McGriff v. McGriff

• Decision Date: 21 September 2004
• Docket Number: No. 28910.,28910.
• Citation: 99 P.3d 111,140 Idaho 642
• Court: Idaho Supreme Court
• Parties: Shawn L. McGRIFF, Plaintiff-Respondent, v. Theron W. McGRIFF, Defendant-Appellant.

99 P.3d 111

140 Idaho 642

Shawn L. McGRIFF, Plaintiff-Respondent, v. Theron W. McGRIFF, Defendant-Appellant.

No. 28910.

Supreme Court of Idaho, Boise, May 2004 Term.

September 21, 2004.

Racine, Olson, Nye, Budge & Bailey, Chtd., Pocatello, for appellant. Richard A. Hearn argued.

Holden Kidwell Hahn & Crapo, PLLC, Idaho Falls, for respondent. Marie T. Tyler argued.

TROUT, Justice.

Theron McGriff ("Theron" or "Father") appeals the magistrate judge's order granting Shawn McGriff's ("Shawn" or "Mother") motion to modify custody of their two children and denying his motion for the same. Theron alleges that the magistrate lacked jurisdiction to modify custody when he had already dismissed Shawn's petition, that the court erred when it found substantial and material changes in circumstances meriting a change in the custody arrangement, and that the court erred in basing its order modifying custody on Theron's sexual orientation. Theron also appeals the magistrate's subsequent decision granting Shawn attorney fees on appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

Theron and Shawn were divorced in February 1997, after approximately seven years of marriage. Two daughters were born as the issue of the marriage and the divorce decree provided that both parents would share legal and physical custody of children, one now thirteen and the other now nine. This decree incorporated the stipulation that a parenting plan would direct that the children reside with Shawn from Sunday evenings through Wednesday mornings and with Theron from Wednesday evenings through Sunday mornings, with the parents alternating holidays.

In December 2000, Shawn filed a petition to modify the decree of divorce, alleging that substantial and material changes had occurred in the circumstances of the parties since the entry of the decree and that the modification was in the best interests of the children. Specifically, Shawn alleged that "... events have occurred with respect to [Theron's] intimate relationship with a person of the same sex which have completely changed the circumstances, such that it is no longer in the best interests of the girls that they spend one-half of the overnights each week with [Theron]." Shawn alleged as further substantial and material changes that Theron "has failed to deal with his homosexuality in a responsible and emotionally stable manner, [which] requires the parenting plan to be modified ...," and that the children's young age and unfamiliarity with homosexuality also supported a modification. As part of her petition Shawn requested primary physical custody, granting Theron reasonable visitation consisting of alternating weekends and holidays. Shawn also requested that Theron "be required to seek professional assistance in dealing with his homosexuality and the manner in which his homosexuality is explained to the minor children."

In June 2001, the magistrate judge appointed Dr. Mark Corgiat to conduct a parenting evaluation of Theron and Shawn. Dr. Corgiat found that both Theron and Shawn were "good parents who have cared well for the children" and that the children did not want any change in the custody arrangements. Additionally, he found that both parents have "been involved in inappropriate expressions of anger toward one another in front of the children," and that they both have "tendencies towards violation of appropriate parental boundaries in expressing their difficulties with one another." Dr. Corgiat recommended that the custody arrangement remain unchanged but, because he found Shawn's concerns regarding how Theron addressed his sexual orientation to be valid, he recommended that the two parties obtain the help of a professional "who can assist them in presenting this information collaboratively to their children." He also recommended counseling for both parents regarding appropriate parent-child boundaries, finding that "[t]he parental alienation that has evolved through mismanagement of their anger towards one another has already affected the children. Any continuation of this will again be to the children's detriment."

In September 2001, Theron filed his own petition to modify custody, denominated as a "Counterclaim to Modify Decree of Divorce." As grounds he alleged that he "has attempted to work with [Shawn] regarding health care, educational support (the acquisition of school supplies) and other matters with [Shawn] but [she] refuses to discuss these matters with [him] all to the detriment of the minor children of the parties." In his petition, Theron requested that Shawn pay him child support and that she be awarded visitation on alternating weekends and holidays and extended periods over the summer.

Pursuant to Dr. Corgiat's recommendations, the magistrate judge entered an Order for Counseling on October 24, 2001. In this, the court ordered: "[T]he pending Petitions filed by both parties shall be and hereby are dismissed." Theron and Shawn were ordered to attend counseling with Dr. Howard Harper, upon whom both parties had agreed as a counselor. The magistrate subsequently found that Theron then ignored repeated requests by Shawn through her attorney to begin the counseling, and when they finally agreed to begin counseling, Theron insisted on counseling sessions separate from Shawn. Further, the court found that during his first session, Theron presented a "list of demands," which he insisted must be addressed before any further communication could be considered, which demands were unrelated to Dr. Corgiat's recommendations. The magistrate judge then found that Theron took his daughters to a separate counselor, Sue Heng, without notice to or the agreement of Shawn. After doing so, Theron revealed his sexual orientation to the older daughter, again without notice to Shawn and without her being present, despite her repeated requests to be present when this happened.

On January 16, 2002, the court entered a Notice of Status Conference setting a conference for January 30, 2002. Though no record was made of this conference, at which Judge Riddoch and counsel for both parties were present, the court reinstated both Shawn's petition and Theron's counterpetition, apparently with the agreement of both counsel. At the end of this conference the court entered a pre-trial order setting trial and other dates.

After a trial, at which witnesses for both sides testified and the issues were briefed by counsel, the magistrate judge entered his order, granting Shawn's motion to modify custody and denying Theron's motion. In that order, the court awarded legal and physical custody of the children to Shawn and ordered Theron to pay child support to Shawn in the amount of $842.00 per month. The magistrate judge allowed Theron reasonable visitation, defined as "alternate weekends and holidays and six weeks during the Summer, provided Father is not residing in the same house with his male partner and in accordance with Mother's proposal in paragraph 3 on pages 1 and 2 of her Exhibit A to her closing argument [setting forth the visitation times and dates in more detail]." The court also denied any award of attorney fees, finding that neither party presented frivolous arguments and each had the ability to pay their own fees and costs.

Thereafter, Theron filed a notice of appeal pursuant to I.A.R. 12, seeking a permissive expedited appeal from the magistrate judge directly to this Court, which was granted.

Shawn then filed a motion for attorney fees on appeal, claiming that due to disparate financial circumstances between her and Theron, she was unable to pay her own attorney fees. After a hearing, the magistrate judge ordered Theron to assist in paying Shawn's attorney fees on appeal through a one-time payment of $750.00 and followed by $500.00 per month thereafter. Theron then amended his notice of appeal to include the issue of whether the magistrate was correct in granting Shawn attorney fees on appeal.

II. STANDARD OF REVIEW

Decisions regarding child custody are committed to the sound discretion of the magistrate, and the magistrate's decision may be overturned on appeal only for an abuse of discretion. Biggers v. Biggers, 103 Idaho 550, 555, 650 P.2d 692, 697 (1982); Moye v. Moye, 102 Idaho 170, 171, 627 P.2d 799, 800 (1981). An abuse of discretion occurs when the evidence is insufficient to support a magistrate's conclusion that the interests and welfare of the children would be best served by a particular custody award or modification. Appellate courts, however, are not permitted to substitute their own view of the evidence for that of the trial court, nor to make credibility determinations. Brammer v. Brammer, 93 Idaho 671, 674, 471 P.2d 58, 61 (1970). Moreover, in considering findings of fact made by the trial court, the reviewing court must review the evidence in the light most favorable to the party who prevailed at trial....

Pieper v. Pieper, 125 Idaho 667, 669, 873 P.2d 921, 923 (Ct.App.1994).

III. THE JURISDICTION OF THE MAGISTRATE

The first issue Theron raises on appeal is the jurisdiction of the magistrate to hear the petitions for modification of custody, because the trial court dismissed both petitions in its October 24, 2001, Order for Counseling. Theron maintains that because the trial court dismissed both petitions in that Order, it was without jurisdiction to reinstate them and Shawn was required to refile a petition to modify custody in order for the magistrate to have jurisdiction to consider it. Clearly, the magistrate judge had personal jurisdiction over both parties to this action, so the only issue relates to subject matter jurisdiction. We do not agree with Theron's analysis of the magistrate's authority to act.

The Order for Counseling issued by the magistrate judge was the result of a stipulation by both parties agreeing to the dismissal of their petitions and to attend counseling with Dr. Harper, in an effort to resolve the issues between them. As the record...