King v. King

• Decision Date: 18 June 2002
• Docket Number: No. 27271.,27271.
• Citation: 50 P.3d 453,137 Idaho 438
• Parties: Justin KING, Plaintiff-Respondent, v. Melissa Ann KING, Defendant-Appellant.
• Court: Idaho Supreme Court

50 P.3d 453

137 Idaho 438

Justin KING, Plaintiff-Respondent, v. Melissa Ann KING, Defendant-Appellant.

No. 27271.

Supreme Court of Idaho, Boise, May 2002 Term.

June 18, 2002.

Marc J. Weinpel, Idaho Falls, for appellant.

Grover & Archibald, Rigby, for respondent. Blair J. Grover argued. EISMANN, Justice.

In this appeal of the child custody provisions of a divorce decree, we affirm the judgment of the magistrate judge.

I. FACTS AND PROCEDURAL HISTORY

The respondent Justin King (Justin) and the appellant Melissa King (Melissa) were married on July 16, 1994. They have one child from the marriage named Megan, who was born on May 5, 1995, in Idaho Falls. During the latter three years of their marriage, Justin and Melissa resided in Jefferson County, Idaho, on Mountain River Ranch, which is owned by Justin's father.

Justin and Melissa had a dysfunctional relationship. On May 3 or 4, 1999, at Melissa's request, her mother came to Idaho, picked up Megan without Justin's knowledge or consent, and flew with Megan to Michigan, where Melissa's family lived. Melissa then drove to Michigan to join them.

On May 6, 1999, Justin filed a complaint for divorce and documents seeking temporary custody of Megan. The magistrate who was initially assigned to this case¹ entered an ex parte order granting temporary custody of Megan to Justin and setting a time and date for a hearing on temporary custody. Melissa attempted to secure a temporary custody order in Michigan, but the Michigan court ultimately deferred to the custody order previously entered in Idaho. Megan was then returned to Idaho.

On May 27, 1999, the newly-assigned magistrate held a temporary custody hearing. Both parties presented evidence, and the next day the magistrate issued a memorandum decision and order granting Justin primary physical custody of Megan during the pendency of the divorce proceedings.

This case was tried on August 19 and 20, 1999. By stipulation of the parties, the magistrate also considered the evidence presented during the hearing on temporary custody and the deposition testimony of Dr. Grace Cobiella, Justin's treating psychiatrist. At the conclusion of the trial, the magistrate took the matter under advisement.

On August 30, 1999, Justin's counsel submitted to the magistrate proposed findings of fact and conclusions of law. On October 4, 1999, the magistrate issued a memorandum decision in which he made various findings and concluded, among other things, that it was in Megan's best interests for Justin to have primary physical custody of her. The memorandum decision ended with a request that Justin's counsel prepare "further proposed Findings of Fact, Conclusions of Law and Judgment, including standard language relating to medical insurance." There is nothing in the record indicating that Justin's counsel submitted additional proposed findings of fact and conclusions of law. Melissa's counsel also submitted proposed findings of fact and conclusions of law that were dated August 31, 1999, but were not filed until October 18, 1999.

On January 21, 2000, the magistrate issued findings of fact and conclusions of law and a judgment. The magistrate's findings of fact adopted verbatim most of the proposed findings submitted by Justin's counsel on August 30, 1999. With respect to child custody, the judgment awarded both parties joint legal custody of Megan, and it awarded Justin primary physical custody. It provided that if the parties did not agree otherwise, Justin would have physical custody eighty percent of the time and that Melissa would have physical custody twenty percent of the time. Because Melissa had moved to Michigan, the judgment ordered that changes in physical custody would occur every ninety days, with Melissa paying the travel expenses. It also provided that she could have physical custody up to forty-five additional days during the months of June, July, and August of each year. Neither party was required to pay child support to the other.

Melissa appealed the child custody provisions of the judgment to the district court. Her challenge to the magistrate's findings included his adoption of findings of fact submitted by Justin's counsel. On January 4, 2001, the district court issued its decision affirming the judgment of the magistrate. Melissa then appealed to this Court.

II. ANALYSIS

When reviewing a case decided in the magistrate division that has been appealed to the district court, we review the magistrate's decision independently of, but with due regard for, the district court's intermediate appellate decision. Brinkmeyer v. Brinkmeyer, 135 Idaho 596, 21 P.3d 918 (2001).

A. Did the magistrate err by adopting the findings of fact and conclusions of law prepared by Justin's counsel?

Melissa argues that the magistrate judge erred by adopting verbatim proposed findings of fact submitted by Justin's counsel, a practice this Court has previously criticized. In Compton v. Gilmore, 98 Idaho 190, 560 P.2d 861 (1977), this Court stressed that under Rule 52 of the Idaho Rules of Civil Procedure, the trial court has the duty to find the facts specially; that the trial court's obligation under Rule 52 requires care on the part of the trial court in its consideration and adjudication of the facts; that when doing so the trial court must exercise its independent judgment rather than merely adopting the findings proposed by one party; and that if the trial court desires assistance from counsel, it should request proposed findings from all parties and then use them in drafting the court's findings of fact. We reiterated these admonitions in Cheney v. Jemmett, 107 Idaho 829, 831, 693 P.2d 1031, 1033 (1984).

When drafting the findings of fact issued on January 20, 2000, the magistrate judge did not adopt verbatim all of the proposed findings of fact submitted by Justin's counsel. The magistrate's findings of fact contain thirty-six numbered paragraphs regarding child custody. Comparing the proposed findings² with the magistrate's findings, twenty of those paragraphs were adopted verbatim from the proposed findings. An additional nine paragraphs were adopted from the proposed findings, but were modified.

The differences between the proposed findings submitted by Justin's counsel and the magistrate's findings show that the magistrate did not simply adopt verbatim the proposed findings. The magistrate obviously reviewed the proposed findings, rejected some, modified some, and adopted others, albeit the majority, verbatim. The record shows that the magistrate exercised independent judgment when deciding which of the proposed findings to adopt. Although the magistrate requested proposed findings of fact only from Justin's counsel, he did not commit reversible error by the manner in which he prepared his findings of fact. State v. Harmon, 131 Idaho 80, 952 P.2d 402 (1998).

B. Are findings of fact made by the magistrate supported by substantial and competent evidence?

In connection with her challenge to the manner in which the magistrate produced the findings of fact, Melissa also argues that three of the findings are not supported by substantial and competent evidence. A trial court's findings of fact will not be set aside on appeal unless they are clearly erroneous. Bramwell v. South Rigby Canal Co., 136 Idaho 648, 39 P.3d 588 (2001); IDAHO R. CIV. P. 52(a). When deciding whether findings of fact are clearly erroneous, this Court does not substitute its view of the facts for that of the trial court. Bramwell v. South Rigby Canal Co., 136 Idaho 648, 39 P.3d 588 (2001). It is the province of the trial court to weigh conflicting evidence and to judge the credibility of witnesses. Rowley v. Fuhrman, 133 Idaho 105, 982 P.2d 940 (1999). On appeal, this Court examines the record to see if challenged findings of fact are supported by substantial and competent evidence. Id. Evidence is regarded as substantial if a reasonable trier of fact would accept it and rely upon it in determining whether a disputed point of fact has been proven. Bramwell v. South Rigby Canal Co., 136 Idaho 648, 39 P.3d 588 (2001). Melissa first challenges the magistrate's findings regarding the lack of cleanliness of the marital home. The magistrate made the following findings:

11. Melissa was a victim of abuse when residing with her mother and step-father and has indicated she does not like being at home. She provides little structure for Megan, such as regular bed and meal times. Until Melissa moved from the home in early May, it was always very dirty: beds were not made, the sink was full of dirty dishes, the laundry room full of dirty clothes, and the floors not cleaned.

12. Since the temporary custody hearing May 28, Hunt [a rehabilitation counselor who testified as an expert witness] has been at the parties [sic] Mountain River Ranch home at least weekly and was there on three unannounced visits. It is totally different. Justin, with the assistance of Julie [Justin's sister], has thoroughly cleaned it. On every visit, including those unannounced, it was clean and tidy. The dishes were done, cabinets clean, beds made, and laundry washed. At times it was still folded in the laundry room, but there were not stacks of dirty clothes. On several visits, when Megan was present, she appeared happy and contented and continued appropriate normal and natural expressions of affection for Justin, and he for her. It was and continues to be Hunt's opinion that Justin is the parent better able to provide for Megan's welfare.

....

22. Since the temporary hearing, Justin has provided custodial parental care for Megan. He cooks, cleans and does the laundry. He helps her bathe, combs her hair, reads her stories, and puts her to bed. Since the hearing, the cleanliness and orderliness of the home is totally different: It is now clean and neat, unlike before where it was dirty and disorderly.

....

34. Melissa is not a good housekeeper. The house at Mountain River Ranch was

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