Shepherd v. Shepherd, 092916 IDSCCI, 42938

Docket Nº:42938
Opinion Judge:HORTON, Justice.
Party Name:NANCY J. SHEPHERD, Plaintiff-Appellant, v. JOHN M. SHEPHERD, Defendant-Respondent.
Attorney: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.
Judge Panel:Chief Justice J. JONES and Justices EISMANN, BURDICK and W. JONES, CONCUR.
Case Date:September 29, 2016
Court:Supreme Court of Idaho

NANCY J. SHEPHERD, Plaintiff-Appellant,


JOHN M. SHEPHERD, Defendant-Respondent.

No. 42938

Supreme Court of Idaho

September 29, 2016

2016 Opinion No. 106

Appeal from the District Court of the First Judicial District of the State of Idaho, Kootenai County. Hon. Michael J. Griffin, District Judge.

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.


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 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.


"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...

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