Danti v. Danti

• Decision Date: 05 March 2009
• Docket Number: No. 34723.,34723.
• Citation: 204 P.3d 1140
• Parties: Michelle DANTI, Plaintiff-Respondent, v. Edward DANTI, Defendant-Appellant.
• Court: Idaho Supreme Court

204 P.3d 1140

Michelle DANTI, Plaintiff-Respondent, v. Edward DANTI, Defendant-Appellant.

No. 34723.

Supreme Court of Idaho, Boise, January 2009 Term.

March 5, 2009.

Edward Danti, Meridian, appellant pro se.

Ludwig, Shoufler, Miller, LLP, Boise, for respondent. Bret W. Shoufler argued.

J. JONES, Justice.

Ed Danti appeals the divorce decree entered between himself and his ex-wife, Michelle Danti, particularly challenging the provisions awarding Michelle sole physical custody of their two children and allowing her to relocate with the children to California. We affirm.

I.

Ed and Michelle were married in California in 1996. During their marriage, the couple had two daughters — one in 1998 and the other in 2004. At the time of the proceedings in this matter, the children were eight and two years old, respectively.

Ed and Michelle lived in California until 2004. While there, Ed ran a residential remodeling company and Michelle owned and operated her own day care. They decided to move to Meridian, Idaho, in July 2004. Their plan was to stay in Idaho for a few years and then possibly relocate to California. Once the family arrived in Idaho, Ed began his own custom tile business and Michelle stayed at home with the children.

In August 2005, Ed hired a designer, Heather Clark, to assist him with some of his remodeling projects. Approximately one month after Ed hired Heather, he and Michelle began considering divorce. Michelle was unhappy living in Idaho and the couple fought frequently. Although no definitive resolution was reached, the couple decided to temporarily separate. During their period of separation, Ed continued to live in the couple's home.

Shortly after Ed and Michelle decided to separate, Michelle learned from Heather's husband that Ed was likely having an affair with Heather.¹ Michelle confronted Ed with this information and he admitted having an emotional connection to Heather, but denied any sexual relationship. Over time, however, Ed's romantic feelings for Heather grew. When Ed eventually told Michelle of his feelings for Heather, Michelle informed him that she wanted to move back to California but she agreed not to leave until Ed returned from a trip he was taking to California. In return, Ed agreed to allow Michelle to move to California with the children once he arrived back in Idaho. The written agreement, which was signed by Ed, stated: "I am going to California, by myself, Fri. Nov. 4 thru Sun Nov. 6 — Michelle agrees not to go to California wh[ile] I'm gone. When I get back on Sunday, Michelle & I will talk and after we talk if she still feels she needs to go to California, I will let her go with [our daughters]."²

Once Ed returned from his trip, Michelle decided to move back to California. Thereafter, Michelle and the children returned to California, but continued to have daily conversations with Ed. During the course of those conversations, Ed was able to convince Michelle to come back to Idaho. Michelle agreed to return after Ed promised that he would end both his personal and professional relationships with Heather.

Once Michelle arrived back in Idaho, she began to suspect that Ed was still seeing Heather.³ By December 2005, it became obvious to Michelle that, despite his promise, Ed was continuing his relationship with Heather. Consequently, Michelle informed Ed that she planned to return to California. Ed then signed another consent letter giving Michelle his permission to permanently move to California with the children. Before Michelle was able to leave, however, Ed broke down and begged her not to go. Once again, he promised Michelle that if she stayed with him he would end his relationship with Heather. Ed's promise persuaded Michelle and the couple decided to return to California together.

While in California, Michelle learned that Ed was still having regular communications with Heather. Michelle confronted Ed about the communications and he admitted that he had been in touch with Heather. After the confrontation, Ed decided to fly back to Idaho. Once here, he continued to try to convince Michelle to reconcile with him by denying any sexual relationship with Heather.

Ed ultimately persuaded Michelle to move back to Idaho. After returning, Michelle observed Heather at one of Ed's jobsites. This angered Michelle, who decided to call Heather and request a meeting. Michelle then went to Heather's house and the two women discussed their relationships with Ed. Perhaps unsurprisingly, Michelle and Heather discovered that Ed had been lying to both of them. In the midst of their conversation, Ed arrived and admitted that he had been sexually intimate with both women. Upon learning this information, Michelle became upset and left Ed at Heather's house. Although Ed went home briefly that night to pack his belongings, he ended up spending the night with Heather.

The next morning Ed went home to apologize to Michelle. After Ed arrived, however, the couple began arguing and Ed "became enraged and grabbed Michelle by the arms, pushing her up against the laundry room door while screaming at her and poking her in the chest with his finger." All of this occurred in front of the couple's youngest daughter. When Michelle was finally able to break free from Ed, she took her daughter and went to the police station. Michelle reported the incident to the police and Ed was charged with domestic battery. A no contact order was issued and Ed subsequently pleaded guilty to the lesser charge of disturbing the peace. After the issuance of the no contact order, Ed moved in with Heather because he could no longer live in the same house as Michelle.

In March 2006, Michelle filed a complaint for divorce against Ed, in which she alleged irreconcilable differences, adultery, and extreme cruelty. A temporary custody order was issued in May 2006, granting Michelle primary physical custody of the children. The order conditioned Ed's visitation with the children on him not living with Heather and on Heather not being present during visitation. It also required Ed to pay Michelle sixty percent of his net income.

Over the next few months, the intensity of the conflict between Michelle and Ed increased. On more than one occasion, the parties filed police reports alleging that the other had committed various crimes. Additionally, the police were called during at least one custody exchange. At several other exchanges, the couple argued in front of their daughters about topics ranging from the children's involvement in extracurricular activities to visitation schedules and missing clothing.

A trial regarding the divorce, child custody, and child support was held on December 15, 2006. After the trial, the court granted Michelle's request for a divorce on the grounds of extreme mental cruelty and adultery. The judge awarded Ed and Michelle joint legal custody of the couple's children, but granted Michelle sole physical custody.⁴ As part of the custody arrangement, Michelle would be permitted to move to California with the children and Ed would receive visitation with the girls in Idaho during portions of their winter, spring, and summer breaks. Ed would also be allowed to visit the girls in the Sacramento, California, area once per month and on certain holidays. Because Michelle would have the children the majority of the time, Ed was ordered to pay $885.00 per month in child support. The court, however, granted Ed permission to deduct $200.00 per month from his support obligation for travel expenses related to his visitation in California.

Ed now appeals to this Court. He alleges that the court's award of sole physical custody to Michelle was an abuse of discretion because it: (1) violated Idaho's presumption in favor of joint custody; (2) was not in the best interests of the children; (3) was improperly based on Michelle's status as the children's primary caregiver; (4) disregarded Michelle's numerous acts of "secretly and wrongfully" taking the children out of the state; (5) was based on clearly erroneous findings of fact; and (6) was not based upon a custody evaluation performed by a neutral third party.⁵ He also argues that the award was improper because the visitation schedule was unfair, his attorney was ineffective, the judge was biased against him, it violates his constitutional rights, and the court erroneously ignored Michelle's mishandling of community and separate property. For these reasons, he asks this Court to reverse the custody award, order the children returned to Idaho, and award him physical custody. Michelle, on the other hand, maintains that the custody award was proper and seeks an award of attorney fees and costs on appeal.

II.

On appeal we are concerned with several issues including whether: (1) the magistrate judge's custody award was an abuse of discretion; (2) the visitation schedule was an abuse of discretion; (3) the custody award should be vacated on the grounds that Ed's attorney was ineffective; (4) the custody award was the result of the trial court's bias against Ed; (5) the custody award violates Ed's constitutional right to the custody, care, and control of his children; (6) the court improperly ignored Michelle's alleged mishandling of community and separate property; and (7) Michelle is entitled to an award of attorney fees.

A.

Child custody determinations are committed to the sound discretion of the magistrate judge. McGriff v. McGriff, 140 Idaho 642, 645, 99 P.3d 111, 114 (2004). On appeal, this Court will overturn a magistrate's custody decision only if it is an abuse of discretion. Roberts v. Roberts, 138 Idaho 401, 403, 64 P.3d 327, 329 (2003). A custody award will not be regarded as an abuse of discretion so long as the trial court: (1) recognized the issue as one of discretion; (2) acted within the outer limits of its discretion and consistently with the legal standards applicable to the available choices; and (3) reached its decision through an exercise...