Ireland v. Ireland, 19540

Decision Date09 June 1993
Docket NumberNo. 19540,19540
PartiesMarlene Lorraine IRELAND, Plaintiff-Appellant, Cross-Respondent, v. Milton Harold IRELAND, Defendant-Respondent, Cross-Appellant. Boise, January 1993 Term
CourtIdaho Supreme Court

Allen H. Browning, Boise, for respondent.

TROUT, Justice.

I. BACKGROUND AND PRIOR PROCEEDINGS

This is an action for modification of child support payments brought by Marlene Ireland (Marlene) against Milton Ireland (Milton). Marlene and Milton were divorced in 1980 and Marlene was awarded custody of their three children: Daniel, born October 20, 1972; Christina, born February 4, 1974; and Robin, born April 29, 1979. Under the original decree, Milton was to pay $83.33 per child per month in child support. In September of 1985 the child support payments At the time the motion for modification was filed in March, 1989, Daniel Ireland (Daniel) was working full-time and attending high school at night. Daniel lived with Marlene until September, 1989, when he moved in with Marlene's boyfriend and paid $100 per month in rent. He lived with Marlene again for a short time in December, until she filed a "beyond-the-control" petition against him in juvenile court and he was placed in a shelter care facility. He ultimately went to live with his paternal grandparents in January of 1990.

[123 Idaho 957] were increased to $150.00 per child per month. On March 7, 1989, Marlene filed a motion for an order to show cause why the child support payments should not be increased to $975.00 per month. The trial court thereafter held hearings relating to child custody, child support, emancipation and attorney fees on four separate days spanning a period from December, 1989, until March, 1990. This was necessitated by the activities of the children and parents, particularly Marlene, in changing their respective opinions about where the children ought to live. The court entered a final order in July, 1990.

In August 1989, Christina Ireland (Christina) moved to Utah to live with Milton. On December 28, the trial court granted Milton temporary custody of Christina, effective as of September, 1989. In February, 1990, without obtaining the approval of the trial court or informing Milton, Marlene brought Christina back from Utah. When Christina disobeyed the court's order to return to Utah, the court reluctantly placed Christina back in Marlene's custody effective March 9, 1990.

Since the time of the divorce, Marlene held a number of temporary and part-time jobs. As of 1989, she was within two semesters of an associate degree in drafting and possessed an inactive real estate license. In 1988 and 1989, Marlene did some work as an apprentice drafter, earning as much as $7.00 per hour. A vocational evaluator interviewed Marlene to assess her earning potential and testified that Marlene had the ability to earn $8.75 per hour as an apprentice drafter.

In its final order of July, 1990, the trial court found that Marlene had a potential income of $1,400.00 per month and that she was underemployed. The court also found that Daniel had been emancipated since the filing of Marlene's motion in March, 1989. The court then held that there had been no substantial and material change in circumstances as of the time Marlene filed her motion, although there was a material and permanent change as of March, 1990, when Christina returned to her mother's home.

The trial court awarded Milton attorney fees finding that Milton was the prevailing party and that Marlene had frivolously filed her motion to increase child support. In support of the award of attorney fees, the court noted that Marlene had rejected Milton's offer of judgment under I.R.C.P. 68. The court ordered Milton's attorney fees paid through an offset against his child support payments.

Finally, the court increased the child support payments beginning in March, 1990, and then reduced them to reflect a finding that Milton's income was reduced in June, 1990. This reduction was based on a letter sent by Milton after the trial which indicated that Milton's income had been reduced by eighteen percent.

On appeal, the district judge found that Milton was not required to file a separate motion under I.C. § 32-709 in order to claim setoffs against his child support obligation. The district judge affirmed the trial court's finding that Daniel was emancipated and that Marlene was underemployed. The district judge also affirmed the trial court's findings concerning the change in circumstances. However, the district judge reversed the trial court's award of attorney fees to Milton and found that there was not substantial and competent evidence to support the finding that Milton's income had been reduced. Marlene appealed to this Court and Milton cross-appealed on the issues of attorney fees and evidence of income reduction.

II. STANDARD OF REVIEW

This Court reviews the decision of a magistrate judge independently of a district

[123 Idaho 958] judge sitting in an appellate capacity, but with due regard to the district judge's ruling. McNelis v. McNelis, 119 Idaho 349, 351, 806 P.2d 442, 444 (1991). We will uphold the magistrate's findings of fact if supported by substantial and competent evidence. Shurtliff v. Shurtliff, 112 Idaho 1031, 1033, 739 P.2d 330, 332 (1987).

III. SUBSTANTIAL AND COMPETENT EVIDENCE SUPPORTS THE TRIAL COURT'S FINDING THAT DANIEL WAS AN EMANCIPATED MINOR

Marlene argues that the trial court erred in finding that Daniel was an emancipated minor on March 9, 1989, because he was only sixteen years old at that time. We disagree.

Substantial and competent evidence supports the trial court's finding of emancipation. In addressing the issue of emancipation, the Court has indicated that the age of the child is not the controlling factor. Embree v. Embree, 85 Idaho 443, 448, 380 P.2d 216, 219 (1963). Economic self-sufficiency resulting from earnings is a factor which a trial court may properly consider in relieving a parent from child support obligations. Id. at 449, 380 P.2d at 220. In Embree, the minor child was employed six hours per day, five days per week, while attending high school. The minor had purchased and paid for the upkeep of an automobile and was sustaining himself through his employment. Under these facts, the Court found that the child was emancipated. Id. at 449, 380 P.2d at 220.

Daniel's circumstances were very similar to that of the emancipated minor in Embree. In 1989, Daniel was working full-time while attending high school at night. He bought a truck and paid for all of its operating costs including insurance. In addition, Daniel paid for his groceries from July, 1988, to September, 1989, and even loaned his mother money. During this time, Daniel did not receive support from either parent and neither parent claimed him as a dependent on their 1988 tax returns. Daniel was without parental supervision in his activities and relied on Marlene only for a place to sleep. All these facts indicate that Daniel was economically self-sufficient. Therefore, although we are concerned about the finding of emancipation at Daniel's age, the trial court's conclusion on the issue of emancipation is supported by substantial and competent evidence.

IV. SUBSTANTIAL AND COMPETENT EVIDENCE SUPPORTS THE TRIAL COURT'S FINDING THAT MARLENE WAS UNDEREMPLOYED

Marlene argues that the trial court incorrectly interpreted the "potential income" section of the Idaho Child Support Guidelines by relying on testimony about Marlene's future income potential rather than her work history. In determining the potential income of a parent, the trial court should consider the "employment potential and probable earnings level based on the parent's work history, occupational qualifications, and prevailing job opportunities and earnings levels in the community." I.C.S.G. § 6(b)(1) (1989). Under these guidelines it is clear that "potential" income is not limited strictly to the amount a parent has earned in the past. The calculation includes all the factors listed in section 6(b)(1) of the I.C.S.G.

At the hearing, Marlene testified that she had worked sporadically as an apprentice drafter in the past and earned as much as $7.00 per hour. John Belville testified that he met with Marlene before trial and learned about her work history and job qualifications. As a "vocational evaluator," Belville stated that he was familiar with job opportunities and earnings levels in the Boise area. Belville then testified that $8.75 per hour ($1,400.00 per month) was an average wage for an apprentice drafter. On these facts, Belville testified that Marlene had the ability to earn $1,400.00 per month based on her current qualifications if she worked hard and stayed in one job. Accordingly, we find that there was substantial and competent evidence to support the trial court's conclusion

[123 Idaho 959] that Marlene's potential income was $1,400.00 and that she was underemployed.

V. THERE WAS NOT A SUBSTANTIAL AND MATERIAL CHANGE IN CIRCUMSTANCES SHOWN AT THE TIME MARLENE FILED HER MOTION TO MODIFY CHILD SUPPORT

A decree with child support provisions may be modified "only upon a showing of a substantial and material change of circumstances." I.C. § 32-709. Modification of child support on the ground of material change in circumstances is within the sound discretion of the trial court and will not be altered on appeal unless there is a manifest abuse of discretion. Gordon v. Gordon, 118 Idaho 804, 805, 800 P.2d 1018, 1019 (1990), citing Embree, 85 Idaho at 450-51, 380 P.2d at 221. Where the findings of the trial court are supported by substantial, competent evidence they will not be disturbed on appeal. See Jones v. Jones, 117 Idaho 621, 626, 790 P.2d 914, 919 (1990).

In her motion of March, 1989, Marlene argued that the increased cost of raising teenaged children amounted to a substantial and material change of...

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