Nelson v. Snowball

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 48829
JULIE LYNN NELSON, aka JULIE )
LYNN SNOWBALL, ) Filed: July 28, 2022
)
Petitioner-Respondent, ) Melanie Gagnepain, Clerk
)
v. ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
MARK CASEY SNOWBALL, ) BE CITED AS AUTHORITY
)
Respondent-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Gerald F. Schroeder, Senior District Judge. Hon. Diane M. Walker,
Magistrate.
Intermediate appellate court decision affirming the magistrate court’s dismissal of
petition to modify child custody, affirmed.
Mark Casey Snowball, Idaho City, pro se appellant.
Ludwig, Miller, Johnson, Schoufler, LLP; Bret Schoufler, Boise, for respondent.
________________________________________________
GRATTON, Judge
Mark Casey Snowball appeals from a decision of the district court, on intermediate appeal
from the magistrate court, affirming the judgment dismissing his petition to modify child custody.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Snowball and Julie Nelson were divorced on September 10, 2019. Nelson was awarded
sole legal and sole physical custody of the child. Snowball was provided supervised visitation at
Nelson’s discretion. Snowball filed an appeal, but conceded that he filed six days past the forty-
two day deadline.
Snowball filed multiple motions from October 2019 to January 2020, one of which was a
petition to modify custody, visitation, and child support. Snowball reported that since the divorce
he had acquired stable residence, was awarded disability that directly pays child support to Nelson,
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is receiving treatment, and volunteers part-time at local businesses. Snowball contended
supervised visitation was no longer necessary and requested joint legal custody with unsupervised
visitation for Snowball every weekend. In response, Nelson filed a motion to dismiss or, in the
alternative, motion for summary judgment regarding custody and visitation.
The magistrate court scheduled a trial regarding who would be an appropriate supervisor
for Snowball’s supervised visitation with the child.1
During the trial, Snowball proffered testimony from Nelson, a collateral witness, and
himself. He also provided documentary evidence. At the conclusion of Snowball’s case-in-chief,
Nelson renewed her motion to dismiss, arguing that Snowball had failed to meet his prima facie
case demonstrating a substantial and material change in circumstances since the entry of the last
order, and that Snowball’s requested changes were not in the child’s best interests. The magistrate
court heard argument on the motion and took the matter under advisement.
The magistrate court subsequently entered its written findings of fact, conclusions of law
and judgment dismissing Snowball’s petition to modify custody. The magistrate court found
Snowball had failed to demonstrate that a material and substantial change of circumstance had
occurred since the last custodial order and/or that a change would be in the child’s best interests:
During the months that have past [sic] since their divorce, [Snowball] has obtained
an award from social security which verifies he has a personality disorder. His
personality disorder may help explain why there have been conflicts with the
supervisors. Conflicts with the only two agencies in this area to provide supervision
do not create a substantial material change of circumstances. Moreover,
[Snowball’s] living conditions are not stable as he had recently been evicted.
[Nelson] is still willing to offer supervised visits. There has been no evidence that
anything [Nelson] has done has caused problem[s] with either Kids Services or
Child Advocacy Services in Nampa.
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The evidentiary hearing was limited to supervised visitation based upon Snowball’s
concessions during the motion to dismiss hearing:
I think that supervised visitation is warranted. I do not object to supervised
visitation. It’s quite obvious and apparent to me that it is not in the best interest of
the child to have a 50/50 custody agreement but I do think that the child would
benefit from contact with the biological parent.
Based upon further discussion with Snowball, the magistrate court limited the trial to a
narrow issue:
I am going to let it go to trial on a very narrow issue, and the issue is supervision.
Is Kids Services, the things they’re requiring is that an appropriate requirement, are
they an appropriate supervisor or who do we use for a supervisor. Or alternatively
what do we do if there is no supervision available.
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The evidence supports continuing with supervised visits between
[Snowball] and [the child]. Allowing [Nelson] the discretion to determine when,
where, and under what terms the supervision should occur is appropriate.
After numerous motions, Snowball appealed to the district court. The district court
affirmed, agreeing that Snowball failed to show a substantial and material change. Additionally,
the district court found Snowball failed to prove his allegation of gender bias or an implicit
termination of parental rights. The district court granted Nelson attorney fees and costs. Snowball
timely appeals.
II.
STANDARD OF REVIEW
For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate court, we review the record to determine whether there is substantial and competent
evidence to support the magistrate court’s findings of fact and whether the magistrate court’s
conclusions of law follow from those findings. Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.2d
214, 217-18 (2013). However, as a matter of appellate procedure, our disposition of the appeal
will affirm or reverse the decision of the district court. Id. Thus, we review the magistrate court’s
findings and conclusions, whether the district court affirmed or reversed the magistrate court and
the basis therefore, and either affirm or reverse the district court.
An existing order or decree of child support may be modified only upon a showing of a
substantial and material change of circumstances. I.C. § 32-709(1). Therefore, a motion to modify
child support must state a substantial and material change in the moving party’s circumstances
since the last order affecting support obligations. Kornfield v. Kornfield, 134 Idaho 383, 385, 3
P.3d 61, 63 (Ct. App. 2000). In an action to modify child support, the party seeking the
modification carries the burden of proof. Humberger v. Humberger, 134 Idaho 39, 43, 995 P.2d
809, 813 (2000); Pace v. Pace, 135 Idaho 749, 752, 24 P.3d 66, 69 (Ct. App. 2001).
Modification of child support on the ground of material change in circumstances is within
the sound discretion of the trial court and will not be altered on appeal unless there is a manifest
abuse of discretion. Ireland v. Ireland, 123 Idaho 955, 959, 855 P.2d 40, 44 (1993); Margairaz v.
Siegel, 137 Idaho 556, 558, 50 P.3d 1051, 1053 (Ct. App. 2002). When a trial court’s discretionary
decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine
whether the trial 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
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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).
The party seeking custody modification has the burden of justifying a request for a change
in custody. Brownson v. Allen, 134 Idaho 60, 63, 995 P.2d 830, 833 (2000). In determining
whether to grant a custody modification, “the paramount concern is the best interest of the child.”
Id.III.
ANALYSIS
To begin, this Court must first identify what issues are appropriately on appeal. Under
Idaho Rule of Civil Procedure 83(m), a district court lacks jurisdiction over a petition for judicial
review if the petitioner fails to file the petition within the applicable deadline. If a district
court lacks jurisdiction, so too does the reviewing appellate court. Erickson v. Idaho Bd. of
Registration of Prof’l Eng’rs & Prof’l Land Surveyors, 146 Idaho 852, 854, 203 P.3d 1251, 1253
(2009) (superseded by statute on other grounds).
Here, Snowball conceded that he filed his appeal of the divorce decree six days late.
Consequently, the district court lacked jurisdiction to review the decree and in turn, no Idaho court
has jurisdiction over that final judgment. However, Snowball insists this Court should apply
equitable tolling in the best interests of the child to disregard the untimely appeal and address his
challenges to the divorce decree. Equitable tolling is not an exception to an untimely appeal of a
divorce decree and Snowball failed to provide any authority to support his argument. A party
waives an issue on appeal if either argument or authority is lacking. Powell v. Sellers, 130 Idaho
122, 128, 937 P.2d 434, 440 (Ct. App. 1997). As such, to the extent this Court comments upon
the original divorce decree, it shall not be interpreted as a review of that judgment because it is not
subject to review on appeal.2
There are more procedural issues with Snowball’s appeal. Generally, issues not raised
below may not be considered for the first time on appeal. Sanchez v. Arave, 120 Idaho 321, 322,
815 P.2d 1061, 1062 (1991). In addition, we will not consider an issue not supported by argument
and authority in the opening brief. Jorgensen v. Coppedge, 145 Idaho 524, 528, 181 P.3d 450, 454
(2008); see also I.A.R. 35(a)(6) (“The argument shall contain the contentions of the appellant with
2
Snowball also includes arguments regarding the propriety and effect of a civil protection
order entered in a separate matter. That judgment is also not directly reviewable in this appeal.
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respect to the issues presented on appeal, the reasons therefor, with citations to authorities, statutes
and parts of the transcript and the record relied upon.”). Regardless of whether an issue is
explicitly set forth in the party’s brief as one of the issues on appeal, if the issue is only mentioned
in passing and not supported by any cogent argument or authority, it cannot be considered by this
Court. Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010).
In summary, the following list of issues, including sub-arguments made thereunder, will
not be addressed because they are either untimely, unpreserved, or waived:
 The magistrate court erred by improperly delegating Snowball’s visitation rights to
Nelson’s discretion in the original divorce decree, which violates the constitutional
guarantee of parental rights, the legislative intent of Idaho Code § 32-1010-13, and
I.C. § 18-4506. Furthermore, Snowball argues it created an implied termination of his
parental rights.
 The use of the legal standard preponderance of the evidence during the divorce trial
was error because Snowball’s parental rights were implicitly terminated, which
requires a standard of clear and convincing evidence.
 The magistrate court erred because there was not substantial and competent evidence
to support ordering supervised visitation in the original divorce decree.
 The magistrate court erred by failing to designate a supervising provider under Idaho
Rules of Family Law Procedure 1003(E).
 The magistrate court failed to abide by the joint custody presumption under I.C. § 32-
717b.
 The magistrate court failed to enter findings of facts and conclusions of law, which are
required to terminate one’s parental rights. Snowball argues his parental rights were
implicitly terminated.
 The magistrate court erred by admitting inadmissible evidence during the divorce
proceedings.
 The magistrate court erred when it required supervision because the court knew
Snowball could not afford private supervision services and should have involved the
Department of Health and Welfare to provide supervision services.
 Nelson interfered with child custody prior to the divorce proceedings to create a more
favorable outcome for her custody of the child.
 The magistrate court abused its discretion when it denied Snowball’s motion to
continue the divorce trial because the court was aware that Snowball was out of state
pursuing gainful employment.
 Snowball was denied due process through lack of notice and opportunity to be heard
because he was homeless, did not receive mail, and was unable to prepare for trial.
 Nelson made false allegations to acquire a civil protection order and in turn used the
order to cause parental alienation.
 The re-issuance of the civil protection order was without lawful basis because the
magistrate court failed to find Snowball was a habitual perpetrator of domestic
violence.
 The civil protection order process is easily abused and must be addressed.
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 Nelson illegally evicted Snowball, which caused collateral consequences that affected
custody.
 Snowball’s parental rights were implicitly terminated by the continuous denials of his
post-judgment motions, none of which have found clear and convincing evidence to do
so or provided him due process.
 Nelson made false statements before the tribunal and her counsel knew her testimony
was false.
 Nelson’s counsel made false statements.
 The magistrate court erred by denying Snowball’s motion for contempt which
requested the magistrate court identify a supervising provider.
 The magistrate court erred by failing to advise Snowball of his right to provide evidence
and information regarding the manner in which the use of adaptive equipment or
supportive services will enable the parent to carry out the responsibilities of parenting
the child pursuant to I.C. § 32-717.
 The magistrate court abused its discretion when it failed to provide supportive services
to Snowball after knowing about his legitimate disability.
We now address the issues properly before this Court. In Idaho, the courts retain
jurisdiction over minor children in divorce and custody proceedings until they reach the age of
majority. McGriff v. McGriff, 140 Idaho 642, 646, 99 P.3d 111, 115 (2004). Thus, a petition for
modification can be filed at any time during the age of minority and the district court and this
Court have appellate jurisdiction as long as the appellate rules are followed. I.R.C.P. 83(b)(1)(A);
I.A.R. 14(a). Snowball has properly appealed the following issues: (1) the magistrate court erred
by not finding a substantial and material change; (2) the magistrate court erred by not identifying
a supervisor for visitation; (3) the magistrate court violated the equal protection clause;
(4) Snowball was denied a fair trial when he could not afford proper witnesses and counsel was
not provided to him, and; (5) the district court erred by ordering attorney fees. Each issue will be
addressed below.
A. Substantial and Material Change
Snowball argues the magistrate court abused its discretion when it denied his petition to
modify child custody. Modification of child custody may be ordered only when there has been a
material, substantial and permanent change of circumstances indicating to the magistrate court’s
satisfaction that a modification would be in the best interests of the child. Woods v. Woods, 163
Idaho 904, 906, 422 P.3d 1110, 1112 (2018). Whether the change of circumstances is substantial
and material depends upon the impact of the change upon the child not whether the circumstance
on its own has been greatly altered. Evans v. Sayler, 151 Idaho 223, 226, 254 P.3d 1219, 1222
(2011). Idaho Code § 32-717 gives a judge wide discretion regarding custody decisions, subject
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to some restrictions, with the children’s best interests being of paramount importance. Snowball
argues that there was not substantial and competent evidence to deny the petition; however, that
argument places the burden on the wrong party. The party seeking custody modification has the
burden of justifying a request for a change in custody and that requires showing a substantial and
material change. Brownson, 134 Idaho at 63, 995 P.2d at 833. Therefore, it was Snowball’s burden
to prove a material change in circumstances.
Snowball argues that his circumstances are substantially and materially different from the
time of the divorce decree for multiple reasons. First, after the divorce decree was entered,
Snowball was officially diagnosed and approved for social security and acquired some volunteer
work. Second, during the divorce, Snowball was working out of state, but he has now settled in
Idaho and acquired a stable residence. Lastly, Snowball argues there has been a change in
circumstance because the supervision agencies Nelson provided are no longer available and not
appropriate locations for visitation. The district court was correct to affirm the magistrate court’s
determination that Snowball failed to prove a substantial and material change warranting
modification of visitation.
The magistrate court had substantial evidence to support its findings. The magistrate court
found that Snowball qualified for disability and began receiving social security benefits in
December 2019. Neither party is challenging this finding.
The magistrate court found Snowball did not have a stable residence despite his claim that
he had acquired housing. This was based upon Snowball’s own testimony that he had recently
been evicted from his residence.
The magistrate court found that visitation between Snowball and the child originally began
at Kid Services but after a disagreement between Snowball and Kid Services arose, Nelson
identified a second agency, Child Advocacy Services; it was unclear to the magistrate court, based
on the evidence properly presented, why visits were not happening at this location. The magistrate
court also found that any conflict with the local agencies was not caused by Nelson and instead
arose from Snowball’s own conduct. The evidence supports the magistrate court’s finding that
conflict with the local agencies was caused by Snowball:
Q: You argued multiple times with the supervisor about their policies and
procedures, didn’t you?
A: No, I did not, because she would not allow me an opportunity to speak.
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Q: Do you recall the supervisor writing in their notes that you were very
confrontational?
A: Yes, I recall that.
Q: Do you recall the supervisor writing in their notes that you will not stop
arguing and want to discuss the rules? Do you recall that?
A: I recall that, yes.
The magistrate court found the evidence supported continuing with supervised visitation.
Snowball challenges this finding because Nelson testified she did not believe Snowball was a
threat to their child. However, as with most of his assertions, Snowball does not cite to the record
where this testimony can be found. Furthermore, Nelson testified as to why she believed
supervised visitation was necessary: “I feel that [Snowball doesn’t] have the patience or
compassion it takes to deal with a screaming or crying child, temper tantrums, and [Snowball has]
not been able to follow rules very well.” As further evidence of Snowball’s inability to follow
rules, Snowball testified he violated a court order and felt the court should excuse that behavior
because of his intentions. Snowball’s testimony demonstrates a lack of accountability.
Most notably, during the hearing on Nelson’s motion to dismiss, Snowball made it clear
he was not challenging the supervision requirement when he stated:
I think that supervised visitation is warranted. I do not object to supervised
visitation. It’s quite obvious and apparent to me that it is not in the best interest of
the child to have a 50/50 custody agreement but I do think that the child would
benefit from contact with the biological parent, being me, as I taught her her first
words, I was her caretaker for the first four to five months of her life.
Although this was not evidence presented at trial to the magistrate court, it does show that, at one
point, Snowball agreed supervised visitation was warranted. Overall, there was substantial and
competent evidence to support the magistrate court’s findings.
Snowball failed to prove a substantial and material change to his circumstances warranting
a change in visitation. Since the original decree of divorce, Snowball began receiving social
security benefits3 but Snowball remained without stable housing, refused to comply with agency
protocol for visitation, and supervised visitation remained necessary.
3
Child support was modified due to Snowball’s change in income; however, Snowball failed
to explain how receiving social security is relevant to his visitation schedule.
8
Snowball’s strongest contention is that the visitation facilities are misapplying I.R.F.L.P.
1003(o)4 and he should not be subject to those requirements. No matter how adamantly Snowball
insists the facilities are misapplying I.R.F.L.P. 1003(o), it remains the facilities’ prerogatives to
dictate their standards and expectations. If Snowball refuses to comply, that is not Nelson’s fault
and does not rise to the level of a substantial and material change in circumstance.
Additionally, Snowball failed to articulate how any of these alleged changes necessitated
modification of child custody for the best interests of the child, which remains the primary
consideration for modification purposes. In his reply brief, Snowball states: “This Court must
take on the burden of explaining where [Snowball’s] daughter’s best-interests are, because they
are not in focus by the current elimination of [Snowball] from the child’s life for a substantial
period of time . . . .” It is Snowball’s burden to prove a substantial and material change in
circumstances that indicate a modification would be in the best interests of the child. Brownson,
134 Idaho at 63, 995 P.2d at 833. Instead, Snowball makes conclusory statements and attempts to
impose the burden on this Court. Snowball has not met his burden because he failed to articulate
how each change he alleged would affect the best interests of his child. As a result, the magistrate
court did not err when it determined there was no substantial and material change that would
indicate a modification was necessary and the district court, therefore, did not err in affirming this
determination.
B. Supervision Provider
Next, Snowball contends the magistrate court erred by not identifying a supervision
provider under I.R.F.L.P. 1003(e). Even though I.R.F.L.P. 1003(e) states the magistrate court will
identify the provider when a court orders supervised visitation that issue is not properly before us
because Snowball failed to timely appeal the divorce decree. Nonetheless, Snowball has not
shown an error that affects his substantial rights because it appears from the record that all local
supervision facilities have been utilized. As determined above, the lack of supervised visitation is
not due to an error by the magistrate court, but instead due to Snowball’s noncompliance.
Snowball insists that he is willing to comply with facility protocol but they are incorrectly
applying I.R.F.L.P. 1003(o) to him. As discussed above, even if the facility is not legally required
to apply I.R.F.L.P. 1003(o) to Snowball’s visitation, it remains the facility’s prerogative to conduct
4
Snowball uses the old citation Idaho Rule of Family Law Procedure 717(O). As of July
2021, the new I.R.F.L.P. came into effect and I.R.F.L.P 717 became I.R.F.L.P 1003.
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visitations as it deems fit, even if that includes applying I.R.F.L.P. 1003(o). Therefore, it is
inapposite that Snowball believes I.R.F.L.P. 1003(o) does not apply to him; he must comply with
facility requirements if he is to access the facility’s services.
Lastly, Snowball argues the magistrate court should have ordered that I.R.F.L.P. 1003(o)
does not apply to his case. Snowball fails to cite to the record or show that he ever moved the
magistrate court to consider such an order. Therefore, Snowball has failed to show error in this
regard.
C. Gender and Disability Bias
Snowball argues the magistrate court violated the equal protection clause. Snowball argues
he perceived a level of gender bias by and through the acts of female parties. He alleges evidence
of this bias is preferential treatment in favor of Nelson. Snowball also alleges a general bias against
him due to his disability.
Snowball fails to provide authority, cite to the record, or offer a cogent argument to support
his allegation of gender or disability bias. The sole evidence Snowball points to is that the
magistrate court allowed Nelson to admit hearsay evidence during the divorce trial, but denied
Snowball the ability to admit hearsay evidence during the petition to modify hearing. This is easily
explained. Snowball was not present at the divorce proceedings to object to evidence. Conversely,
Nelson requested strict compliance with the Idaho Rules of Evidence during the petition to modify
trial and was present to make objections. The magistrate court did not err in refusing to admit
Snowball’s proffered hearsay evidence. Therefore, the discrepancy is not evidence of bias. Any
other allegations Snowball has made are conclusory and without citations to the record or
supporting authority. Snowball has failed to prove bias or unequal treatment during the
proceedings.
D. Trial Errors
Snowball argues his right to counsel was denied because the magistrate court should have
appointed counsel upon notice of his disabilities. Snowball also argues error during trial because
he was unable to pay for certain witnesses to be present. For both these issues, Snowball failed to
provide any legal authority. Without supporting legal authority, the issues are waived. Most
importantly, these issues were not raised on intermediate appeal to the district court. Where a
party appeals the decision of an intermediate appellate court, the appellant may not raise issues
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that are different from those presented to the intermediate court. State v. Sheahan, 139 Idaho 267,
275, 77 P.3d 956, 964 (2003). Accordingly, we will not address this issue further.
E. Attorney Fees
Snowball argues the district court abused its discretion when it granted Nelson attorney
fees and costs. Snowball argues the fees are unreasonable and inequitable. The district court
correctly perceived that attorney fees were one of discretion and acted within the boundaries of its
discretion. The district court correctly identified that I.C. § 12-121 and Idaho Appellate Rule 41
applied to Nelson’s request for attorney fees and then clearly articulated why the district court was
granting attorney fees in this case. It was reasonable for the district court to conclude that Snowball
was inappropriately appealing judgments that were untimely, making incomprehensible arguments
without supporting authority, and frivolously requesting the district court to second-guess the
magistrate court’s fact-finding. Therefore, the district court did not abuse its discretion when it
granted attorney fees and costs to Nelson.
We address Nelson’s request on appeal for costs under I.A.R. 41 and for attorney fees under
I.C. § 12-121. An award of attorney fees may be granted under I.C. § 12-121 and I.A.R. 41 to the
prevailing party and such an award is appropriate when the court finds that the appeal has been
brought or defended frivolously, unreasonably, or without foundation.
Nelson argues Snowball did no more than second-guess the trial court on conflicting
evidence and in addition, the law governing the issues, both procedural and substantive, is well-
settled. Snowball asks this Court to deny attorney fees since he is making an effort to advocate
for a relationship with his child, suggesting his appeal is not frivolous, unreasonable, or without
foundation.
We agree with Nelson. Snowball spent the majority of his briefing challenging orders and
judgments that are not properly before this Court. Snowball asked this Court to second-guess the
magistrate court’s discretion when handling conflicting evidence. Moreover, Snowball failed to
raise a legitimate question of law or provide sufficient authority for the majority of the arguments
he made. Thus, Nelson is entitled to attorney fees on appeal.
IV.
CONCLUSION
The district court did not err by affirming the magistrate court’s judgment dismissing
Snowball’s petition for modification of child custody and by awarding Nelson attorney fees and
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costs. Accordingly, we affirm the district court’s intermediary decision on appeal affirming the
magistrate court’s final judgment. Nelson is awarded costs and attorney fees on appeal.
Chief Judge LORELLO and Judge HUSKEY CONCUR.
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