Antill v. Antill

• Decision Date: 05 January 1996
• Docket Number: No. 21478,21478
• Citation: 908 P.2d 1261,127 Idaho 954
• Parties: Laura ANTILL nka Huber, Plaintiff-Appellant, v. John William ANTILL, Defendant-Respondent. STATE of Idaho, DEPARTMENT OF HEALTH & WELFARE, Third-Party Plaintiff, v. John William ANTILL, Third-Party Defendant.
• Court: Idaho Court of Appeals

Page 1261

908 P.2d 1261

127 Idaho 954

Laura ANTILL nka Huber, Plaintiff-Appellant, v. John William ANTILL, Defendant-Respondent.

STATE of Idaho, DEPARTMENT OF HEALTH & WELFARE, Third-Party Plaintiff, v. John William ANTILL, Third-Party Defendant.

No. 21478.

Court of Appeals of Idaho.

Jan. 5, 1996.

[127 Idaho 955] Robert M. Kerr, Jr., Blackfoot, argued, for appellant.

Loveless, Neilsen & Neilsen, Pocatello, for respondent. Victoria E. Loveless argued.

WALTERS, Chief Judge.

Laura Huber appeals from a district court decision which upheld a magistrate's order denying her motion for an award of attorney fees and costs to defend a petition filed by John Antill to modify a divorce decree. We vacate the magistrate's order, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Laura Huber and John Antill were divorced in 1984. The parties were awarded joint legal custody of the two minor children, with Huber receiving primary physical custody and Antill receiving visitation rights. Both parties subsequently remarried, and Huber now has three additional children who were born to her and her second husband. Antill is also remarried and has no other children.

On June 11, 1993, Antill filed a petition for modification of the divorce decree, requesting that he be given permanent custody of the children with visitation rights to Huber. His petition alleged that the children informed him during their visitation with Antill that they were verbally and physically abused by Huber's husband, and therefore they requested to remain with Antill. On August 16, 1993, Huber filed her answer to Antill's petition and also filed a motion for an order requiring Antill to pay Huber's anticipated attorney fees and costs in defending Antill's petition. On September 20, Antill filed an affidavit responding to Huber's request for attorney fees and costs, claiming that both parties should pay their own costs and attorney fees.

On September 23, the parties arrived at a stipulated settlement which provided that Antill would retain temporary custody of the children during the 1993-94 school year with reasonable visitation being made available to Huber. The stipulation provided that at the end of the school year, the parties would determine what permanent custody arrangement would be in the children's best interest, taking into account the wishes of the children, their school performance, social adaptation and their counselor's recommendation in determining if the children should remain with their father or return to their mother's home. If the parties were unable to reach a decision regarding custody, either party could move for permanent custody, without having to show a "substantial and material change of circumstances."

On October 27, Huber filed a motion for allowance of attorney fees and costs in the amount of $3,011.38 for defending Antill's petition for modification of the divorce decree. As with the August 16 motion for costs and attorney fees, the October 27 motion did not set forth the statutory grounds on which the request for attorney fees and costs were based.

On October 29, 1993, the magistrate issued an order denying Huber's request for attorney fees and costs. The magistrate's decision was predicated on four findings. First, the magistrate found that, as a result of the September 23 stipulation providing Antill with custody until the end of the school year, Antill was "essentially the prevailing party." Therefore, an award of attorney fees pursuant to I.C. § 12-121 and I.R.C.P. 54(e)(1) was inappropriate. Second, Huber knew in August of 1993 that the children wished to stay with Antill. Third, Huber never personally appeared at any hearings in the proceeding. Finally, the magistrate found that Huber never made a substantial showing that her circumstances required the award of attorney fees. Consequently, the magistrate held that an award of attorney fees to Huber also was not justified under I.C. § 32-704. Huber appealed to the district court, which upheld that magistrate's decision.

Huber raises several issues on appeal, which are readily consolidated. She argues that the magistrate improperly applied I.C. § 12-121 and I.R.C.P. 54(e)(1) and that she

[127 Idaho 957] was entitled to attorney fees and costs under I.C. § 32-704. ¹

ANALYSIS

On appeal from a district court's appellate decision, we review the magistrate's decision independently from, but with due regard for, the district court's decision because the issues before us are the same as those considered by the district court. Hilt v. Draper, 122 Idaho 612, 616, 836 P.2d 558, 562 (Ct.App.1992). This Court will defer to the findings made by the trial court if they are not clearly erroneous. Bumgarner v. Bumgarner, 124 Idaho 629, 637, 862 P.2d 321, 329 (Ct.App.1993). However, we will exercise free review over the trial court's conclusions of law to determine whether the court correctly stated the applicable law, and whether the legal conclusions are sustained by the facts found. Id.

Huber first argues that the magistrate erred in considering I.C. § 12-121 and I.R.C.P. 54(e)(1) because these provisions "only appl[y] in divorce cases brought, pursued or defended frivolously, unreasonably or without foundation." Apparently, her argument is that she requested attorney fees pursuant to I.C. § 32-704(2), and not under I.C. § 12-121 and I.R.C.P. 54(e)(1). Huber also contends that the magistrate erred in applying I.C. § 12-121 and I.R.C.P. 54(e)(1) because "they relate only to completed actions where no other statute applies" and here, there was no final judgment or decision on the merits of Antill's petition for modification, only a temporary stipulation.

At the outset we note that in her motions for attorney fees, Huber did not state the statutory grounds on which her requests were based. Therefore, the magistrate properly addressed all potentially applicable statutes. Moreover, even if it were true that the magistrate should not have analyzed the issue of attorney fees under I.C. § 12-121 and I.R.C.P. 54(e)(1), either because these provisions only relate to "completed actions" or because I.C. § 32-704(2) governed the issue, there was no prejudice since the magistrate also analyzed the issue under I.C. § 32-704(2), the provision which Huber now asserts is applicable. Therefore, we will consider only whether the magistrate correctly applied I.C. § 32-704(2).

I.C. § 32-704(2) provides:

The court may from time to time after considering the financial resources of both parties and the factors set forth in section 32-705, Idaho Code, ² order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this act and for attorney's fees, including sums for legal services rendered and costs incurred prior to The decision of whether to award attorney fees pursuant to I.C. § 32-704 is discretionary. Pieper v. Pieper, 125 Idaho 667, 671, 873 P.2d 921, 925 (Ct.App.1994). Absent an abuse of discretion, a trial court's denial of attorney fees under this provision will be upheld on appeal. See Golder v. Golder, 110 Idaho 57, 61-62, 714 P.2d 26, 30-31 (1986). "The trial court may, pursuant to I.C. § 32-704, make awards of costs and attorney fees in post-divorce decree proceedings. The financial resources of the parties must first be considered. Then the factors under I.C. § 32-705 must be considered and applied." Josephson v. Josephson, 115 Idaho 1142, 1151, 772 P.2d 1236, 1245 (1989) (citation omitted). See also Golder, 110 Idaho at 61, 714 P.2d at 30 (I.C. § 32-704 authorizes the trial court to award attorney fees in an action to modify a divorce decree "where the financial resources of the parties so dictate.")

[127 Idaho 958] the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.

Huber argues that the magistrate abused his discretion by failing to adequately consider the respective financial resources of Huber and Antill and by considering improper factors in denying her request for attorney fees and costs. The magistrate's findings in support of his decision to deny attorney fees are as follows:

Fees should not be awarded to [Huber] because: 1) [Antill] is essentially the prevailing party; 2) [Huber] knew in August of 1993 that the children wished to stay with [Antill] (See the letter attached to [Huber's] affidavit of 9/9/93 ³ ); 3) despite the financial condition of [Huber], [Huber] never personally appeared at any hearing set by the Court or otherwise in this proceeding; and 4) [Huber] has not made a substantial showing that her circumstances require the award of attorney fees.

We discuss these findings in turn. The first finding, that Antill was the prevailing party, need not be addressed because this factor applies to I.C. § 12-121 and I.R.C.P. 54(e)(1). Furthermore, an award of fees under I.C. § 32-704(2) may be made during the pendency of the action and does not depend upon who prevails.

Huber asserts that the second factor, i.e., that she knew in August 1993 that the children wished to stay with Antill, was inappropriately considered as it is not a factor listed in I.C. § 32-705 and is, furthermore, irrelevant. We first note that §§ 32-704 and -705 do not limit the trial judge's consideration to only those factors provided in I.C. § 32-705. Rather, the factors articulated in I.C. § 32-705 are the minimum factors to be considered in determining whether attorney fees should be provided under I.C. § 32-704. Therefore, we reject Huber's assertion that relevant factors other than those listed in I.C. § 32-705 may not be considered when deciding whether attorney fees should be awarded.

However, we agree with Huber that her knowledge of the children's wishes was irrelevant in this case. Even if Huber knew that the children wished to stay with Antill, she was still entitled to present...