Levin v. Levin

• Decision Date: 10 July 1992
• Docket Number: No. 19285,19285
• Parties: Verna LEVIN, aka Verna Rae Harrah, Petitioner-Appellant, v. Donald LEVIN, Respondent. Boise, April 1992 Term
• Court: Idaho Supreme Court

Page 529

836 P.2d 529

122 Idaho 583

Verna LEVIN, aka Verna Rae Harrah, Petitioner-Appellant, v. Donald LEVIN, Respondent.

No. 19285.

Supreme Court of Idaho,

Boise, April 1992 Term.

July 10, 1992.

Rehearing Denied Sept. 30, 1992.

Givens, Pursley, Webb & Huntley, Boise, for petitioner-appellant.

Trope & Trope, Los Angeles, Cal., Sorrell Trope argued; Cosho, Humphrey, Greener & Welsh, Boise, Stanley W. Welsh argued, for respondent.

BAKES, Chief Justice.

This is a child support and custody modification case. Verna Harrah Levin and Dr. Donald Levin were divorced in 1986 after five years of marriage. The divorce decree provided for the custody and support of the parties' minor daughter Samantha, and largely comported with a stipulation entered between the parties. Under the terms of the decree, the parties were awarded joint legal and physical custody, with Dr. Levin as primary physical custodian. Mrs. Harrah, who is the beneficiary of a trust which at the time of trial paid a large amount of income [in excess of $13,000,000] annually, was required to pay $1,000 a month in child support. Mrs. Harrah was also given visitation rights for two consecutive months every summer, for four consecutive days on alternating weekends while Samantha was with her father, and for a two-week period coinciding with Easter and the Christmas holidays.

From the time of the parties' separation until September of 1989, Mrs. Harrah primarily exercised her visitation in Sun Valley where she maintained a residence. Thereafter, she exercised her visitation in Los Angeles, dispatching her personal jet to transport Samantha to and from Dr. Levin's residence in Blaine County, Idaho.

In 1989, Mrs. Harrah sought a change of custody. She offered to pay Dr. Levin, a physician, $10,000 a month to offset his loss of income from his medical practice and estimated travel expenses for traveling to Los Angeles to visit Samantha if he would stipulate to a change in custody. When he declined the offer, Mrs. Harrah sought to modify the decree so that Samantha's primary residence and physical care would be with her. Dr. Levin opposed Mrs. Harrah's motion and moved to increase the amount of child support paid by Mrs. Harrah. After five days of testimony, the magistrate denied Mrs. Harrah's motion for a change in custody finding no permanent material change of circumstances warranted a change in physical custody. The magistrate granted Dr. Levin's motion to modify child support, increasing the award from $1,000 a month to $10,000 a month, and ordered the payments be paid retroactive from the date the motion to modify child support was filed. The magistrate also awarded Dr. Levin attorney fees and costs for having to defend Mrs. Harrah's motion to modify. After the district court affirmed the decision of the magistrate, Mrs. Harrah brought an appeal to this Court seeking review of the magistrate's order.

I. Custody Modification

Mrs. Harrah asserts that the court erred in denying her motion to change custody. It is well established that the determination of whether to modify child custody is left to the sound discretion of the trial court, and this Court will not attempt to substitute its judgment and discretion for that of the trial court except in cases where the record reflects a clear abuse of discretion. Biggers v. Biggers, 103 Idaho 550, 650 P.2d 692 (1982); Chislett v. Cox, 102 Idaho 295, 629 P.2d 691 (1981); Overman v. Overman, 102 Idaho 235, 629 P.2d 127 (1980). As we have noted on previous occasions, an abuse of discretion occurs where there is insufficient evidence to support the court's finding regarding the best interest of the child. Biggers v. Biggers, supra; Chislett v. Cox, supra. Also, an abuse of discretion can occur if the trial court misapplies the law or fails to reach its decision by an exercise of reason. Sun Valley Shopping Center v. Idaho Power, 119 Idaho 87, 803 P.2d 993 (1991). The party seeking modification clearly has the burden of justifying a change in custody, Biggers v. Biggers, supra, and although the threshold question is whether a permanent and substantial change in the circumstances has occurred, the paramount concern is the best interest of the child. Cope v. Cope, 98 Idaho 920, 576 P.2d 201 (1978); Poesey v. Bunney, 98 Idaho 258, 561 P.2d 400 (1977).

Mrs. Harrah asserts the trial court erred in determining no change in circumstances had occurred and that it was not in the best interest of Samantha to have the custody order modified. In support of her motion, Mrs. Harrah asserted the following: that due to her deteriorating health ¹ and the fact that Samantha had now entered grade school, thus precluding her from visiting her mother for four consecutive days on weekends, Mrs. Harrah would not be able to exercise visitation to the extent previously exercised; that Dr. Levin's bachelor lifestyle created instability; that Samantha's needs had changed during the five years since the original decree was entered, including an increased importance of having a same sex role model; that Samantha desired to reside with her mother; that Samantha would be better able to benefit from Mrs. Harrah's resources if she resided with her mother; and the advantages of cosmopolitan versus rural living.

Mrs. Harrah also contends the magistrate committed reversible error by discounting the expert testimony of Dr. Chase, a psychiatrist and divorce mediator with impressive credentials. However, it is well established in Idaho that the credibility of witnesses and the weight to be accorded the evidence is for the trier of fact. E.g., In the Case of Graham, 103 Idaho 824, 654 P.2d 1377 (1982). As we have previously noted:

When an action is tried to the court, without benefit of a jury, determinations as to the credibility of witnesses, the weight to be given their testimony, its probative effect and the inferences and conclusions to be drawn therefrom, are all matters within the province of the trial court.

Isaacson v. Obendorf, 99 Idaho 304, 308, 581 P.2d 350, 354 (1978). Furthermore, it is clear that a court is not bound by the testimony of experts. See, I.R.E. 702; I.R.C.P. 52(a); Simpson v. Johnson, 100 Idaho 357, 597 P.2d 600 (1979) (expert opinion not binding on trier of fact and, provided the trier of fact does not act arbitrarily, may be rejected even when uncontradicted); see also Milliron v. Milliron, 116 Idaho 253, 775 P.2d 145 (Ct.App.1989) (court may disregard recommendations of experts chosen by adversarial parties and order a different custody arrangement if that is within the best interest of the child).

After a review of the record, we are satisfied that the magistrate did not abuse its discretion in weighing the evidence and ultimately denying Mrs. Harrah's motion to modify custody. Although she did present some substantial evidence in support of her motion, Dr. Levin also produced substantial testimony in support of his retaining custody. The evidence overall was conflicting. Because the record demonstrates sufficient evidence to support the magistrate's findings, we hold that the magistrate did not abuse its discretion in denying Mrs. Harrah's motion to modify child custody. See Sun Valley Shopping Center, Inc. v. Idaho Power, 119 Idaho 87, 803 P.2d 993 (1991); Biggers v. Biggers, 103 Idaho 550, 650 P.2d 692 (1982); Chislett v. Cox, 102 Idaho 295, 629 P.2d 691 (1981).

II. Child Support

Mrs. Harrah asserts the trial court erred by granting Dr. Levin's motion to modify child support and increasing the award from $1,000 a month to $10,000 a month. As with a motion to modify child custody, the determination of whether to modify a child support award is left to the sound discretion of the trial court, and where that discretion has been properly exercised it will not be disturbed on appeal. Reid v. Reid, 121 Idaho 15, 822 P.2d 534 (1992); Sun Valley Shopping Center, Inc. v. Idaho Power, 119 Idaho 87, 803 P.2d 993 (1991); Yost v. Yost, 112 Idaho 677, 735 P.2d 988 (1987). Similarly, the party seeking modification of the support award has the burden of demonstrating a material, permanent and substantial change of circumstances. See I.C. § 32-709; Nomer v. Kossman, 100 Idaho 898, 606 P.2d 1002 (1980); McFarlin v. Crawford, 97 Idaho 458, 546 P.2d 855 (1976).

Mrs. Harrah contends the record does not support a finding of a material permanent and substantial change of circumstances justifying the increase in child support. Furthermore, she contends that the trial court erred when it concluded that the prior support order entered by a different magistrate in the original divorce action was "overly restrictive" and did not properly apply the 1980 amendments to I.C. § 32-706, relating to the standard of living the child enjoyed during the marriage.

The trial court's portrayal of the prior magistrate's support award as being overly restrictive and not giving adequate weight to the 1980 amendments to I.C. § 32-706, amounted to a collateral attack on the earlier court's judgment which had not been appealed. Dr. Levin did introduce evidence concerning a change of circumstances, such as the fact that he was building a much larger and more expensive house, and therefore the housing expenses would be increased by $5,000 a month for debt service; that there was an increase in expenses associated with a growing number of activities that Samantha was engaging in; and Samantha's increased awareness relating to the disparity between her parents' relative wealth and lifestyles. Nevertheless, because the magistrate's finding of a material, permanent and substantial change in circumstances was based partially upon its erroneous collateral attack upon the prior court's support order, we vacate that finding and direct the trial court to reconsider the issue of whether there was a material, permanent and substantial change of circumstances relating to child support. ²

Mrs. Harrah also asserts that the trial court abused its discretion...