Boe v. Boe

• Citation: 163 Idaho 922,422 P.3d 1128
• Decision Date: 27 July 2018
• Docket Number: Docket No. 45727
• Court: Idaho Supreme Court
• Parties: Erik T. BOE, Petitioner-Respondent, v. Amelia M. BOE, nka Johnson, Respondent-Appellant.

163 Idaho 922

422 P.3d 1128

Erik T. BOE, Petitioner-Respondent,

v.Amelia M. BOE, nka Johnson, Respondent-Appellant.

Docket No. 45727

Supreme Court of Idaho, Boise, June 2018 Term.

Filed: July 27, 2018

Bauer Ryan, PLLC, Boise, for appellant. Margalit Z. Ryan argued.

Geoffrey E. Goss, Boise, for respondent. Geoffrey E. Goss argued.

BURDICK, Chief Justice.

Amelia M. Johnson, fka Boe (Mother), brings this permissive appeal under Idaho Appellate Rule 12.1 from the Ada County magistrate court. Mother and Erik T. Boe (Father) divorced in 2010 and, at that time, stipulated to a joint-custody arrangement regarding their two minor children, L.R.B. and L.E.B. (collectively, the Children). That custody arrangement governed until 2015, when Father relocated from Southeast Boise to Meridian. With Father's move came disputes over physical and legal custody, which schools the Children should attend, and issues pertaining to child support. A two-year course of litigation ensued, with Mother and Father ultimately stipulating to a partial judgment that resolved physical custody and trying issues concerning legal custody, the Children's schools, and child support to the magistrate court. As relevant here, the magistrate court ruled that the Children were to attend the schools assigned to Father's Meridian home (the Meridian Schools), and that Mother and Father were each entitled to one dependency exemption. On appeal, Mother challenges these rulings and, further, makes several contentions pertaining to physical custody. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mother and Father divorced in 2010. They stipulated to a divorce decree allowing for joint legal and physical custody over the Children.¹ They agreed that Father's home address in Southeast Boise would be used for school registration purposes. The Children were thus enrolled at the schools assigned to Father's Southeast Boise home address (the Boise Schools), and this was uncontested until Father relocated from Southeast Boise to Meridian in 2015.

Along with Father's 2015 move to Meridian came the filing of his petition to modify the divorce decree as it pertained to child custody. In that petition, filed on October 2, 2015, Father requested "sole legal custody as it relates to the education of the minor children." Father identified several events as substantial, material, and permanent changes in circumstances, including: (1) his move from Southeast Boise to Meridian; (2) his address had always been used for school registration purposes; (3) Mother moved frequently, and had her address been used for school registration purposes, the Children would have been placed in three schools by the fourth grade; and (4) Mother did not prioritize the Children's education. Consequently, Father specifically requested that he be allowed to enroll the Children at the Meridian Schools.² Mother answered Father's petition, in relevant part, by counterclaiming that she should be awarded sole legal custody and primary physical custody, with visitation rights for Father, and requesting a modification of child support.³

On February 19, 2016, Mother and Father stipulated to allow Robert Engle, Ph.D., to perform a custody evaluation (the First Custody Evaluation). The parties agreed that the First Custody Evaluation was "to help aid the parties to address their communication issues and to determine a final custodial arrangement with the ... [C]hildren." Father's counsel prepared an order pertaining to the stipulation, which order stated that "the parties shall be bound by the recommendations concerning custody from said evaluation." When the order was sent to Mother, she was instructed that, "[i]f [she] had any problems with this, let [Father's counsel] know right away, and we'll make whatever recommendations or changes to that order." No objection was made, and instead, Mother and Father signed the stipulation that accompanied the order. The magistrate court signed and entered the order on February 22, 2016.

Dr. Engle conducted the First Custody Evaluation in July 2016. He concluded it was in the Children's best interests for Father to have sole legal custody concerning educational decisions and primary physical custody during the school year. The magistrate court implemented the First Custody Evaluation at Father's request by entering a corresponding interlocutory judgment on August 12, 2016,⁴ ordering that (1) the "parties shall have joint legal custody of [the Children], with [Father] being awarded sole legal custody as it pertains to the educational decisions"; (2) "[the C]hildren shall attend the school(s) associated with [Father's] residence"; and (3) during the schoolyear [sic], Father "shall be awarded primary physical custody of the ... [C]hildren, subject to visitation with [Mother.]"

Mother moved for reconsideration on October 3, 2016. Mother challenged the First Custody Evaluation by contending it was improperly prepared and erroneously implemented because, according to Mother, the parties did not stipulate to be bound by it. The magistrate court denied the motion on November 30, 2016.

Anticipating trial on the issues of physical custody and child support, Father filed a motion in limine to exclude evidence contrary to the First Custody Evaluation on January 18, 2017. The magistrate court granted Father's motion, ruling that "evidence to the contrary [of the First Custody Evaluation] will be excluded at the trial on the understanding that the parties have, in essence, agreed to allow the [First Custody Evaluation] to be the only evidence on that point."

But Mother's challenges against the First Custody Evaluation continued. After deposing Dr. Engle, she filed a motion in limine to exclude Dr. Engle's testimony and the First Custody Evaluation from evidence. Similarly, Mother moved the magistrate court to reconsider its ruling granting Father's motion in limine. The magistrate court heard these two intertwined motions on February 21, 2017, and found that the First Custody Evaluation had been erroneously prepared, as it did not comply with Idaho Rule of Family Procedure 719 and that rule's express incorporation of the Association of Family and Conciliation Courts Model Standards of Practice for Child Custody Evaluations (AFCC). Specifically, the First Custody Evaluation was deemed erroneously prepared because, as relevant here, Dr. Engle accepted Father's assertions as true and "at face value" without giving Mother a chance to respond, which the magistrate court found especially problematic.⁵ In fact, Dr. Engle conceded that, while he "used to ... have a meeting to go over the allegations and the parents' responses to the allegations[,]" he had since "quit doing that because it was useless" and further conceded that he "do[es]n't do that anymore with anybody." Consequently, the magistrate court reasoned that

an evaluation that has a willful disregard, which is what appears to be the case here, of the basic procedure and rules that are contained in Rule 719, and by extension, the standards set forth by the AFCC, the parenting time evaluation in this case is not a parenting time evaluation any more than an affidavit that is unsworn is not an affidavit or a check that is unsigned is not a negotiable instrument.

The magistrate court therefore excluded the First Custody Evaluation from evidence, vacated the impending trial date, and ordered a new custody evaluation from Todd Bennett, Ph.D. Although Mother moved the magistrate court to vacate the interlocutory judgment that implemented the First Custody Evaluation, the magistrate court denied Mother's request and allowed it to govern.

Dr. Bennett's custody evaluation (the Second Custody Evaluation) was filed with the magistrate court on July 21, 2017. Dr. Bennett recommended that Mother and Father have shared physical and legal custody, and that the Children be assigned to the Meridian Schools. Regarding physical custody, Dr. Bennett concluded that, "[u]ltimately, it is in the best interest of the [C]hildren to have both parents act in a facilitative role." Regarding the Children's schools, Dr. Bennett explained that the Children "have done well this past year" and that they should continue attending the Meridian Schools. However, he declined to recommend that one parent be awarded legal custody, explaining:

I do not recommend that either parent have legal decision-making over school related issues. When one parent has legal authority, they stop co-parenting with the other parent. If there are major decisions to be made, such as school, summer school, or extracurricular activities that the parents cannot agree on, this would be an appropriate use of a parenting coordinator assigned to their family.

After the Second Custody Evaluation, Mother and Father stipulated to entry of a partial judgment to resolve the issue of physical custody. Under the partial judgment, Mother and Father stipulated to "a shared week on off custodial arrangement." The magistrate court signed and entered the partial judgment on August 30, 2017. The outstanding issues concerning "what school the [C]hildren should attend, [Father's] request to have sole decision regarding choice of school, and matters of [child] support[,]" were tried to the magistrate court on September 6, 2017. The magistrate court ruled that the Children "will continue to attend their present schools [ (i.e. , the Meridian Schools) ] and future schools that are assigned to [Father's] current residence [in Meridian]. Any changes to school(s) must be agreed upon, unless it normally flows from [Father's] residence." In addition, the magistrate court awarded one dependency exemption to Mother and one to Father. Mother timely sought permission to appeal these rulings from trial under Idaho Appellate Rule 12.1, and the magistrate court granted her request.

II. ISSUES ON APPEAL

1. Are Mother's challenges concerning physical custody moot?

2. Did the magistrate court err by assigning the Children to the Meridian...