Erlebach v. Erlebach

• Docket Number: 51236
• Decision Date: 04 March 2024
• Parties: McSHANE DAVID ERLEBACH, Petitioner-Appellant, v. MEGAN IRENE ERLEBACH, nka MEGAL IRENE KYGAR, Respondent.
• Court: Idaho Court of Appeals

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McSHANE DAVID ERLEBACH, Petitioner-Appellant, v. MEGAN IRENE ERLEBACH, nka MEGAL IRENE KYGAR, Respondent.

No. 51236

Court of Appeals of Idaho

March 4, 2024

UNPUBLISHED OPINION

Appeal from the Magistrate Division of the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon Matthew R. Thompson, Magistrate.

Judgment modifying child custody, affirmed. Cosho Humphrey LLP; Katherine A. Meier, Boise, for appellant. Katherine A Meier argued.

Bevis, Thery, Henson &Katz, LLP; Phillip M. Bevis, Boise, for respondent. Phillip M. Bevis argued.

LORELLO, JUDGE

McShane David Erlebach appeals from a judgment modifying child custody. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

McShane and Megan Irene Erlebach, nka Megan Irene Kygar, divorced in 2017. The parties have three children, two of whom are minor children--one of the children was born in 2009 and the other was born in 2012. Less than a year following the divorce, Megan filed a petition seeking to modify the decree's custody and visitation schedule. Thereafter, the parties stipulated to a modification of custody and child support, and the magistrate court entered a judgment reflecting those modifications. At the time this judgment was entered, McShane and the children resided in Ontario, Oregon, while Megan resided in Caldwell, Idaho. However, in November 2021, Megan relocated to Fruitland, Idaho, and obtained new employment in Ontario.

A year later, Megan filed another petition to modify, alleging substantial changes in the parties' circumstances since the prior judgment. Specifically, Megan alleged substantial changes relating to her living situation and employment, as well as the parties' incomes and ability to co-parent. A trial on Megan's petition was held in 2023. After hearing the testimony of witnesses and reviewing the evidence admitted at trial, the magistrate court issued its oral findings and conclusions. The magistrate court found there was a material change in circumstances warranting modification of the judgment.^[1] The magistrate court further found that modification of the judgment is in the children's best interests and awarded each party equal physical custody. Thereafter, McShane sought permission to pursue an expedited appeal, and the request was granted. McShane now appeals.

II. STANDARD OF REVIEW

In a permissive appeal under Idaho Appellate Rule 12.1, the Court reviews the magistrate court's decision without the benefit of a district court appellate decision. Lamont v. Lamont, 158 Idaho 353, 356, 347 P.3d 645, 648 (2015). Decisions regarding child custody are committed to the sound discretion of the magistrate court, and the magistrate court's decision may be overturned on appeal only for an abuse of discretion. Id.; McGriff v. McGriff, 140 Idaho 642, 645, 99 P.3d 111, 114 (2004); Moye v. Moye, 102 Idaho 170, 171, 627 P.2d 799, 800 (1981).

When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently with any legal standards applicable to the specific choices before it; and (4) reached its decision by an exercise of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).

III. ANALYSIS

McShane contends the magistrate court abused its discretion in its analysis and consideration of certain "best interest of the child" factors outlined in I.C. § 32-717(1). Specifically, McShane challenges the magistrate court's findings and conclusions regarding the following factors: continuity and stability; character and circumstances; and the child's adjustment. I.C. § 32-717(1)(d)-(f). McShane contends the magistrate court's findings with respect to these factors were not supported by substantial and competent evidence. Megan responds that the record and applicable law supports the magistrate court's findings and its decision modifying the custody schedule. We hold that the magistrate court's findings and conclusions are supported by substantial and competent evidence and that McShane has failed to show the magistrate court erred in modifying the custody schedule.

A. I.C. § 32-717(1)(f)--Need to Promote Continuity and Stability

In determining custody, whether in the initial divorce decree or a subsequent modification, the welfare and best interests of the children are of paramount importance. Silva v. Silva, 142 Idaho 900, 904, 136 P.3d 371, 375 (2006); Roeh v. Roeh, 113 Idaho 557, 558, 746 P.2d 1016, 1017 (Ct. App. 1987). The controlling statute governing the best interests of the child, I.C. § 32-717, provides a nonexhaustive list of factors for the trial court to consider in making this determination. Silva, 142 Idaho at 904, 136 P.3d at 375. Included in the list are: the wishes of the child's parents; the wishes of the child; the interaction and interrelationship of the child with the parents and siblings; the child's adjustment to his or her home, school, and community; the character and circumstances of all the individuals involved; the need to promote continuity and stability in the life of the child; and domestic violence, whether or not in the presence of the child. I.C. § 32-717(1)(a)-(g). Although the court shall consider all relevant factors, the trial court must avoid considering irrelevant factors and avoid assigning too much weight to any particular factor. Silva, 142 Idaho at 904, 136 P.3d at 375.

In this case, the magistrate court found there was a material change in circumstances based, in part, on Megan's move to Fruitland, which is closer in proximity to the children's primary residence and schools.^[2] Based on Megan's relocation, and because she already had equal parenting time with the children over the summer, the magistrate court determined that additional time with Megan year-round would "enrich the children's sense of well-being as well as enhance the sense of their identity." The magistrate court found that "a restructuring of the custody schedule to a clear week on/week off throughout the year [would] offer greater consistency." After considering the factors articulated in I.C. § 32-717(1)(a)-(g), the magistrate court found that a week on/week off schedule would be "in the best interests of the children." Ultimately, the magistrate court modified the custody arrangement and awarded both parents "joint legal custody [and] joint physical custody through the school year and through the summer" pursuant to a "week on/week off" schedule.

On appeal, McShane argues the magistrate court abused its discretion when evaluating the best interests of the children by "assigning too much weight to the factor of continuity and stability while seemingly disregarding additional best interests factors that weighed" in his favor. In particular, McShane contends the magistrate court erred in failing to consider the effects the parties' work schedules have on the children. We disagree.

A review of the magistrate court's oral findings and conclusions reveals that the magistrate court did consider the parties' work schedules when evaluating the best interests of the children. Specifically, the magistrate court found that "each parent is similarly composed and involved and financially capable of being a presence" and involved in the children's lives. The magistrate court further noted that, while each parent has different availability, "each one has similar availability in so much as they have means of support and presence and time that they can invest in the children both in school, through extracurricular activity and through weekend familial enrichment." The record, therefore, shows the magistrate court considered the parties' work schedules as part of its best interests of the children analysis and nevertheless found that modification of the custody schedule is in the children's best interests.

McShane's reliance on Silva, 142 Idaho 900, 136 P.3d 371, as presenting an analogous situation that requires a different conclusion is unpersuasive. In Silva, this Court was asked to determine whether a parent's work schedule and resulting availability to care for a child is a relevant factor a court could consider when deciding child custody issues. Id. at 904, 136 P.3d at 375. The father in Silva worked twelve-hour night shifts from 6 p.m. to 6 a.m. Because of the father's work schedule, he was not available to be with the children when they woke up in the morning, during evenings, or when they woke up during the night. As a result, the children were required to spend nearly half of their nights away from home while in their father 's custody. Moreover, even when the father was available during the day, his fatigue interfered with his ability to care for the children who entertained themselves while he slept. This Court held consideration of a parent's work schedule and need for third-party childcare is appropriate in a child custody determination to the extent that such circumstances are shown to affect the well-being of the children. Id. at 906, 136 Idaho at 377. We clarified this holding should not be interpreted to mean that a working parent or a parent with a nontraditional work schedule is a presumptively inferior choice. Id. Rather, we merely held that a parent's work schedule may be one factor among many that can assist a magistrate court in tailoring a custody schedule that will best promote the children's welfare. Id.

This case is distinguishable from Silva. While the father's work schedule in Silva directly conflicted with his allotted parenting time, Megan's work schedule does not. Megan testified that she works twelve-hour shifts, from 7:00...