Michalk v. Michalk

• Decision Date: 20 November 2009
• Docket Number: No. 35221.,35221.
• Citation: 220 P.3d 580
• Parties: Arthur William MICHALK, Plaintiff/Respondent v. Wendi Lee MICHALK, Defendant/Appellant.
• Court: Idaho Supreme Court

220 P.3d 580

Arthur William MICHALK, Plaintiff/Respondent v. Wendi Lee MICHALK, Defendant/Appellant.

No. 35221.

Supreme Court of Idaho, Boise, August, 2009 Term.

October 20, 2009.

Rehearing Denied November 20, 2009.

COPYRIGHT MATERIAL OMITTED

Wendi Lee Michalk, pro se for appellant.

Audrey Numbers, Boise, for respondent.

W. JONES, Justice.

NATURE OF CASE

Pro se Appellant Wendi Michalk (Wendi) appeals directly to the Supreme Court, a divorce decree entered by Magistrate Judge Terry R. McDaniel, dissolving her marriage to Respondent Arthur William Michalk (Art), dividing the community assets and debts, and granting Wendi and Art joint legal and physical custody of their minor child. Wendi essentially argues that she was not afforded a fair trial. Additionally, Wendi argues that Art's prior conviction for two counts of lewd and lascivious conduct with a minor should have precluded the magistrate court from granting the parties joint legal and physical custody of their child.

FACTS AND PROCEDURAL BACKGROUND

Art states that he and Wendi were married on July 17, 1998, but Wendi states that they were married on July 16, 1999. Although Art and Wendi disagree on the date of the wedding, their disagreement is immaterial to the case. They had one child, C.A.M., born on August 26, 1999.

In early 1998, Art was convicted of two counts of lewd and lascivious conduct with a minor, stemming from incidents¹ with his twelve year old daughter from a previous relationship and his daughter's friend. Art was sentenced to seven years in prison, with the court retaining 180 days jurisdiction to review whether or not to place Art on probation. After completing a rider in Cottonwood, Idaho, Art was released from custody and placed on probation for seven years. As a condition of his probation, Art was required to participate in Alcoholics Anonymous meetings and complete recommendations by SANE Solutions (SANE), a community based program that provides treatment to sexual abuse offenders².

Art met Wendi after his conviction and during his probation at an Alcoholics Anonymous meeting in 1998. In July of 1999, Wendi signed an agreement to act as Art's supervisor in the SANE program. As his supervisor, Wendi was aware of Art's conviction and the nature of his crime. In June of 2000, Art's SANE contract was amended to allow him to have unsupervised contact with C.A.M.; it was signed by Art's SANE counselor, his probation officer, and Wendi. Art testified that if Wendi had not signed the addendum, Art would not have been permitted to have unsupervised contact with C.A.M. Pursuant to the addendum, at various times Art has had unsupervised contact with C.A.M. since June of 2000. With knowledge of Art's prior conviction, Wendi allowed Art unsupervised visits with C.A.M.

Art testified that sometime in 2003 Wendi was experiencing mental problems and voluntarily committed herself to the Franklin House for mental health treatment for 14 days. He further testified that Wendi did not inform him that she admitted herself to the Franklin House; Art found out only after Wendi's landlord let Art into her trailer and he found a note she wrote stating that she went to the Franklin House and left C.A.M. in the care of a friend. Art took over caring for his son full-time for the remaining 12 days that Wendi was at the Franklin House.

The parties separated in September of 2003 and Wendi moved to Oregon with C.A.M. to be closer to Wendi's family. She then returned to Idaho with C.A.M. in June of 2005 and resumed living with Art.

From June of 2005 through February of 2007, the parties lived together in the same household and jointly cared for C.A.M. During this time, Wendi attended school and worked part-time at the American Red Cross. Art was the childcare provider when Wendi was at school or work.

The parties split for the final time in February of 2007 and they agreed that Art could have unsupervised visitation with C.A.M. every other weekend, including overnight visits, and every Wednesday afternoon. Art filed for divorce on April 12, 2007, alleging irreconcilable differences and requesting a visitation schedule with C.A.M. Wendi filed an answer and counterclaim on May 21, 2007, with the help of appointed Legal Aid attorney Roderick D. Gere (Gere). Therein, Wendi confirmed Art's request for joint legal custody of C.A.M., setting out a visitation schedule that allowed Art to visit C.A.M. every other weekend, with no overnight visitation until Art obtained a separate bed for C.A.M. Wendi also set out limitations that Art was not permitted to sleep or bathe with C.A.M. and was required to provide age-appropriate entertainment for him.

On August 12, 2007, Wendi unilaterally stopped allowing Art to visit C.A.M. Art testified that until this date, with knowledge of Art's prior conviction, Wendi had never expressed concern about Art taking care of C.A.M.; Art has not seen his son since that date.

On September 6, 2007, Gere filed a motion to withdraw as counsel, alleging that Wendi's conduct had caused a breakdown in their attorney/client relationship. On the day set for Wendi's attorney's motion to withdraw, September 25, 2007, Wendi waived her attorney/client privilege by demanding that her attorney explain to the court on the record why he wanted to withdraw. Gere explained that Wendi would not follow his advice regarding the custody issues, nor did she follow his instructions that she not file documents with the court without his knowledge. The court granted Gere's motion to withdraw and informed Wendi that she had twenty days in which to file a written statement with the court specifying whether she was going to proceed in the case pro se or through another attorney. Once Gere withdrew, and throughout the remainder of the trial, Magistrate Judge McDaniel took steps to ensure that Wendi's rights were protected, informing her of necessary steps in order to comply with procedural rules. The court informed Wendi that if she did not comply with the requirements set forth in the order of withdrawal that a default could be entered against her in the case. In violation of I.R.C.P. 11(b)(3), Wendi did not file the written notice within the twenty day period required by the court. On October 18, 2007, Wendi filed a so-called "Notice to the Court," wherein she complained the court had violated her constitutional rights by not appointing another counsel to represent her after Gere withdrew.

On October 22, 2007, Art's attorney, Audrey Numbers (Numbers) filed a three-day notice of intent to take default because of Wendi's failure to follow I.R.C.P. 11(b)(3), and Numbers certified that Wendi was sent a copy of such notice. On October 31, 2007, the court entered a default; however, the court did not enter a default judgment against Wendi. On November 13, 2007, Wendi filed an appeal of that decision to this Court; the appeal was dismissed because there was no final appealable order. On November 17, 2007, the day of the pre-trial conference, Wendi filed a motion to reconsider default; the court granted the motion and set aside the default. At this pre-trial conference the court informed the parties that they were bound by the pleadings as they existed at that time. The court informed Wendi that in order to change the pleadings she would have to request an amendment under the rules.

On December 24, 2007, Wendi attempted to file an "Amended Counter Complaint," but she did not follow the Idaho Rules of Civil Procedure by requesting leave of the court to file an amended counterclaim, nor did she send copies of the pleadings to Art's attorney. Because the rules were not followed, the court declined to consider the Amended Counter Complaint.

The day before trial, on January 2, 2008, Wendi filed a motion to vacate the trial and to extend discovery. She also filed a motion to issue subpoenas in support of the so-called "Counter Complaint." Wendi did not send or hand-deliver copies of any of these pleadings to Art's attorney. On the day of trial, January 3, 2008, the court addressed the motions filed by Wendi; Numbers objected because Wendi did not give notice of any of the motions. The court denied Wendi's motions, finding that Wendi's failure to do any discovery in the three months between the date that Gere withdrew and when the trial commenced was inexcusable; the court also found that Art would be extremely prejudiced if trial were delayed because Wendi had unilaterally denied him any visitation with C.A.M. since August of 2007.

At the beginning of trial, Numbers attempted to stipulate to how the property would be divided. Wendi refused to respond to the request and remained silent throughout the remainder of the trial proceedings, including but not limited to requests by the court for her opening and closing statements, objections to exhibits, cross-examinations of any witnesses, or the presentation of any testimony or exhibits on her own behalf during the trial.

During trial, Art testified that he had a decent home where C.A.M. would stay during visits, his extended family has a strong relationship with C.A.M., he spent a lot of time caring for C.A.M. without Wendi's help over the years, and Wendi never expressed any concern about Art being alone with C.A.M. until she unilaterally denied him visitation with his son. Additionally, Art testified that he never did anything intentionally to harm C.A.M. The only times C.A.M. was harmed in Art's care were accidents, including an incident when C.A.M. was wrestling with Art and cut his lip and a time when Art needed help getting off the couch and unintentionally hurt C.A.M.'s shoulder.

After the trial concluded, the magistrate court took the case under advisement and issued Findings of Fact and Conclusions of Law. The court then entered a Judgment and Decree of Divorce. Therein, the court dissolved the parties' marriage and granted them joint legal and physical custody of C.A.M., with Wendi having primary...