Nancy J. Shepherd v. John M. Shepherd

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 42938
NANCY J. SHEPHERD, )
) Coeur d’Alene, April 2016 Term
Plaintiff-Appellant, )
) 2016 Opinion No. 106
v. )
) Filed: September 29, 2016
JOHN M. SHEPHERD, )
) Stephen Kenyon, Clerk
Defendant-Respondent. )
Appeal from the District Court of the First Judicial District of the State of
Idaho, Kootenai County. Hon. Michael J. Griffin, District Judge.
The judgment of the district court is affirmed.
Mark A. Jackson, P.A., Coeur d’Alene, for appellant. Mark Jackson argued.
Flammia & Solomon, P.C., Coeur d’Alene, for respondent. Anne Solomon
argued.
_______________________________________________
HORTON, Justice.
Nancy Shepherd (Nancy) appeals from the district court’s decision affirming the
magistrate court’s final decision granting in part and denying in part her motion to modify a
decree of divorce. Nancy contends that the district court erred by refusing to set aside John
Shepherd’s (John) visitation under a divorce decree because the magistrate court lacked subject
matter jurisdiction to award custody rights to a non-parent and the child’s biological father,
Ralph Bartholdt (Ralph), was not a party to the divorce. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Nancy and John were married in 2001. In 2005, R.R.B. was born. It is undisputed that
John is not R.R.B.’s biological father. Nancy, John, and R.R.B. lived together as a family for the
first three years of R.R.B.’s life. In 2008, Ralph obtained a decree of filiation, custody, visitation
and support from the magistrate court in Benewah County. The decree declared that Ralph was
R.R.B.’s biological father, awarded joint legal custody of R.R.B. to Nancy and Ralph, awarded
primary physical custody to Nancy, and provided Ralph with scheduled “on-duty parenting
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time.” John was not a party to the filiation action. In 2009, Nancy and John divorced. At the time
of the divorce, Nancy and John stipulated that John had an important relationship with R.R.B.
and agreed that John would have visitation with R.R.B. Ralph was not a party to the divorce
proceedings. In 2010, Ralph began living with Nancy and R.R.B.
On February 6, 2012, Nancy filed a petition to modify the decree of divorce. Nancy
sought to eliminate John’s right to visitation with R.R.B., arguing that Ralph had not been a party
to the divorce action and that R.R.B.’s biological parents had the right to raise him without
interference from John. Nancy further contended that substantial, permanent, and material
changes in circumstances had occurred which warranted ending John’s visitation. Ralph sought
to intervene in the modification proceedings. A hearing was held on Ralph’s motion to intervene
but, before the magistrate court’s decision was issued, Ralph withdrew his motion. Despite
Ralph’s attempt to withdraw his motion, the magistrate court issued an order denying the motion
to intervene.
Although the petition to modify was still pending, on December 12, 2012, Nancy filed a
motion to set aside the custody order in the divorce decree. The magistrate court held a hearing
on the motion and denied the motion to set aside the custody order on January 30, 2013.
Nancy appealed the magistrate court’s denial of her motion to set aside the custody order
to the district court. The district court stayed the appeal until the petition to modify the decree of
divorce had been decided.
The magistrate court conducted a four-day trial on Nancy’s petition to modify the divorce
decree on various dates in late 2013 and early 2014. On June 12, 2014, the magistrate court
issued a decision in which it granted Nancy’s petition in part and denied it in part. The magistrate
court found that there had been a substantial, permanent, and material change of circumstances
that warranted a reduction in John’s visitation with R.R.B. but the magistrate court denied
Nancy’s request to terminate John’s visitation rights entirely. The magistrate court’s judgment
was filed contemporaneously with its decision. Nancy filed a timely second amended notice of
appeal to the district court. On January 5, 2015, the district court issued its opinion affirming the
magistrate court’s rulings in all respects. Nancy timely appealed from the district court’s
decision.
II. STANDARD OF REVIEW
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“On appeal of a decision rendered by a district court while acting in its intermediate
appellate capacity, this Court directly reviews the district court’s decision.” In re Estate of
Peterson, 157 Idaho 827, 830, 340 P.3d 1143, 1146 (2014) (quoting Idaho Dep’t of Health &
Welfare v. McCormick, 153 Idaho 468, 470, 283 P.3d 785, 787 (2012)).
The Supreme Court reviews the trial court (magistrate) record 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. If those findings are so supported and the conclusions follow
therefrom and if the district court affirmed the magistrate’s decision, we affirm
the district court’s decision as a matter of procedure.
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)). “Thus, this Court does not review the decision
of the magistrate court. Rather, we are procedurally bound to affirm or reverse the decisions of
the district court.” Pelayo v. Pelayo, 154 Idaho 855, 859, 303 P.3d 214, 218 (2013) (internal
citations and quotations omitted). “We exercise free review over the issues of law decided by the
district court to determine whether it correctly stated and applied the applicable law.” State Dep’t
of Health & Welfare v. Slane, 155 Idaho 274, 277, 311 P.3d 286, 289 (2013). “This Court freely
reviews constitutional questions.” State v. Doe, 148 Idaho 919, 924, 231 P.3d 1016, 1021 (2010).
III. ANALYSIS
Nancy argues that the district court erred by refusing to void John’s visitation rights
under the divorce decree. Nancy contends: (1) Idaho courts have the power to declare a judgment
void and unenforceable if the judgment was entered without jurisdiction; (2) there was no legal
basis under Idaho law for the magistrate court to have granted John visitation rights to R.R.B.;
and (3) because Ralph was not a party to the divorce or modification proceedings, any orders or
judgments relating to John’s visitation rights to R.R.B. are void.
“Generally, final judgments, whether right or wrong, are not subject to collateral attack.
However, under I.R.C.P. 60(b)(4) a court may relieve a party or his legal representative from a
final judgment, order, or proceeding because the judgment is void. This Court narrowly
construes what constitutes a void judgment.” Jim & Maryann Plane Family Trust v. Skinner, 157
Idaho 927, 933, 342 P.3d 639, 645 (2015) (internal quotations and citations omitted) (emphasis
original). This Court has outlined three circumstances in which a judgment will be found to be
void:
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In order for a judgment to be void, there must generally be some
jurisdictional defect in the court’s authority to enter the judgment, either [1]
because the court lacks personal jurisdiction or [2] because it lacks jurisdiction
over the subject matter of the suit. A judgment is also void where it is [3] entered
in violation of due process because the party was not given notice and an
opportunity to be heard.
Id. (bracketing in original) (quoting McGrew v. McGrew, 139 Idaho 551, 558, 82 P.3d 833, 840
(2003) (internal citations omitted)). As Nancy does not contend that the magistrate court lacked
personal jurisdiction, we consider only issues relating to subject matter jurisdiction and due
process.
A. The divorce decree and child custody determination are not void for lack of subject
matter jurisdiction.
Nancy argues that “there was no legal basis under Idaho law for any court to have granted
John custody rights to [R.R.B.], either in the 2009 Decree or in any subsequent proceedings in
this case.” Nancy reasons:
Idaho law provides six distinct proceedings or methods where parents
can be deprived of their custody rights to their child, thereby theoretically
allowing a non-parent to gain custody rights in an order. Five of these
proceedings are based on statute; one is based on case law.
 First, I.C. § 32-719 allows the courts to give grandparents reasonable
visitation rights under certain circumstances.
 Second, I.C. § 16-1501, et seq. allows the courts to enter adoption
orders.
 Third, I.C. § 16-1601, et seq. allows the court to enter orders in child
protection actions for children subject to child abuse, abandonment,
neglect, or endangerment.
 Fourth, I.C. § 15-5-202, et seq. allows the appointment of guardians of
minors where children are neglected, abused, abandoned, or where the
parents cannot provide a stable home environment.
 Fifth, the De Facto Custodian Act, I.C. § 32-1701, et seq.
 Sixth, Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989)
gives non-parents the ability to obtain custody rights in limited, narrow
circumstances.
(emphasis original). Nancy contends that both the magistrate court and district court erred in
their decisions and rulings after applying Stockwell to the facts of this case. Nancy’s argument
proceeds as follows:
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The Magistrate and District Court in this case misused and misapplied the
Stockwell “appreciable time” concept to give John custody rights of RB. . . .The
Magistrate and District court in this case have far exceeded the underlying intent
of Stockwell, Ewing, Altmiller, and Hernandez. . . . The ruling of the Magistrate
and District Court misapplies Stockwell and other related case law, and in fact
this will totally change the dynamics of custody/visitation rights of non-parents. . .
. The District Court correctly stated that non-parents of a child may be granted
visitation or custody “only pursuant to statutory authority” (memorandum
Opinion, p. 4), but then the District Court misread or misapplied Stockwell. . . .
The above cases further demonstrate how Stockwell was applied in this case.
(emphasis original). Nancy concludes that “any custody rights of John in the Decree, the Final
Judgment Granting Relief in Part and Denying Relief in Part, dated June 12, 2014, and the Final
Decision Re: Trial, Dated June 12, 2014, should be deemed void.” We disagree.
Nancy’s argument is fundamentally flawed. Whether the magistrate court and subsequent
district court decisions correctly applied the legal principles discussed in Stockwell has no
bearing on the question whether the courts lacked subject matter jurisdiction. “A judgment that
incorrectly interprets a rule of law does not divest the court of jurisdiction over the subject matter
or over the parties.” Gordon v. Gordon, 118 Idaho 804, 807, 800 P.2d 1018, 1021 (1990).
“Jurisdiction is the power to decide erroneously as well as correctly. If the judgment is
erroneous, the unsuccessful party’s remedy is to have it set aside or reversed in the original
proceeding.” State, Dep’t of Health & Welfare v. Housel, 140 Idaho 96, 101, 90 P.3d 321, 326
(2004) (internal citations and quotations omitted). In Gordon, we explained:
In the sound interest of finality, the concept of void judgment must be
narrowly restricted. And it is.
By jurisdiction over the subject matter the cases mean that the court must have
jurisdiction or power to deal with the class of cases in which it renders judgment. .
. . In brief, then, except for the rare case where power is plainly usurped, if a court
has the general power to adjudicate the issues in the class of suits to which the
case belongs then its interim orders and final judgments, whether right or wrong,
are not subject to collateral attack, so far as jurisdiction over the subject matter is
concerned.
Gordon, 118 Idaho at 807, 800 P.2d at 1021 (quoting 7 Moore’s Federal Practice and
Procedure, ¶ 60.25[2], p. 60–225–230 (1990)).
This reasoning is not unique; we have repeatedly held that “a district court has not only
jurisdiction in divorce proceedings, but continuing jurisdiction over questions involving the
custody of minor children.” Dey v. Cunningham, 93 Idaho 684, 686, 471 P.2d 71, 73 (1970).
Idaho Code section 32-11-102(c) defines a “child custody determination” as “a judgment, decree,
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or other order of a court providing for the legal custody, physical custody or visitation with
respect to a child.” I.C. § 32-11-102(c). Idaho Code section 32-717(1) provides: “In an action for
divorce the court may, before and after judgment, give such direction for the custody, care and
education of the children of the marriage as may seem necessary or proper in the best interests of
the children.” I.C. § 32-717(1). “In Idaho, the child’s best interest is of paramount importance in
child custody decisions.” Bartosz v. Jones, 146 Idaho 449, 454, 197 P.3d 310, 315 (2008).
“Accordingly, the best interest standard governs decisions regarding where a child will reside.”
Id.
In Stockwell, we held: “In custody disputes between a ‘non-parent’ (i.e., an individual
who is neither legal nor natural parent) and a natural parent, Idaho courts apply a presumption
that a natural parent should have custody as opposed to other lineal or collateral relatives or
interested parties.” Stockwell, 116 Idaho at 299, 775 P.2d at 613. This presumption is overcome
if the non-parent demonstrates: (1) the natural parent has abandoned the child; (2) the natural
parent is unfit; or, (3) the child has been in the non-parent’s custody for an appreciable period of
time. Id. The court then applies a best interest of the child analysis. Id.
Here, Nancy’s argument does not support her claim of error. She makes no effort to
explain why the order of filiation, which was entered in a proceeding where John was not a
party, might extinguish his parental rights to a child born to his wife during the marriage. More
importantly, even if both the magistrate and district courts incorrectly applied Stockwell, such
legal error did not divest the magistrate court of subject matter jurisdiction to decide questions of
John and Nancy’s rights to custody of, and visitation with, R.R.B. in the original divorce
proceeding or subsequent modification proceeding.
B. Nancy lacks standing to argue that the decree of divorce and custody determination is
void because it violated of Ralph’s due process rights.
On appeal, Nancy argues that because Ralph was not a party to any of the proceedings,
any orders or judgments relating to R.R.B. from those proceedings should be deemed void.
Nancy concludes, “[a] judgment is void where it is entered in violation of due process because
the party was not given notice and an opportunity to be heard.”
“Jurisdictional issues, like standing, are questions of law, over which this Court exercises
free review.” In re Jerome Cnty. Bd. of Comm’rs, 153 Idaho 298, 308, 281 P.3d 1076, 1086
(2012). “[Q]uestions of jurisdiction . . . must be addressed prior to reaching the merits of an
appeal.” Taylor v. Maile, 146 Idaho 705, 709, 201 P.3d 1282, 1286 (2009). “The issue of
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whether a party has standing to assert a particular claim should be resolved before the merits of
the claim are reached.” State v. Doe, 148 Idaho 919, 936, 231 P.3d 1016, 1033 (2010).
Nancy does not have standing to bring an action to void a judgment based on a violation
of Ralph’s due process rights. In State v. Doe, we discussed the requirements established by the
U.S. Supreme Court for a party to assert the constitutional rights of another party:
Courts must hesitate before resolving the rights of those not parties to
litigation. Singleton v. Wulff, 428 U.S. 106, 113, 96 S. Ct. 2868, 2873–74, 49
L. Ed. 2d 826, 832–33 (1976). Even though a potentially illegal action may affect
the litigant as well as a third party, the litigant may not rest his claims on the
rights or legal interests of the third party. Dep’t of Labor v. Triplett, 494 U.S. 715,
720, 110 S. Ct. 1428, 1431–32, 108 L. Ed. 2d 701, 713 (1990). . . . This requirement
is based on the presumption that the third parties themselves are the best
proponents of their own rights. Singleton, 428 U.S. at 113–14, 96 S.Ct. at 2873–
74, 49 L. Ed. 2d at 832-33.
As a result, the U.S. Supreme Court requires a litigant who seeks to assert
the rights of another party to demonstrate three interrelated criteria: (1) he must
have suffered injury in fact, providing a significantly concrete interest in the
outcome of the matter in dispute; (2) he must have a sufficiently close relationship
to the party whose rights he is asserting; and (3) there must be a demonstrated bar
to the third parties’ ability to protect their interests. Powers v. Ohio, 499 U.S. 400,
411, 111 S. Ct. 1364, 1370–71, 113 L. Ed. 2d 411, 425–26 (1991).
Id. at 936, 231 P.3d at 1033.
Here, there is no basis upon which we can conclude that Nancy has standing to pursue
this claim based on an alleged violation of Ralph’s constitutional due process rights. Nothing in
the record demonstrates a bar to Ralph’s ability to protect his own interest in this matter; indeed,
Ralph’s request to withdraw his motion to intervene in the modification proceedings
demonstrates his lack of interest in vindicating any rights he might have. We hold that Nancy is
without standing to assert a claim that Ralph’s due process rights were violated as a basis for
invalidating the custody provisions of the divorce decree.
1. Nancy’s claim that Ralph was an indispensable party is not properly before
this Court.
Nancy’s reply brief advances a new argument:
Ralph should have been made a party to the original divorce case between
Nancy and John. Ralph should have been made a party to the motion to modify. It
is not Ralph’s responsibility to inject himself into these actions; it was the
responsibility of [John] or the court to make Ralph a party because he is a parent
of RB. Ralph was an indispensable party in both cases.
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We will not consider arguments raised for the first time in an appellant’s reply brief. “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.” Suitts v. Nix, 141 Idaho 706, 708, 117 P.3d 120, 122 (2005). “Consequently,
this Court will not consider arguments raised for the first time in the appellant’s reply brief.”
Myers v. Workmen’s Auto Ins. Co., 140 Idaho 495, 508, 95 P.3d 977, 990 (2004). Further, Nancy
did not cite to legal authority in support of her claim that Ralph was an indispensable party, nor
did she attempt to explain the legal significance of a judgment entered in the absence of an
indispensable party. “[A] party waives an appellate issue that is not supported with relevant
argument or authority.” Akers v. Mortensen, 160 Idaho 286, 288, 371 P.3d 340, 342 (2016). For
these reasons, this argument is not properly before this Court and we will address it no further.
C. Nancy’s final assignment of error is too vague to be decided by this Court.
Nancy argues that the district court erred in not terminating John’s custody rights to
R.R.B. due to “the events which occurred since the original decree.” Specifically, Nancy presents
“four primary reasons that John’s custody rights should have been terminated or extinguished
even if the court had jurisdiction.” Nancy contends:
First, the new GAL, Kacey Wall, concluded that John was acting very
inappropriately since the Decree. Second, Nancy presented numerous evidence of
John interfering ed [sic] with Nancy and Ralph’s ability to raise [R.R.B.]. Third,
although John did not complain to Kacey Wall about Ralph’s parenting with
[R.R.B.], at trial he tried to introduce evidence of Ralph being a bad father (while
at the same time he did not want to include him as a party). Fourth, the testimony
of John’s “experts” at trial only further demonstrate John’s custody rights should
be terminated.
Nancy has not presented any clear assignment of error or sufficient argument for this
Court to consider this claim. Nancy does not point to any evidentiary or legal errors in the
magistrate court’s decisions. Likewise, she does not attempt to identify any legal error by the
district court.
Where an appellant fails to assert his assignments of error with
particularity and to support his position with sufficient authority, those
assignments of error are too indefinite to be heard by the Court. A general attack
on the findings and conclusions of the district court, without specific reference to
evidentiary or legal errors, is insufficient to preserve an issue.
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Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010) (internal citations omitted).
Nancy’s argument is simply too vague and unsupported for this Court to determine the existence
of any error.
D. John is entitled to attorney fees on appeal.
Both parties request attorney fees on appeal. Nancy requests attorney fees under Idaho
Code sections 12-120 and 12-121, or alternatively that this court “order the Magistrate to
conduct a hearing on the respective attorney fees and resources of the parties and the ability of
John to pay for Nancy’s attorney fees given the fact that John has substantially more income than
Nancy.” John requests attorney fees pursuant to Idaho Code section 12-121, arguing that Nancy
“fails to present any significant issues regarding a question of law, she fails to show that the
findings are unsupported by substantial evidence, and she does not ask this court to establish any
new legal standard.”
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 . . . .” Nancy has not prevailed in this
appeal and therefore is not entitled to an award of fees. John has prevailed, leaving only the
question whether he is entitled to an award of fees.
As we announced in Hoffer v. Shappard, Docket No. 42087, this Court will apply a new
standard to requests for attorney fees that complies with express legislative intent, effective
March 1, 2017. Until the effective date of the rescission of Idaho Rule of Civil Procedure
54(e)(2), we will apply the current standard for an award of attorney fees under Idaho Code
section 12-121 and we decide John’s request under that standard. “To receive an I.C. § 12-121
award of fees, the entire appeal must have been pursued frivolously, unreasonably, and without
foundation.” Snider v. Arnold, 153 Idaho 641, 645–46, 289 P.3d 43, 47–48 (2012). “Such
circumstances exist when an appellant has only asked the appellate court to second-guess the
trial court by reweighing the evidence or has failed to show that the trial court incorrectly applied
well-established law.” City of Boise v. Ada Cnty., 147 Idaho 794, 812, 215 P.3d 514, 532 (2009).
“Ordinarily, attorney fees will not be awarded where the losing party brought the appeal in good
faith and where a genuine issue of law was presented.” Nelson v. Nelson, 144 Idaho 710, 718,
170 P.3d 375, 383 (2007). We find that Nancy’s appeal has been pursued frivolously,
unreasonably, without foundation, and she has failed to show that the lower courts incorrectly
applied well-established law. Therefore, we award attorney fees on appeal to John.
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IV. CONCLUSION
We affirm the district court’s decision. We award attorney fees and costs to John.
Chief Justice J. JONES and Justices EISMANN, BURDICK and W. JONES, CONCUR.
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