Hoggan v. Clark

• Decision Date: 10 May 2023
• Docket Number: 50055
• Parties: RITA ELAINE HOGGAN, Petitioner-Appellant, v. COLE EZEKIAL CLARK, Respondent.
• Court: Idaho Court of Appeals

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RITA ELAINE HOGGAN, Petitioner-Appellant, v. COLE EZEKIAL CLARK, Respondent.

No. 50055

Court of Appeals of Idaho

May 10, 2023

UNPUBLISHED OPINION

Appeal from the District Court of the Seventh Judicial District State of Idaho, Bingham County. Hon. Darren B. Simpson District Judge. Hon. Cleve B. Colson, Magistrate.

Order of the district court, on intermediate appeal from the magistrate court, affirming in part and vacating in part judgment granting modification of child custody and child support, affirmed.

Smith Woolf Anderson & Wilkinson, PLLC; Aaron J. Woolf, Idaho Falls, for appellant.

Blaser, Oleson & Lloyd, Chartered; Justin B. Oleson Blackfoot, for respondent.

LORELLO, CHIEF JUDGE

Rita Elaine Hoggan appeals from the order of the district court, on intermediate appeal from the magistrate court, affirming in part and vacating in part a judgment granting modification of child custody and child support. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Hoggan and Cole Ezekial Clark are the parents of the minor child in this action. Pursuant to an agreement reached by the parties, the magistrate court entered a judgment granting the parties joint legal and physical custody of the child. The judgment did not order either party to pay child support. Just over six months later, Hoggan filed a petition to modify the judgment seeking, in part, to require Clark to pay child support.

The magistrate court held a hearing on Hoggan's petition to modify. At the hearing, Hoggan testified that she has a bachelor's degree in applied physics and a master's degree in nuclear science and engineering. According to Hoggan, her annual salary had been around $75,000 but dropped to $40,000 in May 2018 when she began working part-time. About four months later, she left that employment. Hoggan testified that, in looking for new employment, she applied on August 9, 2021, for a position as a "thermal properties research analyst." When asked what the salary was for that particular position, Hoggan replied that she did not know. Clark's counsel then asked Hoggan "what, in [her] experience, does that type of position pay if [she] were to get that position?" Hoggan's counsel objected based on hearsay, foundation, and relevance. After the magistrate court overruled the objection, Hoggan testified that she thought "it would be, like, between 65 and 85,000 dollars a year."

After the hearing, the magistrate court entered findings of fact and conclusions of law. Relevant to this appeal, the magistrate court found that Hoggan "has neglected to utilize her work experience and qualifications to obtain a job in her field" and "has recently sought work in her field, but only in the last 4-5 months." The magistrate court also found that "it is clear" that Hoggan "has remained voluntarily underemployed for the last three years." Based on her past income and testimony regarding the expected pay for the position for which she recently applied, the magistrate court imputed "a gross income of $65,000 per year" to Hoggan. The magistrate court entered an amended judgment ordering Hoggan to pay child support to Clark.

Both parties moved for reconsideration, with Hoggan contending in part that her imputed income should have been minimum wage rather than $65,000. After a hearing on both motions to reconsider, the magistrate court further amended the judgment but did not alter its conclusion imputing $65,000 to Hoggan in potential annual income. Hoggan appealed to the district court, asserting, among other issues, that the magistrate court abused its discretion in imputing $65,000 in potential income and erred in finding that she "has applied for employment only the past four to five months" and that "the most current job for which [she] applied had an income range of $65,000.00 to $85,000.00."^[1] According to the district court, Hoggan also asserted that "her testimony about what she could be paid" at the job she applied for "was hearsay." The district court vacated the amended judgment in part and remanded based on other issues Hoggan raised (which are not relevant to this appeal) but affirmed the magistrate court's findings regarding her imputed income and conclusion that she should be imputed $65,000 of potential income. In addition, the district court denied Hoggan's request for attorney fees incurred on intermediate appeal. Hoggan again appeals.

II. STANDARD OF REVIEW

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 therefor, and either affirm or reverse the district court.

III. ANALYSIS

Hoggan asserts the magistrate court erred in finding that she only recently began looking for work in her field.^[2] She further asserts that the magistrate court erred by overruling her hearsay objection, in finding the salary for the job she applied for ranged between $65,000 to $85,000, and in imputing $65,000 in potential income to her. Hoggan also asserts the district court erred by failing to award her attorney fees on intermediate appeal. Clark responds that the finding that Hoggan recently began looking for work was a credibility determination by the magistrate court, that the objected-to testimony was not hearsay, that substantial evidence supports the finding regarding the expected salary range of the job for which Hoggan applied, and that the magistrate court did not abuse its discretion by imputing $65,000 in potential income to Hoggan. Clark further responds that the district court did not err by denying Hoggan's request for attorney fees incurred on intermediate appeal. Finally, both parties request attorney fees incurred in this appeal. We hold that Hoggan has failed to show error. Because we conclude that Hoggan's appeal is frivolous, we award attorney fees incurred in this appeal to Clark.

A. Finding that Hoggan Only Recently Began Looking for Work in Her Field

Hoggan asserts that there is not substantial and competent evidence for the magistrate court's finding that she "has recently sought work in her field, but only in the last 4-5 months." Clark responds that the magistrate court "was in the best position to assess [Hoggan's] credibility with regard to her efforts to seek employment." Clark further responds that the magistrate court's "finding as to when [Hoggan] began to seek employment has little, if any, bearing on the amount of potential income imputed" to Hoggan.

Hoggan asserts the magistrate court's finding lacks support from substantial and competent evidence because "the only evidence regarding [her] job search was that [she] had regularly sought employment from the time she left her employment in October 2018." Hoggan also asserts that she "had been applying nearly every Tuesday for employment [at the place she previously worked] since the Spring of 2020." Hoggan, however, fails to provide supporting citations to the record in this section of her brief to support these assertions. Such citations are required to make any argument. I.A.R. 35(a)(6); Groveland Water &Sewer, Dist. v. City of Blackfoot, 169 Idaho 936, 941-42, 505 P.3d 722, 727-28 (2022). This Court will not search the record on appeal for error. Kelly v. Kelly, 165 Idaho 716, 732, 451 P.3d 429, 445 (2019). We note that Hoggan cites to the record in her statement of the case and that some of these citations could support the assertions she makes in the argument section of her brief, but this does not comply with I.A.R. 35(a). Citations to the record are not required in the statement of the case, I.A.R. 35(a)(3), but are required in the argument section of the brief, I.A.R. 35(a)(6). An appellant forfeits an argument by failing to support the argument in compliance with the Idaho Appellate Rules. Liponis v. Bach, 149 Idaho 372, 375, 234 P.3d 696, 699 (2010). Thus, the citations to the record provided in Hoggan's statement of the case do not cure her failure to provide relevant supporting citations to the record in the argument section of her brief.

Even if Hoggan had provided proper citations to the record to support her assertions, her argument fails on the merits. As the district court observed, the magistrate court had the "discretion to weigh the strength and credibility of the evidence," which "include[d] rejecting testimony which [the magistrate court] found lacking in credibility." On appeal, Hoggan asserts that the district court erred because the magistrate court "did not ever make a factual finding that [Hoggan's] testimony regarding her efforts to find employment lacked credibility." But factual findings can be implicit as well as express. See Ziegler v. Ziegler, 107 Idaho 527, 535, 691 P.2d 773, 781 (Ct. App. 1985). We will not disturb implicit findings that are supported by substantial and competent evidence. City of Meridian v. Petra Inc., 154 Idaho 425, 444, 299 P.3d 232, 251 (2013).

We first address whether the magistrate court made an implicit finding. At the hearing on Hoggan's motion to reconsider she asserted that her testimony showed she had "applied continuously" since 2018 to "obtain additional employment" at the place where she worked previously and "at other places." Despite this argument, the...