Carver v. Hornish, 49320

CourtUnited States State Supreme Court of Idaho
Writing for the CourtBRODY, Justice.
PartiesERIN SUE CARVER, fka ERIN SUE HORNISH, Petitioner-Appellant, v. WILLIAM EUGENE HORNISH, JR. Respondent.
Docket Number49320
Decision Date18 October 2022

ERIN SUE CARVER, fka ERIN SUE HORNISH, Petitioner-Appellant,


No. 49320

Supreme Court of Idaho, Boise

October 18, 2022

Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Michael Dean, Magistrate Judge.

The decision of the magistrate court is affirmed.

Breen Ball & Marelius, PLLC, Boise, for Appellant. M. Sean Breen argued.

Goss Gustavel Goss, PLLC, Boise, for Respondent. Geoffrey E. Goss argued.

BRODY, Justice.

This case addresses the subject matter jurisdiction of the magistrate court in a divorce action when a minor is emancipated as a result of her marriage. Erin Carver alleges that her ex-husband, William Hornish, consented to the marriage of their 16-year-old daughter ("Daughter") in order to legally emancipate her and circumvent custody provisions in the parties' divorce decree. Carver learned of the alleged scheme before it was accomplished and filed a motion to prevent Hornish from exercising legal authority to consent to Daughter's marriage. However, the magistrate court did not rule on the motion before Daughter was married. Carver argues on appeal that the motion should have been granted retroactively, effective to a date before the marriage or, in the alternative, the statute allowing a minor to marry with the consent of only one parent should be declared unconstitutional. For the reasons below, we reject both arguments and affirm the magistrate court's decision to dismiss Carver's verified petition to modify the judgment and decree


of divorce and the counterpetition filed by Hornish.


Carver and Hornish were divorced in 2012 and the parties were awarded joint custody of their three minor children. In July 2021, Carver filed a petition in the magistrate court to modify the divorce decree (which had been previously modified in 2014) to obtain primary physical custody of 16-year-old Daughter, their only child who still remained a minor. Carver argued the modification was necessary because Hornish planned to move to Florida for his work.

Hornish filed an answer and counterpetition two days later, asking that he be awarded primary custody of Daughter. According to the counterpetition, Daughter wanted to move with Hornish to Florida. A week later, Hornish filed a motion for temporary orders seeking the immediate authority to move with Daughter and enroll her in high school in Florida.

Five days after Hornish filed his motion for temporary orders (and before a ruling by the magistrate court), Carver filed a petition under Idaho Code section 32-11-308 for expedited enforcement of the alternating-week custody schedule set out by the 2012 divorce decree. Hornish was supposed to have transferred Daughter to Carver the day before but had not because he had left for Florida, taking Daughter with him. The magistrate court held a hearing on the petition for expedited enforcement. At the hearing, Hornish's counsel acknowledged that Hornish had left Idaho with Daughter but assured the magistrate court that Daughter would be flown back to Idaho within a few days. Daughter returned to Idaho four days later.

Carver then filed a cross-motion for temporary orders seeking primary custody of Daughter during the pendency of her petition to modify the divorce decree. The magistrate court held a hearing to consider Hornish's motion for temporary orders, Carver's cross-motion for temporary orders, and two motions for contempt stemming from Hornish's having taken Daughter out of Idaho. The magistrate court denied Hornish's motion for temporary orders and granted Carver's cross-motion, reasoning that Daughter should stay in Idaho until more information about her best interests could be developed at trial:

[T]he request to move [Daughter] to Florida is a rather drastic request in my mind. It removes her out of the state where she has been residing for a lengthy period of time. It moves her to a place where maybe there is some support, but the Court's not aware of the extent of that support there. That's something that I think the Court would need to hear more about and I think during a full trial rather than in temporary motions

The magistrate court then scheduled a two-day trial for late March 2022.


On October 27, 2021, Carver filed a new motion for temporary orders under Idaho Rule of Family Law Procedure 504. The next day, she filed another motion, largely identical in substance, but seeking immediate ex parte relief under I.R.F.L.P. 505. In these motions, Carver alleged Hornish was trying to arrange a sham marriage which would legally emancipate Daughter and strip the magistrate court of jurisdiction over her custody. In the verified I.R.F.L.P. 505 motion, Carver stated that she received a call from a woman in Florida whose 18-year-old son Patrick was an acquaintance of Daughter. According to the woman, Daughter had offered to do Patrick's high school homework if he would marry her. The woman said she spoke with Hornish, and he approved of this plan. Further, the woman stated that when she told Hornish that Patrick would not participate, Hornish replied that he would "get Nick to do it," apparently referring to another boy or young man in Florida.

Along with the October 27 motion for temporary orders (the I.R.F.L.P 504 motion), Carver had also filed a motion to shorten time and have a hearing on the matter on November 9, 2021. The magistrate court granted this motion on October 29, 2021, but it did not take any action regarding the October 28 motion for ex parte temporary orders. However, the magistrate court granted Carver's ex parte motion on November 5, 2021, holding that "[b]oth the child and Petitioner would suffer irreparable harm" if the alleged sham marriage were to occur.

On November 8, the parties submitted a flurry of filings, not all of which are in the record on appeal. These appear to have begun with a motion by Hornish (not in the record) to dismiss Carver's July 13 petition on the basis that Daughter had been married in Canyon County on November 1, 2021, to a person ("Husband"), who was neither Patrick nor Nick. Daughter was just under seventeen years old at the time of the marriage. In response to Hornish's motion to dismiss, Carver apparently filed a motion (also not in the record) requesting that the magistrate court reissue the November 5 order nunc pro tunc to October 28, 2021, and a separate motion to annul Daughter's marriage pursuant to Idaho Code section 32-501. Hornish then filed an objection to the motion to annul.

The magistrate court held a hearing the next day (November 9, 2021). The court explained that it had not seen the ex parte motion until November 5, due to a delay in the electronic filing system or an oversight on its own part. Further, although it had granted the ex parte motion immediately upon seeing it, the magistrate court expressed doubt whether it had the authority to reissue the order nunc pro tunc to an earlier date. The magistrate court then ordered the parties to


submit briefs regarding its nunc pro tunc authority and scheduled another hearing.

The magistrate court orally ruled on Hornish's motion to dismiss at a hearing on November 19. The magistrate court held it did not have the authority to reissue the November 5 order nunc pro tunc because it had not seen the motion before that date. Thus, the magistrate court reasoned that Daughter's marriage on November 1 was valid, that it no longer had jurisdiction over her custody, and that it was required to grant Hornish's motion to dismiss.

The magistrate court entered judgment in favor of Hornish on November 23, 2021. The same day, it issued an order granting an immediate permissive appeal to this Court under Idaho Appellate Rule 12.1. Carver timely appealed. After oral arguments before this Court, the parties were ordered to submit supplemental briefs.


Unless a factual challenge to jurisdiction has been raised, the decision to dismiss an action for lack of jurisdiction is reviewed applying "the same standard of review we apply to a motion for summary judgment. After viewing all facts and inferences from the record in favor of the non-moving party, the Court will ask whether a claim for relief has been stated." Emps. Res. Mgmt. Co. v. Ronk, 162 Idaho 774, 777, 405 P.3d 33, 36 (2017) (quoting Joki v. State, 162 Idaho 5, 8, 394 P.3d 48, 51 (2017)).


A. We affirm the dismissal of Carver's petition because the magistrate court lacked subject matter jurisdiction over Daughter's custody and jurisdiction would not have been restored by granting Carver's motion for nunc pro tunc relief.

The magistrate court held that it was required to dismiss Carver's petition to modify the custody provisions of the parties' divorce decree and the counterpetition filed by Hornish because Daughter was emancipated by her marriage on November 1, 2021, and it no longer had jurisdiction over her custody. It concluded that Hornish had authority under Idaho Code section 32-202 to consent unilaterally to Daughter's marriage and-although it would have granted Carver's October 29 ex parte motion to suspend Hornish's authority to consent if it had seen the motion in time- the magistrate court held that it could not retroactively grant Carver's requested relief. Specifically, the magistrate court held it was not empowered under the doctrine of nunc pro tunc to make the motion effective on any date before November 5 (when it first became aware of the motion), because "[t]he function of a nunc pro tunc entry is to make a record of something that was done and not recorded. It cannot be used to show action which was not, in fact, taken."


Before addressing Carver's nunc pro tunc argument, it is important to take up the magistrate court's subject matter jurisdiction. In a divorce action, the...

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