Markwood v. Markwood

• Decision Date: 17 April 2012
• Docket Number: No. 39294.,39294.
• Citation: Markwood v. Markwood, 152 Idaho 756, 274 P.3d 1271 (Idaho App. 2012)
• Court: Idaho Court of Appeals
• Parties: Amber Rose MARKWOOD, Plaintiff–Respondent, v. Joshua Robert MARKWOOD, Defendant–Appellant.

152 Idaho 756

274 P.3d 1271

Amber Rose MARKWOOD, Plaintiff–Respondent,

v.Joshua Robert MARKWOOD, Defendant–Appellant.

No. 39294.

Court of Appeals of Idaho.

April 17, 2012.

Thomas J. Clark, Lewiston, for appellant.

Linda L. Blackwelder Pall, Moscow, for respondent.

LANSING, Judge.

Joshua Robert Markwood appeals from the district court's affirmance of a post-divorce custody order which allowed his ex-wife, Amber Markwood, to retain primary physical custody of their children after she moved from Moscow, Idaho to The Dalles, Oregon.

I.BACKGROUND

Joshua and Amber were divorced on September 25, 2009, after approximately six years of marriage.During the marriage, they had two daughters who were born in 2004 and 2005.The parties were awarded joint legal and physical custody of the children according to an agreed parenting plan that was attached to and incorporated into the divorce decree.Under the parenting plan, which was structured around the children's school schedule, the children were to reside with Amber during the week in Moscow, Idaho, and with Joshua on the weekends in Clarkston, Washington, which is about a forty-five-minute drive from Moscow.

At some point, Joshua began residing with his girlfriend in Clarkston, and Amber became engaged to marry a man¹ who resided in The Dalles, Oregon, which is a four to five-hour drive from Clarkston.In 2010, Amber took the children with her to The Dalles and resided there for a few months.She apparently attempted to adhere to the terms of the custody agreement by transporting the children to Clarkston to stay with Joshua and his girlfriend on the weekends.Joshua and Amber attempted to negotiate new arrangements for physical custody of the children with Amber residing in The Dalles, but they failed to reach an agreement.Joshua then filed a motion to modify the custody arrangement and Amber presented a counterproposal for modification.Joshua sought primary physical custody, and Amber sought to maintain primary physical custody after relocating to The Dalles.While awaiting trial, Amber apparently returned to Moscow temporarily to allow the children to attend the fall semester of school in accord with the existing parenting plan.

After a trial, the magistrate court ordered that Amber would retain primary physical custody while living in The Dalles.In consideration of the increased travel time necessary to transport the children between the parents' places of residence, the magistrate also reduced the frequency of the children's stays with Joshua, but increased their duration.Joshua appealed the magistrate court's decision to the district court, which affirmed.

Joshua now appeals to this Court.He asserts that the magistrate court misperceived the issue at trial, abused its discretion by allowing Amber to relocate to The Dalles, and abused its discretion by allowing her to retain primary physical custody after that relocation.

II.ANALYSIS

A.Standard of Review

Child custody determinations are committed to the sound discretion of the magistrate.Danti v. Danti,146 Idaho 929, 934, 204 P.3d 1140, 1145(2009);Bartosz v. Jones,146 Idaho 449, 453, 197 P.3d 310, 314(2008).Therefore, a magistrate's custody decision may be overturned on appeal only if it is an abuse of discretion.Roberts v. Roberts,138 Idaho 401, 403, 64 P.3d 327, 329(2003).A custody award will not be regarded as an abuse of discretion so long as the trial court: (1) recognized the issue as one of discretion; (2) acted within the outer limits of its discretion and consistently with the legal standards applicable to the available choices; and (3) reached its decision through an exercise of reason.Id.

B.The Magistrate Correctly Perceived the Issue at the Trial

Joshua asserts that the magistrate erred by viewing the salient issue to be whether it would be in the children's best interests to live with Amber in The Dalles or with Joshua in Clarkston.Instead, he contends, the magistrate court should have "weigh[ed] whether or not the mother's relocation was in the best interests of the children against the mother remaining in Idaho."That is, he contends that the correct choice for the magistrate court was whether Amber should be allowed to move to The Dalles or should be ordered to continue to reside in Moscow with the children despite her desire to marry a man who lived in The Dalles.Joshua's argument appears to be based on an assumption that the magistrate court could have required Amber to reside in Moscow because it was in the children's best interests for their parents to live in close proximity.

Joshua's argument misperceives Idaho law and the scope of a magistrate court's authority in child custody litigation.In Allbright v. Allbright,147 Idaho 752, 215 P.3d 472(2009), the Idaho Supreme Court made it very clear that in custody cases, an Idaho court may not dictate where a parent will live.Rather, the court may only issue orders for the custody and care of children in view of the location or relocation of the parents places of residence.In Allbright, a magistrate court had ordered that a divorced mother not move out of state, even if she did not take the minor child who was the subject of a custody dispute, because the court found that the mother's move would be adverse to the best interests of the child.On appeal, the Supreme Court defined the issue presented as "whether the magistrate court had authority to order that Mother live within a specific geographical location so that both parents could continue having frequent contact with and physical custody of their child."Id. at 754, 215 P.3d at 474.The Supreme Court held that the magistrate court possessed no such authority and consequently reversed the magistrate court's order.The Court explained:

A court's authority in a divorce action is not conterminous with what the court determines to be the best interests of the child.Idaho Code § 32–717(1) provides, "In an action for divorce the court may, before and after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper in the best interests of the children."The statute authorizes the court to give direction for the custody, care, and education of the child.It does not authorize a court to decide the geographic area in which the parent or parents of the child shall live.

....

[The court] can determine with which parent the child will reside, but it cannot determine where either parent will reside.

....

A court presiding over a child custody matter does not become a family czar with unlimited authority to order the parents to do anything that the court believes is in the best interests of the child....

There is no doubt that it would be in the best interests of [the child] for her parents to live in close enough proximity that they can both have frequent and continuing contact with and physical custody of her."Idaho favors the active participation of both parents in raising children after divorce, which policy is reflected in I.C. § 32–717B supporting joint custody."Roberts v. Roberts,138 Idaho 401, 405, 64 P.3d 327, 331(2003).However, the magistrate court had no authority to order Mother to reside in any particular geographical location.

Allbright,147 Idaho at 754–56, 215 P.3d at 474–76.²

Although Joshua cites the Allbright decision in his appellate brief, his argument ignores its holding.The magistrate court here had no authority to order Amber to continue to reside in Moscow, even if that would have been in the children's best interests.The magistrate court correctly recognized the limitations of its authority when it stated:

The ideal situation ... was maybe [Amber] staying in Moscow.[The children] were very well-adjusted here.They love Moscow.They love their friends here.That's not the case that I get to decide.I have a very different case.That's not—that's not the case I—that's not the choice I get to make.

The magistrate court correctly perceived that it did not have the authority to compel Amber to remain in Moscow and that the issue it must decide was whether it was in the best interests of the children to live primarily with Amber in The Dalles, or with Joshua in Clarkston.Joshua has shown no error in this regard.

C.The Magistrate's Decision to Award Primary Residential Custody to Amber Was Not an Abuse of Discretion

Joshua next asserts that the magistrate court erred by allowing Amber to retain primary physical custody of the children, both because the magistrate overemphasized the need to promote continuity and stability in the lives of the children and because the magistrate's custody order was not supported by substantial and competent evidence.

Idaho Code § 32–717(1) provides that a "court may, before and after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper in the best interests of the children."Thus, the children's best interests are of paramount importance when making decisions regarding the children's custody, including decisions relating to where the children will reside.Danti,146 Idaho at 934–35, 204 P.3d at 1145–46;Roberts,138 Idaho at 404–05, 64 P.3d at 330–31.In determining the children's best interests, courts are required to consider all relevant factors.Roberts,138 Idaho at 404–05, 64 P.3d at 330–31.Idaho Code § 32–717(1)(a)–(g) identifies some of those factors which may be relevant as including the parents' wishes for the children's custody; the children's wishes; the interrelationship and interaction between the children and their parents and siblings; the extent the children have adjusted to their school, home, and community; the character and circumstances of the persons involved; the need to promote continuity and stability in the children's lives; and domestic violence.Additional factors not enumerated in Section 32–717 may be especially relevant when deciding whether to permit a...