Hopper v. Hopper
| Citation | 167 P.3d 761,144 Idaho 624 |
| Decision Date | 19 March 2007 |
| Docket Number | No. 31423.,31423. |
| Parties | Christopher F.F. HOPPER, Plaintiff-Appellant, v. Suzanne HOPPER, Defendant-Respondent. |
| Court | United States State Supreme Court of Idaho |
Christopher Hopper (Chris) and Suzanne Hopper (Suzanne) were married in 1999 while residing in Boise, Idaho, where they made their marital home. Their only son, Caidan, was born in January 2003. In March 2003, unknown to Chris, Suzanne contacted her mother in Stevensville, Montana, about coming to live with her. Arrangements were made during the ensuing months, and on June 17, 2003, Suzanne took Caidan and secretly left for Montana. Caidan was five months old at the time.
Suzanne obtained a domestic violence protection order against Chris in Ravalli County, Montana, and later filed a petition for divorce in Missoula County, Montana. The claim of domestic violence was subsequently determined to be false. Chris discovered Suzanne's whereabouts when he was served with the ex parte temporary protection order, and shortly thereafter he filed for divorce in Ada County, Idaho. The Montana actions were consolidated and eventually dismissed on August 14, 2003 in deference to Idaho's jurisdiction over the matter.
Chris immediately filed a motion for temporary custody which was heard at the end of September. On October 2, 2003, the magistrate issued an order awarding temporary custody of Caidan to Suzanne. Chris had no contact with Caidan from the time Suzanne left in June until the commencement of court-ordered visitation in October. The combined result of Suzanne leaving the state and filing the actions in Montana was to cut off the relationship between Chris and Caidan for over three months. The magistrate judge stated that the arrangement did not satisfy "the court's sense of justice" as between the parties but concluded that Caidan's interests would best be served by remaining in Suzanne's custody during the pendency of the case, subject to substantial visitation by Chris. The magistrate declined to award Suzanne financial support, noting that her decision to move to Montana had increased both parties' expenses and stating that support would be entered in the event she returned to Idaho.
The magistrate judge appointed Dr. Mack Stephenson, Ph.D., a licensed psychologist, to conduct a parenting evaluation to assist in making a final custody determination. Dr. Stephenson's report recommended that the parties share joint legal custody of Caidan, with Suzanne having primary physical custody and Chris receiving frequent visitation. Dr. Stephenson based his conclusion on the finding that Suzanne had historically been the primary parent and the one with whom Caidan had spent more time, noting that children of that age need stability and consistency, including a stable relationship with a primary caregiver.
The parties stipulated to a divorce and agreed upon a division of their community property and debts. The custody issue was tried before the court on April 13, 2004, and on June 2, 2004 the trial court issued its Findings of Fact, Conclusions of Law and Order granting sole legal and physical custody to Suzanne subject to visitation by Chris. The trial court stated that its custody determination was not intended to punish either party but was the best result for Caidan. The trial court reaffirmed and expanded its earlier findings made in connection with the order for temporary custody renewing its inference that the parties had tacitly agreed Suzanne would be the primary caregiver. The trial court found joint physical custody to be impractical because of the distance between the parties and also inadvisable due to Caidan's need for stability. The trial court also rejected joint legal custody because of the inability of the parties to reach consensus and follow through on agreements without court involvement. The trial court altered the visitation schedule recommended by Dr. Stephenson in order to reduce the amount of travel Caidan would have, with the consequence that Chris was required to make frequent trips to Montana in order to exercise his visitation. Rather than require Suzanne to reimburse a portion of the travel expenses, the trial court withheld an award of child support, finding that the cost of travel occasioned by Suzanne's move far exceeded the amount of child support that would otherwise be due.
Counsel for Chris was granted leave to withdraw, and Chris, who is an attorney, has represented himself. He immediately moved to reopen discovery and depose Dr. Stephenson. While that motion was pending, the trial court entered an Order for Custody and Child Support and Award of Costs as a Matter of Right on August 3, 2004. Chris also filed a Motion to Reconsider, Motion for New Trial, Motion to Amend and to Make Additional Findings of Fact and Conclusions of Law, Motion to Augment Record with Montana Documents, and Motion for Permission to Direct Appeal the Idaho Supreme Court. He moved for a stay pending resolution of the post trial motions and appeal and requested an award of attorney fees relating to the Montana actions. The magistrate judge allowed the documents from the Montana proceedings to be included in the record, but denied the remainder of the motions. This Court granted leave for Chris to appeal directly to the Supreme Court.
Chris contends the trial court abused its discretion by awarding custody to Suzanne even though she had secretly removed Caidan from the state and deprived him of any contact with Chris for over three months. He argues that the custody arrangement ignores statutory standards, violates public policy, and deprives him of meaningful visitation. He also argues that the trial court impermissibly relied on factors related to his religion and that certain factual findings were clearly erroneous.
Child custody determinations involving minor children are left to the sound discretion of the trial court, and will not be overturned on appeal absent an abuse of discretion. Hoskinson v. Hoskinson, 139 Idaho 448, 454, 80 P.3d 1049, 1055 (2003); Roberts v. Roberts, 138 Idaho 401, 403, 64 P.3d 327, 329 (2003). In reviewing such decisions, the relevant inquiry is whether the trial court (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the choices before it; and (3) reached its decision by an exercise of reason. Hoskinson, supra; Roberts, supra. It is the province of the trier of fact to weigh conflicting evidence and testimony and to judge the credibility of witnesses. The trial court's findings of fact in a court tried case will be upheld if they are supported by substantial and competent evidence, even if the evidence is conflicting, and will be liberally construed in favor of the judgment entered. State v. Hart, 142 Idaho 721, 723, 132 P.3d 1249, 1251 (2006) (quoting Roell v. Boise City, 134 Idaho 214, 216, 999 P.2d 251, 253 (2000)). With respect to questions of law, however, this Court exercises free review to determine whether the law was properly construed and applied. Id.
Suzanne argues that Chris' appeal is untimely and should be dismissed. Subsequent to the grant of permissive appeal Suzanne moved to dismiss the appeal as untimely. The Court denied the motion and will not revisit the issue.
Idaho Code § 32-717B(4) provides as follows: "Except as provided in subsection (5), of this section, absent a preponderance of the evidence to the contrary, there shall be a presumption that joint custody is in the best interests of a minor child or children." That presumption can be overcome if a parent is found by the court to be a habitual perpetrator of domestic violence. I.C. § 32-717B(5). That condition does not exist in this case. Idaho Code § 32-1007 provides the following:
The father and mother of a legitimate unmarried minor child are equally entitled to its custody, services and earnings. If either the father or mother be dead or be unable or refuse to take the custody or has abandoned his or her family, the other is entitled to the child's custody, services and earnings.
None of the conditions that would cause a loss of equal custody rights defined in I.C. § 32-1007 exists is this case.
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