Koester v. Koester
| Decision Date | 27 November 1978 |
| Docket Number | No. 12410,12410 |
| Citation | 99 Idaho 654,586 P.2d 1370 |
| Parties | Robert J. KOESTER, Plaintiff-Respondent Cross-Appellant, v. Cleo M. KOESTER, Defendant-Appellant Cross-Respondent. |
| Court | Idaho Supreme Court |
Terry C. Copple of Davison, Copple & Copple, Boise, for defendant-appellant and cross-respondent.
Byron J. Johnson, Boise, for plaintiff-respondent and cross-appellant.
This appeal is from a divorce decree also involving a division of marital assets, custody, support and visitation rights of the parties. Both parties appeal from a judgment of the district court which modified in part a divorce decree by the magistrate's division.
Robert and Cleo Koester, respondent and appellant respectively, were married in 1963 and two children were born of that marriage. On April 4, 1974, the parties separated and drafted an agreement temporarily dividing marital assets and giving custody of the children to respondent. After the parties separated, appellant moved from Wisconsin to Nebraska. 1 When attempts at reconciliation failed, respondent, who had secured a teaching position in Idaho, moved from Wisconsin to Idaho and prior to entry of the Nebraska decree in the separate maintenance action initiated the present divorce action in the magistrate's division of the Fourth Judicial District Court.
The magistrate granted the parties 2 a divorce and gave custody of the children to respondent, finding that the children's best interest dictated that respondent retain custody of the children. The case was reopened to admit evidence concerning appellant's earning capacity and her recent move from Nebraska to Idaho that enabled her to exercise maximum visitation rights. In a separate memorandum opinion the magistrate established visitation rights, granting appellant visitation rights on alternate weekends, holidays, and for a thirty day period during school summer vacation. In a later memorandum opinion the magistrate determined the parties' claims for costs, attorney fees, alimony, property settlement rights and child support payments. Costs, attorney fees and appellant's request for alimony were denied. The magistrate found that the April 4, 1974, property settlement agreement was not binding, but the parties' division of marital assets and liabilities would approximate a fair allocation if appellant were awarded a $1500 reimbursement. Concerning the claims for child support, the magistrate found:
It is clear that (appellant) has the financial ability to Contribute to the support of the children. It is also clear that (respondent) has the ability to Support the children without a contribution from (appellant). While it is not a direct equivalency, relieving (appellant) from the child support obligation will at least in part compensate (appellant) for the contribution she made toward (respondent's) education. Therefore, (respondent's) claim for support is denied . . . . Should the needs of the children dictate this provision is subject to further court order. (Emphasis added.)
Appellant appealed the magistrate's determination to the district court. Respondent did not, however, contest the magistrate's determination. On appeal, the district court heard the case based on the appellate record from the magistrate's division and took the matter under advisement. Prior to a determination on the merits and while the case was under advisement, appellant moved to supplement the appellate record to reflect a material change of circumstances that had occurred since the appeal. The district court granted the motion to supplement the appellate record and the parties stipulated that the change in circumstances could be considered by the district court on affidavits.
In her affidavit before the district court, appellant stated that respondent and the children had moved to Texas after the case had been taken under advisement on appeal to the district court. Appellant alleged that respondent's actions were an attempt to thwart her rights of reasonable visitation and that appellant was financially unable to move to Texas in order to visit the children. Appellant therefore requested that the district court either modify the award of custody or change her visitation rights. Respondent stated in his affidavit that he had moved to Texas to accept a more responsible teaching position of enhanced professional standing and that the move had not been made to deprive appellant of visitation privileges. Respondent further stated that prior to the move to Texas appellant had exercised only 49 percent of her visitation rights.
The district court affirmed the magistrate's property division but modified the award of custody, support, visitation rights and attorney fees. The district court found that the respondent's move to Texas was a material and permanent change of circumstances which required that appellant be awarded custody of the children during school summer vacation months and visitation rights during school Christmas vacation. The receiving parent was to pay transportation costs. Because of the change in circumstances requiring an award to appellant of summer custody of the children, respondent was also required to pay $100 per child during each month of appellant's custody as child support and to pay $750 of appellant's attorney fees.
This appeal is from the judgment of the district court. Appellant appeals from the judgment insofar as it affirmed the judgment of the magistrate; respondent cross appeals from the judgment modifying the magistrate's determination.
The scope of review on appeal to the district court from a decision of the magistrate is controlled by the provisions of I.R.C.P. 83(b) and (u). See I.C. § 1-2213(2). Although the district court elected to hear the matter as an appellate review, rather than a trial de novo, I.R.C.P. 83(u)(2) allows the district court to elect to hear additional evidence on some or all of the issues presented for review. In the present case, the district court heard, by way of affidavits, additional evidence after oral arguments concerning a change of circumstances affecting appellant's visitation rights. This presents the question whether, as a result of considering additional evidence, the district court's scope of review changed from an appellate review under I.R.C.P. 83(u)(1) to a trial de novo under I.R.C.P. 83(u)(2). Although the resolution of this issue is not explicitly stated in I.R.C.P. 83(u)(2), and is therefore a matter of first impression, we hold that where the district court chooses to handle an appeal as an appellate review and then elects to hear additional evidence on one or more issues, those issues affected by the additional evidence shall be treated as if involving a trial de novo. In other words, to the extent that the new evidence affects the decision of the magistrate, the district court shall act as a trial court. Where the additional evidence admitted by the district court does not affect the determination of the magistrate, the district court shall act as an appellate court.
On further appeal to this court from the determination of the district court where additional evidence is presented pursuant to I.R.C.P. 83(u)(2), the new matters affecting the magistrates determination will be scrutinized by this court according to the same standard of review as other appeals from the district court. However, where the district court's review of the magistrate's determination is not affected by the new matters presented to the district court, our review of the district court will be as though the district court was an intermediate appellate court.
Appellant assigns error to awarding custody of the children to respondent, challenging this determination of the magistrate's court as well as that of the district court. She claims that both courts abused their discretion in denying her continuous custody of the children. In custody disputes, the awarding of custody of minor children rests within the sound discretion of the trial court and will not be upset on appeal absent an abuse of discretion. McNett v. McNett, 95 Idaho 59, 501 P.2d 1059 (1972); Saviers v. Saviers, 92 Idaho 117, 438 P.2d 268 (1968); Bryant v. Bryant, 92 Idaho 76, 437 P.2d 29 (1968). An abuse of discretion occurs when the evidence is insufficient to support a finding that the welfare and interests of the children will be best served by changing custody of the children. Tomlinson v. Tomlinson, 93 Idaho 42, 454 P.2d 756 (1969); Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784 (1963). In the instant case the magistrate's court found that it would be detrimental to the welfare and best interests of the children to remove them from established patterns and relationships which they have been accustomed to in Idaho. Further, it found that, after comparing how each party would serve the welfare and best interests of the children, the evidence established that the children's best interest and welfare would be served by having custody remain with respondent father, at the time of the magistrate court's decree. While there is conflicting evidence, it is the conclusion of this court that those findings by the magistrate's court are fully sustained by the record. On appeal to the district court, that court made the same determination, stating "(t)he award of custody to the plaintiff father (respondent) was based on substantial evidence and the evidence does in fact support the findings made . . . (by the court) below." We find no abuse of discretion and no error on the part of the district court in affirming the award of custody of the children to respondent by the magistrate's court, as of the time of the magistrate court's decree.
While appellant claims the court erred in awarding custody of the children to the respondent, respondent cross-appeals claiming the district court erred in awarding appellant custody of the children for the three summer months, and in granting to her visitation rights during the...
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...districts only when reviewing those cases by way of appeal. See I.C. §§ 1-2213 and 16-1512; I.R.C.P. 83; See also Koester v. Koester, 99 Idaho 654, 586 P.2d 1370 (1978). Furthermore, a motion under I.R.C.P. 60(b) would be properly directed to the magistrate who entered the order of adoption......
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