Bettwieser v. Bettwieser
| Decision Date | 23 November 2022 |
| Docket Number | 48656 |
| Parties | CAROLE A. BETTWIESER, Petitioner-Respondent, v. MARTIN H. BETTWIESER, Respondent-Appellant. |
| Court | Idaho Court of Appeals |
UNPUBLISHED OPINION
Appeal from the District Court of the Fourth Judicial District State of Idaho, Ada County. Hon. Gerald F. Schroeder, Senior District Judge. Hon. Roger E. Cockerille, Magistrate.
Decision of the district court, on intermediate appeal from the magistrate court, affirming judgment and decree of divorce affirmed.
Martin H. Bettwieser, Boise, pro se appellant.
K Mitchell Law, PLLC; Katelynn C. Mitchell, Boise, for respondent.
Martin H. Bettwieser (Martin) appeals from the decision of the district court, on intermediate appeal from the magistrate court, affirming the judgment and decree of divorce. We affirm.
Martin and Carole Bettwieser (Carole) were married May 14, 2013. Prior to their marriage, they signed a premarital agreement that primarily ensured Martin and Carole's separate property remained separate throughout their marriage for the benefit of their adult children. The premarital agreement also defined under what circumstances Martin or Carole would seek a divorce. Later they signed a postnuptial agreement (supplemental agreement) that demarcated separate property Carole acquired after marriage and explained a lifetime rent payment Carole made to Martin. Carole filed for divorce in November 2018, asserting irreconcilable differences. Martin denied Carole's claim for reimbursement of future rent and asserted a divorce was preventable. He also counterclaimed for breach of contract under the marital agreements.
In January 2019, Martin filed a motion for mediation which the magistrate court denied. In March 2019, Carole was granted a temporary protection order against Martin.[1] In April 2019, Martin filed a motion requesting a mental examination of Carole, the magistrate court denied this motion. In May 2019, the magistrate court issued a temporary order that assigned the utility bills of Martin's home to Martin, relieving Carole from her responsibility to pay the cable bill.
Prior to trial, the magistrate court ordered sanctions against Martin for improperly terminating his deposition. Specifically, the magistrate court prohibited Martin from testifying on his own behalf at trial and struck his counterclaims seeking relief under the marital agreements. The trial was held in October 2019. In November 2019, the magistrate court issued its judgment and decree of divorce along with its findings of fact and conclusions of law. Martin appealed the divorce decree among other orders to the district court. The district court affirmed the magistrate court's judgment. Martin timely appeals from the district court's intermediate appellate decision.
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.
Martin's appeal raises several issues. Carole responds that many of Martin's issues are not preserved and otherwise lack merit. Carole also requests attorney fees and costs on appeal. We will address each of Martin's preserved issues below and Carole's request for attorney fees and costs. We turn first to the claims of error in the district court on intermediate review.
Martin contends it was error for the district court to disregard four of his issues on appeal. On intermediate appeal, Martin identified seven issues on appeal to the district court. Regarding four of those issues, the district court stated:
In the Appellant's opening brief, he raised seven issues. Many of the issues presented are not supported by authority. The Appellant's Reply Brief presents additional argument and authority for some of the issues presented, but this Court looks only to the initial brief on appeal for the issues presented because that is what the Respondent has the opportunity to respond. [Suitts v. Nix, 141 Idaho 706, 708, 117 P.3d 120, 122 (2005)]. The Court will not consider Appellant's Issues on Appeal numbered in this decision as 3, 4, 6, and 7. The Appellant letters his Issues on Appeal and breaks them down into sub-issues. The issues are grouped as A. Pretrial issues, B. Trial thru Judgement and Decree of Divorce Issues, and C. Post Judgment issues. The issues not considered include: (1) the magistrate sanctioning the Appellant; (2) if Appellant was prejudiced against a fair and adequate trial; (3) if there should have been additional Findings of Fact and Conclusions of Law; and (4) if the magistrate erred by denying the Appellant's Motion to Reconsider.
It is well-established law that issues on appeal must include citations to the record, substantive argument, and cited authority. 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).
In Martin's arguments on issues 3, 4, and 6, he failed to cite to legal authority. Furthermore, his arguments were conclusory and he merely referenced prior motions and briefs to supplement his argument and authority. As to issue 7, although Martin provided one legal citation, he again referenced prior motions to supplement his argument but did not cite to the record and the paragraph was conclusory and lacked a cogent argument. It is improper to suggest the district court go read other motions and briefs to supplement the argument on appeal. Without any citation to the record, legal authority, or cogent argument, it was well within the district court's discretion to declare these issues waived and decline to address them. We, therefore will only review those issues and arguments properly raised and addressed in the district court.
Next, Martin argues it was improper for the district court to make its own factual findings on intermediate appeal. Our standard of review applicable to an intermediate appellate opinion by the district court provides 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, 154 Idaho at 858-59, 303 P.2d at 217-18. However, as a matter of appellate procedure, our disposition of the appeal will affirm or reverse the decision of the district court. Id. In other words, we will direct our attention to what the magistrate court did, determine whether it erred, confirm whether the district court came to the same conclusion, and then affirm or reverse the district court. Consequently, any factual findings the district court made are inconsequential and our standard of review resolves Martin's concerns.
Martin also complains about the appellate process and creating a record for appeal. He requests this Court to "intervene[e] and criti[que] and supervise for correction whether the appeal record requested by the appellant, from the district court to the Supreme Court meets the proper criteria set out" in the Idaho Appellate Rules. Lastly, Martin suggests an update to the appellate rules to fix his grievances. Idaho Appellate Rule 29 provides, "[t]he parties shall have 28 days from the date of the service of the transcript and the record within which to file objections to the transcript or the record, including requests for corrections, additions or deletions." A notice setting the objection for hearing must accompany any objection. I.A.R. 29. After the hearing, once the district court has made its determination the record shall be deemed settled. Id.
The only error Martin has identified is the failure to hold a "proper settlement hearing" relative to the appellate record. From what we can glean, Martin objected to the record but never appeared at the hearing. The district court denied his motion without prejudice providing him the opportunity to file a motion for rehearing and reconsideration. Martin filed a motion, but instead of asking for reconsideration relative to the record, Martin attempted to challenge the district court's jurisdiction, which the district court denied. Consequently, Martin never pressed any challenge to the record on the merits and so the district court deemed the record settled. We find no error by the district court when it settled the record on appeal. Martin had the opportunity to object, was provided a hearing, and had an opportunity for reconsideration.
Regarding the record before this Court, it is the responsibility of the appellant to provide a sufficient record to substantiate his or her claims on appeal. Powell, 130 Idaho at 127 937 P.2d at 439. Per I.A.R. 30(a), if Martin felt the record before this Court was lacking then it was his responsibility to file a motion to augment or delete the record. In fact, Martin did precisely that and this Court granted multiple motions to augment the appellate record. Even if this Court found issue with the record on appeal, there is no remedy beyond what has...
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