Pace v. Pace

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 47266
LACY PACE, nka LACY MILLER, )
) Filed: December 13, 2019
Petitioner-Appellant, )
) Karel A. Lehrman, Clerk
v. )
) THIS IS AN UNPUBLISHED
WESTON ALAN PACE, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Respondent. )
)
Appeal from Magistrate Division of the District Court of the Seventh Judicial
District, State of Idaho, Fremont County. Hon. Faren Z. Eddins, Magistrate.
Judgment, affirmed.
Smith Woolf Anderson & Wilkinson, PLLC; Zachary D. Lords, Idaho Falls, for
appellant. Zachary D. Lords argued.
The Law Office of Joshua A. Garner, PLLC; Joshua A. Garner, Rexburg, for
respondent. Joshua A. Garner argued.
________________________________________________
HUSKEY, Judge
Lacy Pace (Lacy) appeals from the magistrate court’s judgment granting Weston Alan
Pace (Weston) primary physical custody of their two children. Lacy argues the magistrate
court’s decision constituted an abuse of discretion because it failed to make sufficient and correct
factual findings, did not properly consider Idaho Code § 32-717’s statutory factors related to
child custody determinations, and erred in the manner it placed the decision into the record.
Weston contends the magistrate court did not err because its factual findings were supported by
substantial evidence and the magistrate court considered the best interests of the children in
making its custody determination.
Because the magistrate court’s factual findings were supported by substantial evidence
and it considered the statutory and other relevant factors in determining the best interests of the
1
children, the magistrate court acted within the bounds of its discretion when it modified the
custody order. Accordingly, we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to their divorce in 2016, Lacy and Weston had two children together. Upon
divorcing, both parents were awarded joint legal and physical custody of the minor children.
The custody agreement took into account Weston’s work schedule at a concrete mill, which
cyclically employs workers for twelve-hour shifts during the summer months and lays them off
once winter begins. From November through March, the children alternated spending one week
with Lacy and one week with Weston. From April through October, the children resided with
Lacy during the week and with Weston three weekends per month.
Since the divorce, Lacy remarried and her husband accepted employment near Las
Vegas, Nevada. Lacy filed a petition to modify the custody agreement, asking the magistrate
court to allow the children to relocate to Nevada and to grant Lacy primary physical custody
during the school year, with Weston having primary physical custody during the summers and
major school breaks. 1 Lacy asserted the move represented a material and substantial change of
circumstances that warranted a custody modification and the proposed modification was in the
best interests of the children. Weston filed a counterclaim, acknowledging the change in
circumstances and asking the court to award him physical custody during the school year, with
Lacy receiving custody during the summer and major school breaks.
The magistrate court held a day-long trial and heard testimony from seven witnesses.
The parties waived closing arguments and rested on the evidence presented. Three days later,
the court orally pronounced its decision. The court found that Lacy’s move to Nevada was a
substantial and material change of circumstances that warranted a modification to the previous
custody order. The magistrate court orally made approximately sixty factual findings, many of
which reflected positively on Lacy’s and Weston’s parenting and the respective benefits to the
children living in Idaho or Nevada. The court articulated the factors of I.C. § 32-717 that may
influence a child custody determination and additional factors the court found relevant; explained
1
Additionally, the petition asked the magistrate court to modify orders related to child
support, daycare expense, income tax benefits, and health insurance and to find Weston
responsible for Lacy’s attorney fees if he contested the matter.
2
the context in which it considered those factors and the facts it believed were relevant to those
factors; and acknowledged the difficulty of its decision. The court ultimately determined that
remaining in Idaho would promote the continuity and stability that was in the children’s best
interests. Consequently, the magistrate court granted Weston primary physical custody of the
children during the school year, with Lacy receiving primary physical custody during the
summer and major school breaks. The court stated:
[U]ltimately what it comes down to for me is that I feel that the stability of both
[children] will be promoted if the children stay here in this area, have the
extended family, have the familiarity with the school that they’re in and so forth.
I find that the relationship with [Weston] is such that [it] will be helpful and
healthy. I also find that based upon the schedules, it makes more sense because
both parties agreed that [Weston] generally works a lot more in the summer than
he does in the wintertime.
Lacy timely appeals.
II.
STANDARD OF REVIEW
This case is on direct permissive appeal from a decision of a magistrate court affecting
the custody of minor children; therefore, this Court is directly reviewing the decision without the
benefit of a district court appellate decision. The awarding of custody of minor children rests
within the discretion of the trial court. Roberts v. Roberts, 138 Idaho 401, 403, 64 P.3d 327, 329
(2003). When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the lower court: (1) correctly perceived the
issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted
consistently with any legal standards applicable to the specific choices before it; and (4) reached
its decision by an exercise of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d
187, 194 (2018).
A trial court’s award of custody of minor children will not be overturned on appeal
absent an abuse of discretion. Roberts, 138 Idaho at 403, 64 P.3d at 329. “A trial court abuses
its discretion when its findings are clearly erroneous such that the court’s findings are not based
on substantial and competent evidence.” Schneider v. Schneider, 151 Idaho 415, 420, 258 P.3d
350, 355 (2011). For decisions regarding a child custody award or modification, an abuse of
discretion occurs when the evidence is insufficient to support a magistrate court’s conclusion
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that the interests and welfare of the children would be best served by the magistrate court’s
order. Nelson v. Nelson, 144 Idaho 710, 713, 170 P.3d 375, 378 (2007).
III.
ANALYSIS
On appeal, Lacy alleges the magistrate court’s decision constituted an abuse of discretion
because it failed to make sufficient findings, did not properly consider the statutory factors
related to child custody determinations, and erred in orally placing the findings of fact and
conclusions of law into the record. In response, Weston contends the magistrate court did not err
because its factual findings were supported by substantial evidence and it considered the best
interests of the children in making its custody determination. Both parties seek attorney fees.
A. The Magistrate Court Did Not Err in the Manner It Placed the Decision Into the
Record
As a preliminary issue, Lacy argues the magistrate court erred in placing the decision
orally into the record instead of making written findings and conclusions. She also argues the
court did not take the appropriate amount of time to make a considered decision.
The Idaho Rules of Family Law Procedure require “[i]n all actions tried upon facts
without a jury or with an advisory jury, the court shall find the facts specially and state separately
its conclusions of law thereon.” I.R.F.L.P. 801. The Idaho Rules of Family Law Procedure do
not specify the manner in which the court must issue the findings and conclusions; however, the
Idaho Rules of Civil Procedure allow for a court to issue findings of fact and conclusions of law
on the record at the close of evidence or through a written opinion or memorandum decision.
I.R.C.P. 52. Oral recitation of facts and conclusions of law may offer less insight into judicial
reasoning on appeal. See Roeh v. Roeh, 113 Idaho 557, 561, 746 P.2d 1016, 1020 (Ct. App.
1987) (specifically addressing a custody decision made orally and off the record). However, it is
not necessarily error to issue a custody determination from the bench. See Nelson, 144 Idaho at
715, 170 P.3d at 380. Therefore, there is no inherent error in oral pronouncements of child
custody determinations, and Lacy has failed to establish error based solely on the fact that the
magistrate court entered oral findings.
Lacy also alleges that the magistrate court could not properly consider the complexities
of the custody determination in the three days between the trial and the issuance of its decision.
However, Lacy provides no legal or substantive basis to support her speculation. Because a
party waives an issue on appeal if either argument or authority is lacking, this issue will not be
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considered. See Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997). Even
if Lacy had provided argument, the magistrate court indicated that it took notes during the
hearing, “weighed the evidence back and forth as to credibility, as to the best interest of the
children, and so forth,” and that the case had been on its mind “for the last few days as I’ve
drafted up my thoughts, and drafted up my findings.” Thus, the record indicates the magistrate
court adequately considered the issues, regardless of the fact that the oral decision was
pronounced three days after the hearing.
B. The Magistrate Court’s Factual Findings Are Supported by Substantial Evidence
Lacy argues the magistrate court did not make sufficient factual findings that would
support granting Weston primary physical custody of the children during the school year.
Specifically, Lacy contends the magistrate court erred by failing to make factual findings on all
relevant issues, including Weston’s educational aptitude, adherence to safety, character, and
general stability, 2 as well as Lacy’s efforts to ensure the children would have continuity and
stability in Nevada. Additionally, Lacy alleges that only four of the magistrate court’s factual
findings are supportive of Weston receiving primary physical custody of the children during the
school year. Finally, Lacy argues the magistrate court incorrectly found that Weston was
actively involved in their children’s education, specifically parent-teacher conferences and one of
the children’s Individualized Education Program (IEP).
1. The magistrate court did not abuse its discretion by the absence of specific
factual findings in its decision
With respect to its factual findings, the trial court is not required to provide a lengthy
discussion on every piece of evidence and every specific factual issue involved in the case.
Browning v. Ringel, 134 Idaho 6, 14, 995 P.2d 351, 359 (2000). “As a rule, the trial judge is not
required to recite every piece of evidence and either adopt it or reject it, or to sort through and
discuss the testimony of each witness.” Id. (quoting MOORE’S FEDERAL PRACTICE 3d,
§ 52.15[2][b]).
2
Lacy argues that Weston has difficulty reading and therefore cannot adequately support
the children’s educational needs. Further, Lacy argues that the children may not be safe with
Weston; his home is located near a canal and major highways; he had previously left a gun out
on two occasions; and he does not always place the children in proper safety restraints in a
vehicle. Lacy also contends that the magistrate court should have addressed Weston’s previous
criminal history, failure to make equity payments for property in the divorce, previous in-town
moves, practice of not using a bank account, and unmarried status.
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Therefore, the fact that a party sincerely contended for a position does not mandate that
the trial court must make a finding on that position. Browning, 134 Idaho at 14, 995 P.2d at 359.
Although a factual finding may be of great concern for a particular party in a custody
proceeding, a trial court may determine that it holds little significance. See King v. King, 137
Idaho 438, 444, 50 P.3d 453, 459 (2002) (holding that magistrate court did not abuse its
discretion in failing to weigh husband’s mental illness against awarding him primary physical
custody of parties’ child in divorce action where substantial and competent evidence in the
record indicated the husband’s mental illness did not affect his parenting ability).
If a party is concerned about the lack of specific factual findings, the Idaho Rules of
Family Law Procedure provide an avenue for a party to request the trial court amend or make
additional factual findings by filing a motion no later than fourteen days after entry of the
judgment. I.R.F.L.P. 802. Although the sufficiency of the evidence to support the findings may
be raised on appeal without raising the issue with the trial court, “[n]o party may assign as error
the lack of findings unless the party raised such issue to the trial court by an appropriate motion.”
I.R.F.L.P. 802.
Here, although the trial court is not required to make factual findings related to every
piece of testimony presented at trial, Lacy alleges the magistrate court abused its discretion by
not making specific findings of fact related to her testimony concerning Weston’s educational
aptitude, adherence to safety, character, and other facts concerning his general stability, as well
as Lacy’s efforts to ensure the children would have continuity and stability in Nevada. However,
Lacy never filed a motion with the magistrate court requesting it to amend or make additional
findings. Therefore, this issue is not preserved for appellate review. See Sanchez v. Arave, 120
Idaho 321, 322, 815 P.2d 1061, 1062 (1991) (holding that, generally, issues not raised below
may not be considered for the first time on appeal).
2. The magistrate court’s decision included substantial factual findings that are
supportive of Weston
Lacy contends the magistrate court’s factual findings were insufficient, both
quantitatively and qualitatively, to support its decision to award primary physical custody to
Weston. Lacy alleges only four of the magistrate court’s factual findings are supportive of
Weston, and Lacy further argues that, pursuant to Searle v. Searle, 162 Idaho 839, 405 P.3d 1180
(2017), three of these factual findings were insufficient to constitute findings of fact because they
were simply recitations of testimony. In response, Weston argues the magistrate court made
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sufficient factual findings to support its decision to grant Weston primary physical custody
during the school year.
A factual finding is a determination of a fact that is supported by evidence in the record.
Id. at 846, 405 P.3d at 1187. A statement by the trial court that simply recites portions of the
record through language indicating that a party testified, contended or reported a fact to the
court, may be evidence a court can use to support a finding of fact but is not a finding of fact
itself. Id. Therefore, a decision that rests solely upon recitations of testimony, instead of factual
determinations, may constitute an abuse of discretion. See id.
Additionally, the evidence must support a magistrate court’s conclusion that the interests
and welfare of the children would be best served by the magistrate court’s order. Nelson, 144
Idaho at 713, 170 P.3d at 378. “Substantial evidence is more than a scintilla of proof, but less
than a preponderance. It is relevant evidence that a reasonable mind might accept to support a
conclusion.” Christy v. Grasmick Produce, 162 Idaho 199, 201-02, 395 P.3d 819, 821-22
(2017). Substantial evidence does not require that the evidence be uncontradicted. SilverWing at
Sandpoint, LLC v. Bonner Cnty., 164 Idaho 786, 794, 435 P.3d 1106, 1114 (2019). Rather, the
evidence need only be of sufficient quantity and probative value that reasonable minds could
conclude that the fact finder’s conclusion was proper. Id.
As in all evidentiary matters, a trial court may determine some factual findings to be
more significant than others; therefore, the quantity of factual findings is not a substitute for the
quality of evidence or a proxy for the court’s thoughtful assessment of the best interests of the
child. Here, the magistrate court made sufficient factual findings that supported its decision to
award primary physical custody to Weston.
The magistrate court did occasionally indicate that it was reciting testimony in its
findings of fact by stating that “there was testimony” to the fact, instead of making a clear factual
determination. Assuming without deciding that this constituted error, the record demonstrates
the magistrate court made other substantial factual findings that supported awarding Weston
primary physical custody, and these findings were not subject to this potential legal flaw. The
magistrate court found: Weston finds education important for the children; is involved in the
children’s schooling, including participation in parent-teacher conferences, assistance with
homework, and involvement in an IEP for one of the children; attends the children’s medical
appointments; has maintained steady employment with the same employer for the past five
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years; has recently been given a raise; is in a steady relationship with a partner who has a good
relationship with the children; lives in an area where the children are surrounded by extended
family members; facilitates the children’s visitation with extended family members; is involved
in providing discipline for the children; and communicates well with Lacy. Significantly, the
court also found the children have benefited from a custody schedule that involved the children
spending a substantial amount of time with Weston. Therefore, the magistrate court made
substantial factual findings that supported granting Weston primary physical custody of the
children.
3. The magistrate court’s factual findings were not clearly erroneous
Finally, Lacy alleges the magistrate court’s factual findings related to Weston’s
involvement in the children’s education were not supported by sufficient evidence. Lacy alleges,
based on her testimony, the magistrate court should have found that Weston was not actively
involved in the children’s educational needs, parent-teacher conferences, or the IEP for one of
the children.
A magistrate court’s findings of fact will be upheld if they are supported by substantial
and competent evidence and are not clearly erroneous. Danti v. Danti, 146 Idaho 929, 934, 204
P.3d 1140, 1145 (2009). When reviewing a magistrate court’s findings of fact, this Court views
the evidence in favor of the magistrate court’s judgment and will uphold the magistrate court’s
findings even if there is conflicting evidence. Id. This Court “will not make credibility
determinations or replace the trial court’s factual findings by reweighing the evidence.” Id.
Here, although Lacy alleges that Weston is not actively involved in the children’s
education, Weston disputed this testimony at trial. Weston testified that he helps the children
with homework and attends parent-teacher conferences when he receives notification. Further,
Lacy acknowledged that Weston previously attended an IEP meeting when Lacy was out of town
and Weston recently attended the meetings on a regular basis. The magistrate court weighed the
testimony presented, assessed credibility, and determined that Weston was actively involved in
the children’s education. Even though there was contradictory testimony about Weston’s
participation in the children’s education, that does not preclude a finding by the magistrate court
that Weston was an active participant. See SilverWing, 164 Idaho at 794, 435 P.3d at 1114.
Although the magistrate court acknowledged that Weston’s participation in the IEP may have
increased since the change of custody proceedings began, the court stated this correlation was
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not a significant issue. It is the magistrate court’s role to make credibility determinations, and its
finding that Weston was an active participant in the children’s education is supported by
evidence in the record. These findings will not be disturbed on appeal.
C. The Magistrate Court Considered the Best Interests of the Children When It
Awarded Weston Primary Physical Custody
A court abuses its discretion when there is not sufficient evidence to support the court’s
finding regarding the best interests of the child. Brownson v. Allen, 134 Idaho 60, 63, 995 P.2d
830, 833 (2000). Lacy alleges the magistrate court abused its discretion by providing
nonexistent or insufficient analysis of the statutory factors of I.C. § 32-717. Weston argues the
magistrate court properly considered the best interests of the children when making its custody
decision, adequately assessed each factor of I.C. § 32-717, and created a custody arrangement
that would fulfill the joint custody presumption of I.C. § 32-717B by considering the effect of
Weston’s employment schedule on his ability to have frequent and continual physical custody of
the children for significant periods of time.
When a move would violate an existing custody arrangement, the parent seeking
permission to relocate with the child has the burden of proving that the relocation is in the
best interest of the child. Roberts, 138 Idaho at 405, 64 P.3d at 331. The factors listed in
I.C. § 32-717 provide guidance in determining whether relocating is in the best interest of the
child. Bartosz v. Jones, 146 Idaho 449, 454, 197 P.3d 310, 315 (2008). Idaho Code § 32-717
provides that the trial court shall consider all relevant factors in making this determination,
which may include: the parents’ wishes for the child’s custody; the child’s wishes; the
interrelationship and interaction of the child with his or her parents and siblings; the extent the
child has adjusted to his or her school, home, and community; the circumstances and character of
the persons involved; the need to promote continuity and stability in the child’s life; and
domestic violence. I.C. § 32-717(1)(a)-(g).
Courts have consistently held that the list of factors in I.C. § 32-717 is neither exhaustive
nor mandatory. Bartosz, 146 Idaho at 454, 197 P.3d at 315; Peterson v. Peterson, 153 Idaho
318, 322, 281 P.3d 1096, 1100 (2012). Because trial courts must consider all relevant factors
when evaluating the best interest of the child, see Bartosz, 146 Idaho at 454, 197 P.3d at 315,
while avoiding consideration of irrelevant factors, see Hoskinson v. Hoskinson, 139 Idaho 448,
455, 80 P.3d 1049, 1056 (2003), a rigid analytical framework is not appropriate. A “trial court is
not asked simply to check off the considerations listed in the statute,” but rather is required to
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consider the factors that are relevant to the decision. Nelson, 144 Idaho at 715, 170 P.3d at 380.
Although a child custody case involving relocation may require courts to consider relevant
factors outside of those specified by I.C. § 32-717, a preapproved laundry list of factors for
relocation cases does not exist. Markwood v. Markwood, 152 Idaho 756, 761, 274 P.3d 1271,
1276 (Ct. App. 2012).
When assessing the best interest of the child, the “trial court must avoid assigning too
much weight to any particular factor.” Hoskinson, 139 Idaho at 455, 80 P.3d at 1056. A court
abuses its discretion when it overemphasizes any one factor or fails to address all relevant
factors. Markwood, 152 Idaho at 761, 274 P.3d at 1276. A cursory analysis may constitute an
abuse of discretion. See Searle, 162 Idaho at 847, 405 P.3d at 1188. However, a trial court need
not engage in a detailed analysis of factors that were not supported by evidence nor had little
effect in the court’s analysis. Markwood, 152 Idaho at 761-62, 274 P.3d at 1276-77. Where
every other factor is neutral, it is appropriate for the court to base the custody decision on only
one factor if that factor is found to weigh in favor of one parent over the other. Schneider, 151
Idaho at 425, 258 P.3d at 360.
Here, the magistrate court considered the relevant factors when deciding that granting
Weston primary custody would be in the best interests of the children. The magistrate court
followed the framework provided by the factors of I.C. § 32-717 in presenting its conclusions of
law. Although Lacy alleges that the magistrate court’s cursory analysis of some of the factors of
I.C. § 32-717 constituted an abuse of discretion, the magistrate court considered each factor to a
degree proportionate to the court’s assessment of its relevance to the matter presented. For
example, because allegations of domestic violence were not present during the trial, the
magistrate court found this factor to be inapplicable to its analysis. For factors in which
testimony was provided but did not have much significance in the magistrate court’s decision,
like the expressed wishes of very young children, the court appropriately stated the factor was
not relevant to its determination. For factors that had factual support and legal significance but
equally favored both Lacy and Weston, like the wishes of each parent and the children’s
interaction and interrelationship with parents and siblings, the court acknowledged the neutrality
of the particular factor in its determination of the best interests of the children.
However, for the statutory factors that the magistrate court determined had factual
support, had legal significance, and tended to weigh in favor of a particular custody
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determination, the court engaged in a more thorough analysis. First, the magistrate court
considered the children’s adjustment to their home, school, and community finding:
[T]he Court definitely recognizes that the children are in a healthy spot here, that
they have been going to school and, you know, there’s hiccups here, just like
there are hiccups anywhere. Some of those may include, you know, the children’s
grades could be increased. There [have] been some behavioral issues with the
children. There’s been some acrimony at times between the two parents, and so
forth.
But in the end, the Court is convinced that the children have a very good
relationship and a very good standing in the community that they’re currently in,
with their school and so forth.
Lacy argues this conclusion of law is not supported by substantial evidence in the record
because the magistrate court made no factual findings related to the children’s standing or
relationship in the community. However, in its findings of fact, the magistrate court found: the
children’s uncles and cousins live nearby; these extended family members are involved in the
children’s lives; the children’s close bond with their grandparents has been fostered by the
significant amount of time the children are able to spend with them; one of the children utilizes
local resources, including an IEP, that have provided important academic assistance; and one of
the children has been consistently seeing a counselor in the area. These facts support the
magistrate court’s conclusion that the children have a beneficial relationship with their
community.
Second, the magistrate court considered the need to promote continuity and stability in
the children’s lives. The court acknowledged that the previous custody agreement resulted in the
children spending “a little bit” more time with Lacy, and it had been beneficial to the children for
Lacy to be a primary custodian. However, it concluded:
[U]ltimately what it comes down to for me is that I feel that the stability of both
[children] will be promoted if the children stay here in this area, have the
extended family, have the familiarity with the school that they’re in and so forth.
I find that the relationship with [Weston] is such that [it] will be helpful and
healthy.
Lacy contends that this statement is not supported by substantial evidence in the record.
However, as previously discussed, the magistrate court made factual findings related to the
children’s beneficial relationships with their community that were supported by substantial
evidence at trial.
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Further, the magistrate court recognized that a parent’s work schedule may play an
important role in the continuity and stability of the children’s lives, see Markwood, 152 Idaho at
762, 274 P.3d at 1277, and determined that providing a custody arrangement that reflected the
realities of the parties’ work schedules would be beneficial to the children’s best interests. As
provided in the testimony, Lacy would not work outside the home if she lived in Nevada while
Weston works long hours in the summer but significantly less during the school year. As a
result, the magistrate court concluded:
I also find that based upon the schedules, it makes more sense because both
parties agreed that [Weston] generally works a lot more in the summer than he
does in the wintertime.
If the children were to move to Las Vegas and come up here during the
summertime, this is a beautiful place to be in the summertime, but it’s not that
beautiful if you don’t have your dad or your mom to spend that time with. And so
it makes a lot more sense to me that [Weston] would be involved in the children’s
lives throughout the school year and that the children would be down in Las
Vegas or down in Parumph during the summer and other holidays . . . .
Additionally, Lacy argues the magistrate court’s analysis of the continuity and stability
factor was largely informed by its own experiences rather than the evidence presented at trial.
During its decision, the magistrate court referenced personal childhood experiences,
acknowledging the value of economic stability, access to extended family, and continued
connection to the community with which the children were familiar. At the end of this colloquy,
the magistrate court stated that it “honestly believe[d] that regardless of the way that this
decision goes, there is validity to either way that it could be decided.” In context, the magistrate
court’s statements were not conclusions of law or significant parts of the analysis, but rather its
attempt to underscore the difficulty of the decision at hand.
Finally, the magistrate court recognized that relocation cases may require an analysis of
relevant factors that are not contained within I.C. § 32-717, including: the relocating parent’s
motive for the move; the impact of the move on the children’s relationship with the noncustodial
parent and extended family; the children’s attachment to both parents; the extent to which the
move would enhance the economic, emotional, and educational well-being of the parents and
children; and the quality of the children’s lifestyle if the relocation was allowed or denied.
However, the magistrate court recognized that many of these factors were either neutral, difficult
to assess, or would require speculation that was not supported by the record.
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Lacy further contends the magistrate court did not analyze the statutory factors correctly
because the court did not address various specific pieces of testimony presented at trial, like
Weston’s reading ability, failure to comply with a term of the divorce decree, and a previous
criminal charge. However, the magistrate court did not include these assertions in its
conclusions of law because it did not make any related factual findings pursuant to these pieces
of testimony. On appeal, Lacy may not assign error to the lack of specific factual findings
without first filing a motion in the magistrate court to reconsider the factual findings. See
I.R.F.L.P. 802.
Finally, Lacy stresses the magistrate court failed to take educational considerations into
account when making its decision, specifically Weston’s reading abilities. Although Lacy
waived consideration of Weston’s reading abilities on appeal by not requesting the magistrate
court amend its factual findings, it is important to note the magistrate court did consider how its
custody determination would impact the children’s education. The magistrate court found that
both parents find education important for the children and that both parents were involved in the
“routine stuff” like doing homework and “school things.” It further found Weston was actively
involved in the children’s educational pursuits, including helping with homework; the children
would be in a “helpful and healthy” environment with Weston during the school year; and the
community provided resources for one of the children that was helping scholastically. The
magistrate court also considered the extent to which the move would enhance the children’s
educational well-being and determined that, at least for the older child, the move would affect
him more negatively than the younger child. These factual findings have support in the record.
Thus, the magistrate court took educational considerations into account when making its child
custody determination.
The magistrate court recognized the decision to modify the custody order as one of
discretion and properly considered the relevant statutory and nonstatutory factors in assessing the
best interests of the children.
D. Neither Party Is Entitled to Attorney’s Fees
Both Lacy and Weston request attorney fees on appeal pursuant to I.C. § 12-121. This
Court will not award attorney fees “if the losing party brought the appeal in good faith and
presented a genuine issue of law.” Clearwater REI, LLC v. Boling, 155 Idaho 954, 962, 318 P.3d
944, 952 (2014). In normal circumstances, this Court will only award attorney fees if we are left
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with the abiding belief that the appeal was brought, pursued or defended frivolously,
unreasonably or without foundation. Id.
We determine Weston is not entitled to attorney fees in this case. Lacy brought the
appeal based on a good faith belief that the magistrate court abused its discretion regarding a
custody modification. Therefore, the appeal was not pursued frivolously, unreasonably, or
without foundation, and no attorney fees will be awarded.
IV.
CONCLUSION
The magistrate court recognized the decision to modify the custody order as one of
discretion, properly considered the relevant statutory and nonstatutory factors in assessing the
best interests of the children. Additionally, the magistrate court’s findings of fact were supported
by substantial evidence. Because the court did not abuse its discretion, the judgment is affirmed.
Costs on appeal are awarded to Weston.
Judge LORELLO and Judge BRAILSFORD CONCUR.
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