Martinez v. Carrasco

• Decision Date: 20 June 2017
• Docket Number: Docket No. 44622-2016
• Citation: 396 P.3d 1218,162 Idaho 336
• Court: Idaho Supreme Court
• Parties: Carlos MARTINEZ (PORTILLO), Petitioner-Respondent, v. Evelia CARRASCO (MENDOZA), Respondent-Appellant, and State of Idaho, Department of Health and Welfare, Child Support Services Intervenor-Respondent.

162 Idaho 336

396 P.3d 1218

Carlos MARTINEZ (PORTILLO), Petitioner-Respondent,

v.Evelia CARRASCO (MENDOZA), Respondent-Appellant,andState of Idaho, Department of Health and Welfare, Child Support Services Intervenor-Respondent.

Docket No. 44622-2016

Supreme Court of Idaho, Boise, April 2017 Term.

Filed: June 20, 2017

Earl Blower, Swafford Law PC, Idaho Falls, argued for appellant.¹

Jared M. Harris, Baker & Harris, Blackfoot, argued for respondent.

EISMANN, Justice.

This is an appeal out of Bingham County from the modification of a judgment by default to require that the parents of a child rotate custody of their three-year-old child every three weeks, where the father is living in Blackfoot and the mother is living in Oceanside, California, a distance of 913 miles away. We hold that the magistrate court abused its discretion in ordering that custody rotation. In addition, the mother had moved to modify the judgment by default, but did not move to set aside the entry of default. We hold that the father waived the default by litigating the motion to modify.

I.Factual Background.

In June 2011, Carlos Martinez ("Father") and Evelia Carrasco ("Mother") met in Idaho Falls, and they lived together in Idaho until February 2013. When they separated, Mother was seven months pregnant. She moved to Salt Lake City to live with her sister and gave birth while there to a male child ("Child"). She then returned to Idaho, and in September 2013, she moved to California with Child and her older nine-year-old son from a prior relationship.

On July 25, 2013, the State of Idaho, Department of Health and Welfare ("Department"), filed an action in Bingham County against Father and Mother to establish filiation and child support. After Department established through DNA testing that Father was the father of Child, Father filed a cross-claim against Mother seeking, among other things, that the court enter a judgment providing: "That the parties share joint legal and joint physical custody of the minor child. The parties will have custody every other week alternating on Friday nights at 6:00 p.m."

On April 16, 2014, Father filed a separate action against Mother seeking, among other things, a judgment providing: "That the parties share joint legal and joint physical custody of the minor child. The parties will have custody every other week alternating on Friday nights at 6:00 p.m." On April 17, 2014, the magistrate court entered an order consolidating the case filed by Department into the case filed by Father.

The State was able to serve Mother in Pocatello on July 31, 2014. She contends that she had returned temporarily to assist her nieces in obtaining public assistance. She apparently applied for public assistance in Idaho while she was in Pocatello, which was probably how the State was able to locate and serve her. Father was unable to personally serve her, so he served her by publication in a Pocatello newspaper, which service was completed on September 20, 2014.² He obtained a default judgment on October 16, 2014, and an amended judgment on December 29, 2014.³ The amended judgment provided, "That the parties share legal custody and FATHER have sole physical custody of the minor child with MOTHER to have visitation as the parties can agree." It also provided that "MOTHER be ordered by the court to pay FATHER's attorney's fees and costs of $2,500.00," although there is no indication of the statutory basis for such award.

Mother had actual physical custody of Child until March 31, 2016. Father went to Oceanside, California, where Mother was living with Child and her older son. He found her at a Wal-Mart store and told her that his mother was there from Mexico and wanted to see Child. She agreed to that request. Mother's older son was in school, and she drove to his school to pick him up, with Child, Father, and Father's mother in the car. Mother agreed to permit Child to spend the night with Father, but asked that he also take her older son because he and Child were close. They agreed to meet at the Wal-Mart store the next day, which was March 31, 2016. When Mother arrived at the store, Father was not there. She called him, and he stated that he was taking Child and that he left Mother's older son outside her apartment. Father then brought Child to Idaho.

On April 14, 2016, Mother filed a motion pursuant to Idaho Rules of Family Law Procedure 306 and 809(4) to set aside the initial October 16, 2014, default judgement on the ground that it was void. At the conclusion of oral argument on the motion, the magistrate court stated that it would decide the motion based upon Idaho Rule of Civil Procedure 60(b)⁴ and that it could "find no mistake, inadvertence, or other grounds under Rule 60(b) to set the judgment aside under these circumstances." However, the court stated that it would permit Mother to make an oral motion to modify the existing judgment, to be followed by a written one.

After the magistrate court stated it would deny the motion to set aside the default judgment, it set an evidentiary hearing on the anticipated motion to modify and then told the parties that they needed to discuss a temporary custody arrangement for Child. The court made it clear that it was contemplating equal time for both parents. It stated as follows:

Let me just throw out a suggestion to you. What I anticipate doing is saying that Dad will keep the child until the month of April is over, and then Mom can take the child for the month of May. And then Dad will get the child back for the month of June. So we're just going to rotate it on that basis between on that.

Now, that is not the best custody arrangement for this child. I understand that. But under the circumstances and the limited amount of time, it's somewhat fair to the parents—probably not fair to your child, but it's fair to the parents.

Now, if you men want to discuss that with your clients, you can do that. If not, we'll launch into a hearing at 4:00 o'clock. And what I'll do is I'll take a little bit of testimony from each of these parties for a few minutes, and then I'll issue a decision.

Mother is not fluent in English and had to communicate through an interpreter. After a recess, the parties stipulated to change physical custody of Child every two weeks. Mother filed her petition to modify on April 26, 2016.

The evidentiary hearing was held on August 11, 2016. At that time, Child was three years of age and Mother's older son was nine years of age. After the trial, the court entered its findings of fact and conclusions of law and a judgment. The judgment required the parties to change physical custody of Child every three weeks, with the exchange of custody to occur at the McDonald's restaurant in Barstow, California off I-15 at exit 184, and it ordered that neither party would pay child support and that each party would provide health insurance for Child if it was available at a reasonable cost and would pay one-half of any uncovered medical expenses for Child.

Mother petitioned for a permissive appeal to this Court pursuant to Idaho Appellate Rule 12.1, which this Court granted. Mother then filed her notice of appeal.

II.Does this Court Have Jurisdiction to Hear the Appeal?

On October 16, 2014, Father obtained the entry of default against Mother and a default judgment. On April 14, 2016, Mother filed a motion pursuant to Idaho Rules of Family Law Procedure 306 and 809(4) to set aside the default judgment on the ground that it was void because the magistrate court lacked jurisdiction to enter the judgment. Father's cross-claim had been served by publication in a Pocatello newspaper in September 2014. Mother contended that she had been a resident of California from September 2013 to the present; that while she was temporarily in Idaho visiting her niece, she had asked for public assistance; that she did not know of this lawsuit or the judgment until March 31, 2016, after Father had taken Child;⁵ and that California was her son's home state for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act. The magistrate court denied her motion to set aside the default judgment, but stated that she could file a motion to modify the judgment. In so stating, the court erred.

"Courts distinguish a judgment by default from the mere entry of default....

An entry of default and an entry of default judgment are two separate events or steps." 46 Am. Jur. 2d Judgments § 233 (2006) (footnotes omitted). An entry of default does not constitute a judgment. Pierce v. McMullen , 156 Idaho 465, 469, 328 P.3d 445, 449 (2014). Rule 301 of the Idaho Rules of Family Law Procedure provides for the entry of default,⁶ and Rules 304 and 305 provide for entry of a default judgment.⁷ The corresponding Idaho Rules of Civil Procedure are essentially identical.⁸

Rule 306 of the Idaho Rules of Family Law procedure sets forth the procedure for setting aside a default and a default judgment. It states, "For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 809." Under that rule, a party's default may be set aside for good cause shown "and, if a judgment by default has been entered," the default judgment may likewise be set aside in accordance with Rule 809. Thus, the default must be set aside and then the judgment by default, although motions to set aside the default and to obtain relief from the default judgment can be made simultaneously. Setting aside the judgment by default does not set aside the default, because they are two separate actions.⁹

In this case, Mother never moved to set aside the entry of default. Her motion stated:

COMES NOW the Cross Respondent, Evelia Carrasco Carrasco, by and through her attorney of record, NATHAN D. RIVERA, and moves the Court, pursuant to the Rule 306 and Rule 809(4) of the Idaho Rules of Family Law Procedure, to set aside the default judgment which was entered in this matter on

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