Hoskinson v. Hoskinson
| Decision Date | 21 November 2003 |
| Docket Number | No. 27786.,27786. |
| Citation | 80 P.3d 1049,139 Idaho 448 |
| Parties | Reed HOSKINSON, Plaintiff-Respondent, v. Mary Elizabeth HOSKINSON, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Smith & Hancock, Rexburg, for appellant. J.D. Hancock argued.
Swafford & Duffin, Chtd., Idaho Falls, for respondent. Ronald L. Swafford argued.
Reed Hoskinson ("Reed") and Elizabeth Hoskinson ("Elizabeth") were married February 23, 1997, and had a child that year. In 2000 Reed obtained a divorce decree against Elizabeth. Elizabeth appealed to the district court, which affirmed the magistrate judge's decision. Elizabeth argues that the magistrate judge made errors that warrant reversal of the decision, including: (1) the magistrate's decision to award primary physical custody of the child to Reed; (2) the magistrate's denial of Elizabeth's motion for leave to amend her pleadings; (3) the magistrate's characterization and division of the community property; (4) the magistrate's denial of Elizabeth's request for continuing separate maintenance and attorney fees; and (5) the magistrate's denial of Elizabeth's request for reimbursement from Reed for providing care for the child. In addition Elizabeth argues that the magistrate erred by granting Reed's petition to modify the order establishing custody and visitation of the child.
Reed and Elizabeth Hoskinson began living together in May 1995. Elizabeth learned she was pregnant with Reed's child. The couple entered a ceremonial marriage February 23, 1997. Elizabeth gave birth to their child on October 10, 1997.
On December 18, 1998, Reed sued for divorce alleging the marriage date as February 23, 1997, which is the ceremonial marriage date. Reed cited irreconcilable differences as the grounds for divorce. He requested primary physical custody of the child, but he agreed to share legal custody with Elizabeth. The complaint sought to compel Elizabeth to pay child support and to provide medical insurance coverage for the child. The complaint also requested a distribution of community assets and debts.
Elizabeth answered and counterclaimed on January 15, 1999. The answer and counterclaim were amended April 15, 1999. The amended counterclaim sought a divorce based on extreme cruelty and adultery. Both the counterclaim and amended counterclaim stated that Elizabeth and Reed were married on February 23, 1997, the same date alleged by Reed. Elizabeth requested primary physical custody of the child but agreed to share joint legal custody with Reed. Elizabeth sought to compel Reed to pay child support and to provide medical insurance coverage for the child. Elizabeth requested a disproportionate award of community property and debt as well as maintenance and attorney fees.
On the first day of trial Elizabeth moved to amend her counterclaim to allege a common law marriage date of May 1, 1995, arguing that prior interrogatories had alerted Reed to the fact that she intended to raise the issue. She suggested a continuance of the proceedings to avoid any prejudice. Both motions were denied. The magistrate based his ruling on the tardiness of the motion, the potential prejudice to Reed and the fact that Elizabeth's answer and counterclaim had both confirmed the February 23, 1997, ceremonial marriage date as the actual date of marriage for purposes of trial. The magistrate concluded that a continuance was not warranted given the age of the case, the fact that Reed would continue to be subject to the court's temporary orders, and the court's concern for the stability and welfare of the child.
Reed was granted a divorce on grounds of irreconcilable differences. Reed and Elizabeth were ordered to share joint legal and physical custody of the child, but the child would live with Reed, except during periods of reasonable visitation with Elizabeth. Elizabeth was ordered to pay Reed $195.00 monthly child support. Reed was allowed to claim the child as an exemption for income taxation but was required to pay Elizabeth $26.00 each month as reimbursement for her share of the tax savings. Reed was ordered to pay 79% and Elizabeth was ordered to pay 21% of all reasonable, net work-related childcare costs. The parties were ordered to maintain health care insurance coverage for the child when it is available through employment at a reasonable cost. The decree also divided the separate and community property and debts between Reed and Elizabeth.
The magistrate issued an order defining custody on July 24, 2000, providing that Reed would be the custodial parent, subject to extensive visitation with Elizabeth. The order also provided: "Reed shall offer Elizabeth the option of caring for the child whenever Reed is working, and Elizabeth shall offer Reed the option of caring for the child whenever Elizabeth is working." Elizabeth took advantage of this provision and provided day care for the child. The child spent approximately 48% of his time with Elizabeth during the months of July through November of 2000. However, the child spent only 25% of the nights with Elizabeth during that period.
Elizabeth appealed. Thereafter, Reed petitioned to modify child custody and visitation. Elizabeth responded and counterclaimed, seeking to modify child custody and visitation. The magistrate granted a motion by Elizabeth to amend her counterclaim to allege a material substantial change of circumstances. She also moved to require Reed to pay childcare and subsequently asked the court to enter an order requiring Reed to pay her the reasonable value of support for the care of the child while Reed is working. The magistrate denied Elizabeth's motion for compensation on the bases that: (1) if the motion was a motion to alter or amend the judgment, it was not timely; and (2) if the motion was a motion to modify the child support provisions of the divorce decree, it was not supported by a material, substantial and permanent change in circumstances.
The magistrate made oral findings of fact and conclusions of law on the motions to modify the child custody and visitation order on February 1, 2001, and filed an amended visitation order on March 30, 2001.
Elizabeth filed a notice of appeal to the district court on February 9, 2001, and an amended notice of appeal on March 21, 2001, appealing the magistrate's orders denying her compensation for providing childcare and modifying visitation.
In a decision filed August 3, 2001, the district court affirmed the decisions of the magistrate relating to: (1) custody; (2) Elizabeth's motion to amend her answer and counterclaim to allege a common law marriage date of May 1, 1995; (3) the characterization and division of the parties' property; (4) Elizabeth's counterclaim for divorce based on grounds of extreme cruelty or adultery; (5) Elizabeth's request for continuing separate maintenance; (6) certain evidentiary questions; and (7) Elizabeth's request for attorney fees and costs.
On August 22, 2001, Elizabeth sought to appeal to this Court from the memorandum decision, findings and conclusions, judgment and order entered on June 13, 2000, the magistrate's order for visitation entered on July 24, 2000, and from the district court's memorandum decision and judgment on appeal dated August 3, 2001. She filed an amended notice of appeal on August 28, 2001.
Because the district court had not yet made a decision on the appeal from the magistrate's order modifying custody/visitation, Elizabeth moved to suspend the appeal until a decision was reached. The motion was granted on the condition that she file an amended notice of appeal from that order within fourteen days from the date of its filing in the district court, at which time the appeal would proceed unless otherwise provided by an order of this Court.
The district court's second memorandum decision was filed on August 19, 2002. The district court affirmed the magistrate's decision to deny Elizabeth's motion for compensation for providing childcare as well as the magistrate's decision to grant Reed's petition to modify visitation. Elizabeth did not amend her notice of appeal to reflect the decision of the district court as required by this Court's order of February 22, 2002. Elizabeth asserts that the magistrate erred 1) by awarding primary physical custody of the child to Reed, 2) in disallowing her motion to amend to show the date of the marriage to be the date they commenced living together as husband and wife, namely, May 1, 1995, 3) in characterizing and dividing their property, 4) in failing to award her continuing separate maintenance. Further, she argues that the magistrate abused his discretion by not properly applying the Idaho Child Support Guidelines to the evidence presented at the December 13, 2000, hearing and in modifying the custody act of July 24, 2000, by acting outside legal standards and boundaries, and by failing to use reason when he modified the order in favor of Reed. Elizabeth seeks attorney fees and costs.
Since this appeal arises from a decision of the district court affirming a decision of the magistrate division, this Court will review the magistrate's decision "independently, with due regard for the decision of the district court acting in its appellate capacity." Stevens v. Stevens, 135 Idaho 224, 227, 16 P.3d 900, 903 (2000) (citing Keller v. Keller, 130 Idaho 661, 663, 946 P.2d 623, 625 (1997)). "The magistrate's findings of fact will be upheld if they are supported by substantial and competent evidence." Worzala v. Worzala, 128 Idaho 408, 411, 913 P.2d 1178, 1181 (1996) (citing Smith v. Smith, 124 Idaho 431, 436, 860 P.2d 634, 639 (1993)).
The determination of the custody of minor children is committed to the sound discretion of the trial court. Unless such discretion is abused, ...
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