to the
military benefits, the Stipulation provided:
3. The military pension plan in Andrew’s name shall be awarded as follows:
A. All funds earned up to the date of marriage, August 19, 1998, shall be
awarded to Andrew; and
B. All funds earned from August 19, 1998, until the date of the entry of this
judgment and decree re: divorce shall be equal – shall be equally divided
between the parties, since this portion represents the community property
portion of the earnings.
18
Thus, because the Stipulation is silent as to the SBP coverage and Desiree did not bring the SBP
coverage to the attention of the magistrate court until months after the Stipulation was entered into
the record, it could reasonably be determined that the parties did not intend Desiree to receive the
SBP coverage.
On the other hand, it also appears that, pursuant to section 3.B of the Stipulation, the parties
intended to split Andrew’s military pension fifty-fifty. Without the election of the SBP coverage,
Desiree would only receive her fifty percent of Andrew’s pension as long as Andrew lives; if
Andrew were to pass away before retiring, Desiree would get nothing. Additionally, because the
magistrate court “retained jurisdiction” 5 over Andrew’s pension for the purpose of ironing out the
specific language the military would require, the fact that the Stipulation is silent as to the SBP
coverage does not necessarily mean that the parties meant it to be excluded. Thus, it could
reasonably be determined that the parties intended Desiree to receive the SBP coverage (so long
as she paid any additional expense necessary for the benefit). Because there are at least two
reasonable, yet conflicting interpretations, the Stipulation is ambiguous as to the SBP coverage
and therefore, “the interpretation of the [Stipulation] presents a question of fact which focuses
upon the intent of the parties.” See Bondy, 121 Idaho at 997, 829 P.2d at 1346.
The magistrate court did not expressly address the intent of the parties. However, though
the magistrate court did reverse its original ruling that the SBP coverage not be included in the
decree of divorce, both of the magistrate court’s rulings were consistent in concluding that the SBP
coverage was not contemplated in the Stipulation. At the hearing on February 26, 2018, the
magistrate court stated that the SBP coverage was not part of the Stipulation. Likewise, on May
22, 2018, the magistrate court concluded that the SBP coverage was an asset that had been omitted
from the Stipulation. As noted above, the SBP coverage was not raised before the magistrate court
until August 2017, months after the parties entered into the Stipulation. Therefore, the
determination that the SBP coverage was not contemplated in the Stipulation is supported by
substantial and competent evidence.
Because the Stipulation does not govern the SBP coverage, Idaho Code section 32-916
applies: “The property rights of husband and wife are governed by [Idaho Code title 32, chapter
5
Though the magistrate court stated several times it was “retaining jurisdiction” over the retirement accounts, this
phrasing was legally inaccurate. In accepting the Stipulation, the magistrate court simply made an interlocutory
decision; it did not relinquish jurisdiction over any part of the case at hand and we caution against the use of the phrase
“retained jurisdiction” in this context.
19
9], unless there is a marriage settlement agreement entered into during marriage containing
stipulations contrary thereto.” Whether the SBP benefit is an asset capable of division here is not
a question before this Court. Therefore, we agree with the district court that, upon remand, the
magistrate court should make proper findings of fact and conclusions of law in the first instance
as to whether the election of the SBP coverage for Desiree is an asset of the marital community.
In sum, the district court correctly concluded that the magistrate court abused its discretion
when it decided to order Andrew to elect the SBP coverage for Desiree.
D. The district court erred in concluding the magistrate court abused its discretion
in deciding to reject Andrew’s requested language regarding the FERS account
in the Amended Decree.
Regarding Desiree’s FERS account, the Stipulation provided:
4. The FERS account in Desiree’s name – and I believe FERS stands for Federal
Employment Retirement System – shall be awarded as follows:
A. All funds earned up to the date of the marriage, August 19, 1998, shall
be awarded to Desiree; and
B. All funds earned from August 19, 1998, until the date of the entry of this
judgment and decree re: divorce shall be divided – shall be equally divided
between the parties, since this portion represents the community property
portion of the earnings.
On February 21, 2018, Desiree submitted a proposed decree, which offered the following
language: “The FERS account, in Desiree’s name, shall be awarded as follows: All funds earned
until the date of the entry of this Judgment and Decree Re: Divorce shall be equally divided
between the parties.” Without argument or discussion at the February 26, 2018, hearing, the
Original Decree adopted the language from the proposed decree.
On March 12, 2018, Desiree moved to modify the Original Decree. She filed an affidavit,
“request[ing] that the [magistrate] court specify that Andrew is only entitled to a share of
[Desiree’s] FERS/civil benefits after the time [they] were married.” At the hearing on May 22,
2018, counsel for Andrew explained that the reason the FERS account was divided completely in
half was because Desiree had cashed out the portion that accrued prior to the marriage but “[t]hey
bought back that component during the marriage; therefore, the whole thing is community property
and that’s why it was addressed that way.” Desiree contested Andrew’s characterization of the
account, arguing that “there [was] no evidence to suggest that” the parties had cashed out and
bought back a portion of the FERS account, and further argued that the parties had not agreed to
that in the Stipulation. The magistrate court stated:
20
As far as FERS is concerned, I want the same kind of language [as was used for
Andrew’s retirement account], whatever language is needed, so that Mr. Horton
gets the same amount that he’s supposed to get, the – the appropriate amount. If it
was a refund – if it was taken out, used for community debts or whatever it was by
the married couple and then it was refunded using community property, then it’s
community property. It has been transmuted. So that will be divided 50/50.
On June 11, 2018, Desiree filed a proposed Amended Judgment and Decree of Divorce,
which provided: “The FERS account in Desiree’s and/or Andrew’s name shall be awarded as
follow[s]: All funds earned during the marriage shall be equally divided between the parties.”
Andrew objected, requesting that the language regarding the FERS account remain the same as the
language in the Original Decree because “[t]here does not appear to be any reason to have changed
this language.”
At the hearing on July 23, 2018, Desiree continued to assert that Andrew was not entitled
to any of the funds in the FERS account that were accrued prior to the marriage. Andrew
maintained that the parties had agreed to split the entirety of the FERS account at the time of the
Stipulation because the premarital portion had been cashed out and purchased back after the
marriage. The following exchange then occurred:
THE COURT: Okay. Wait a minute. Wait a minute. How about this – have a seat.
MR. WAITE: Uh-huh.
THE COURT: Including, but not limited to, any purchase of cashed out FERS –
MS. FLOOD-BRENNAN: Uh-huh.
THE COURT: – funds prior to marriage –
MS. FLOOD-BRENNAN: Uh-huh.
THE COURT: – that were paid for by community funds. Period.
The magistrate court clarified, “[T]hat’s the language I want in there” and stated, “And that – that
will be the order of the [c]ourt, as far as that language is concerned.”
On October 1, 2018, Desiree filed a Motion for Entry of Amended Decree and Motion to
Reconsider Nunc Pro Tunc. Desiree again “assert[ed] there were no FERS funds cashed out and
purchased back during the marriage.” She filed a proposed Amended Decree, which provided:
“The FERS account in Desiree’s and/or Andrew’s name shall be awarded as follow[s]: All funds
earned or acquired during the marriage shall be equally divided between the parties.” Andrew
objected, arguing that the magistrate court had expressly ordered at the July 23, 2018, hearing that
the decree state, “All funds earned or acquired during the marriage, including but not limited to
21
any cashed out FERS funds that were purchased back during the marriage, shall be equally divided
between the parties.” (Italics added.)
At the hearing on October 16, 2018, the magistrate court refused to include Andrew’s
requested language, stating:
I – I do not – I am not going to put a different label on the funds that she purchased
back where she had borrowed them from – from, before, because – well, I’m just
not going to do it, okay? I’m leaving it as it is. It’s just – I’m not going to get this
anymore convoluted than it already has [gotten].
The Amended Decree was then entered on October 18, 2018, which utilized language regarding
the FERS account that was identical to the proposed Amended Decree that Desiree filed on
October 1, 2018.
On intermediate appeal, the district court concluded:
The record does not reflect that the court below received any evidence in order to
determine whether the FERS funds were community or separate property. Nor does
the record reflect any reasoning or explanation as to why the court failed to include
in the amended judgment the language that the court had previously ordered
regarding FERS funds.
On appeal to this Court, Desiree argues that the portion of “the FERS account that she
accumulated prior to the marriage” is her separate property. She further asserts that, pursuant to
the Stipulation, the parties agreed to split only the portion of the FERS account that accumulated
after they were married. Andrew responds that it is irrelevant whether the funds in the FERS
account are community or separate property because the FERS account was subject to the
Stipulation. Andrew further argues that the entirety of the FERS account was community property:
“Desiree had cashed out her retirement benefit early in the marriage, and then later the two of them
bought back that retirement credit to put her in a position of having a better and earlier retirement
package.”
Because the Stipulation is a binding settlement agreement, the next inquiry is whether the
parties intended to split the entirety of the FERS account. See Bondy, 121 Idaho at 996, 829 P.2d
at 1345. As noted above, if “the contract is clear and unambiguous, [] courts cannot revise the
contract in order to change or make a better agreement for the parties.” Id. at 997, 829 P.2d at
1346. If, however, the contract is ambiguous, “the magistrate’s interpretation of the [agreement]
will be upheld if supported by substantial and competent evidence.” Toyama, 129 Idaho at 144,
922 P.2d at 1070.
22
We conclude that the Stipulation is not ambiguous. With regard to the FERS account, the
Stipulation provided:
4. The FERS account in Desiree’s name – and I believe FERS stands for Federal
Employment Retirement System – shall be awarded as follows:
A. All funds earned up to the date of the marriage, August 19, 1998, shall
be awarded to Desiree; and
B. All funds earned from August 19, 1998, until the date of the entry of this
judgment and decree re: divorce shall be divided – shall be equally divided
between the parties, since this portion represents the community property
portion of the earnings.
While the Stipulation makes no reference to any funds that were “bought back” during the
marriage, it clearly delineates which funds were to be split by the parties and, importantly, clarified
that there were funds that would solely be awarded to Desiree. Andrew’s contention that the parties
intended to split the entire FERS account is belied by the express language of the Stipulation. As
a result, even if the Stipulation is at odds with conventional community property law, the
Stipulation controls. I.C. § 32-916 (“The property rights of husband and wife are governed by
[Idaho Code title 32, chapter 9], unless there is a marriage settlement agreement entered into during
marriage containing stipulations contrary thereto.” (italics added)).
While the district court correctly noted that the magistrate court did not “receive[] any
evidence in order to determine whether the FERS funds were community or separate property[,]”
any such determination would be irrelevant because the Stipulation resolves this issue. The
magistrate court’s decision at the October 16, 2018, hearing to reject Andrew’s requested language
regarding the FERS account was correct because the requested language would be contrary to the
Stipulation.
In sum, the district court erred in concluding the magistrate court abused its discretion in
deciding to reject the previously-ordered language regarding the FERS account in the Amended
Decree.
E. Neither party is entitled to attorney fees or costs on appeal.
Both parties request attorney fees and costs on appeal. Desiree argues she should be
awarded attorney fees pursuant to Idaho Code section 12-121 and Idaho Appellate Rule 41. Desiree
asserts that Andrew’s appeal to the district court was frivolous and he mischaracterized the
magistrate court’s rulings and the facts before the magistrate court during the intermediate appeal.
23
Andrew requests attorney fees under Idaho Code sections 12-121 and 12-123, as well as
Idaho Appellate Rule 41. Andrew argues that, because the magistrate court’s rulings “so clearly
were not the product of any proper exercise or discretion[,]” it is unreasonable and frivolous for
Desiree to have brought this appeal.
In reply, Desiree asserts that she did not bring this appeal frivolously. Instead, she contends,
it is Andrew who is acting frivolously in continuing to “insist[] without evidence that the entire
matter was resolved in mediation[.]”
Idaho Code section 12-121 provides that, “[i]n any civil action, the judge may award
reasonable attorney’s fees to the prevailing party or parties when the judge finds that the case was
brought, pursued or defended frivolously, unreasonably or without foundation.” I.C. § 12-121.
Here, both parties won below: Desiree at the magistrate court level and Andrew at the district court
level. It was not unreasonable for Desiree to appeal the district court’s reversal of her win before
the magistrate court, nor was it unreasonable for Andrew to defend his win before the district court.
Additionally, as discussed above, there is no case law in Idaho that clearly supports or contradicts
either party’s arguments. As such, we conclude that neither party acted frivolously on appeal.
Idaho Code section 12-123 governs “Sanctions for frivolous conduct in a civil case[.]” I.C.
§ 12-123. Section 12-123, however, “does not apply on appeal.” Papin, 166 Idaho at 43, 454 P.3d
at 1126 (quoting Tapadeera, LLC v. Knowlton, 153 Idaho 182, 189, 280 P.3d 685, 692 (2012)).
Therefore, although Andrew is victorious on appeal, he is not entitled to attorney fees under section
12-123.
Additionally, because Andrew is the prevailing party as to two issues, and Desiree is the
prevailing party as to one issue, we deny both parties costs on appeal. See Sommer v. Misty Valley,
LLC, Dkt. No. 48007, 2021 WL 6017844, at *17 (Idaho Dec. 21, 2021) (“Given the mixed results
in this case, neither party is the prevailing party on appeal, thus, we deny fees and costs to both
parties.”).
IV. CONCLUSION
For the foregoing reasons, we affirm in part and reverse in part the decision of the district
court. The case is remanded for further proceedings consistent with this opinion. We decline to
award costs or attorney fees to either party.
Chief Justice BEVAN, Justices BRODY, MOELLER and ZAHN CONCUR.
24