Nelson v. Nelson

• Decision Date: 10 October 2007
• Docket Number: No. 32503.,32503.
• Citation: 170 P.3d 375,144 Idaho 710
• Parties: Kyle S. NELSON, Plaintiff-Appellant, v. Darline NELSON, nka Heath, Defendant-Respondent.
• Court: Idaho Supreme Court

170 P.3d 375

144 Idaho 710

Kyle S. NELSON, Plaintiff-Appellant, v. Darline NELSON, nka Heath, Defendant-Respondent.

No. 32503.

Supreme Court of Idaho, Boise, September 2007 Term.

October 10, 2007.

Kyle S. Nelson, pro se, Lewiston, for appellant.

John R. Hathaway, Orofino, for respondent.

TROUT, J., Senior Judge pro tem.

Kyle Nelson (Kyle) appeals from the magistrate judge's amended custody order granting custody of the parties' children to their mother, Darline Heath (Darline) and modifying the holiday visitation schedule.

I. FACTUAL AND PROCEDURAL BACKGROUND

Kyle and Darline married in 1994 and, thereafter, three children were born to the marriage. The parties separated in 1999, and their divorce became final in 2000. As a part of their divorce, the parties were awarded joint legal and physical custody of the minor children. Darline's home in Juliaetta, Idaho, was identified as the children's primary residence. Kyle, who lived in Lewiston, Idaho, received visitation rights.

Kyle filed a motion to modify the custody order in April, 2002, seeking custody of the three children. By stipulation of the parties, the trial court issued a modified custody order through which Darline retained primary residential custody of the children. Kyle filed a second motion to modify the custody order in December, 2002, and again sought custody of the children. After a trial was held in July of 2003, the magistrate judge issued an order on September 4, 2003, that the children would remain with Darline. At approximately this same time, in August, 2003, Darline made plans to marry Gordon Heath. As a result of her remarriage, Darline planned to move all three children to Greencreek, Idaho, to live with Heath and his two sons from a previous relationship.

In response to Darline's pending marriage and relocation of the children, Kyle moved to "alter or amend" the custody order on September 8, 2003. A hearing was set for September 30, 2003, at which the magistrate judge restyled Kyle's motion as a motion to modify based on a material change of circumstances. The magistrate judge then held an evidentiary hearing on the motion to modify on May 4 and 5, 2004. In a ruling from the bench and subsequent order dated October 12, 2004, "nunc pro tunc August 6, 2004" (the August Order), the magistrate judge again amended the custody arrangement but allowed Darline to retain primary residential custody. Kyle appealed from the August Order, and the district judge affirmed the custody award in its entirety. Kyle now appeals to this Court.

II. STANDARD OF REVIEW

On appeal from a district court's appellate decision, this Court reviews the magistrate judge's decision independently from, but with due regard for, the district court's decision. Antill v. Antill, 127 Idaho 954, 957, 908 P.2d 1261, 1264 (1996).

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. McGriff v. McGriff, 140 Idaho 642, 645, 99 P.3d 111, 114 (2004); Biggers v. Biggers, 103 Idaho 550, 650 P.2d 692 (1982). 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. 140 Idaho at 645, 99 P.3d at 114. Appellate courts, however, are not permitted to substitute their own view of the evidence for that of the trial court, or to make credibility determinations. Id.

When reviewing the trial court's findings of fact, the appellate court will not set aside the findings on appeal unless they are clearly erroneous such that they are not based upon substantial and competent evidence. Reed v. Reed, 137 Idaho 53, 56, 44 P.3d 1108, 1111 (2002); Hunt v. Hunt, 137 Idaho 18, 20, 43 P.3d 777, 779 (2002). If the findings of fact are based on substantial evidence, even if the evidence is conflicting, they will not be overturned on appeal. State v. Hart, 142 Idaho 721, 723, 132 P.3d 1249, 1251 (2006). When reviewing the trial court's conclusions of law, however, this Court exercises free review of the court's decision to determine whether the court correctly stated the applicable law, and whether the legal conclusions are sustained by the facts found. Hart, 142 Idaho at 723, 132 P.3d at 1251 (citing Roell v. Boise City, 134 Idaho 214, 216, 999 P.2d 251, 253 (2000)).

III. ANALYSIS

A. Procedural issues on appeal

Initially, it is necessary to address an argument made by Kyle in his appellate brief that the magistrate judge improperly recharacterized his motion to alter or amend as a motion to modify. After the July, 2003, hearing on his motion to modify, Kyle learned of Darline's intent to marry Heath and move to Greencreek. Four days after the magistrate judge entered an order that the children should remain with Darline, Kyle filed his motion to alter or amend under Idaho Rule of Civil Procedure 59, arguing that the trial court needed to correct factual issues in its order, based on Darline's alleged dishonesty in failing to disclose her marriage and relocation plans. Kyle does not properly assert this as an issue on appeal and, in any event, given the nature of the relief requested, the magistrate judge did not err in treating this as a motion to modify rather than a motion to alter or amend.

By redirecting Kyle toward a motion to modify, the magistrate judge focused on the alleged material change in circumstances in the children's lives brought about by Darline's actions, rather than the implications for the accuracy of Darline's prior testimony. In doing so, the court served the paramount goal of I.C. § 32-717: to determine custody based on "the best interests of the children." Moreover, the reformulation of the motion did not prevent the trial court from considering any evidence of Darline's alleged deception or change of plans as it related to the children's best interests under I.C. § 32-717.

Another matter which must be addressed is Darline's objection to certain documents which Kyle attempted to add to the record before this Court by attaching them to his appellate brief. Kyle appended to his opening brief: school report cards for the 2002-2003 school year; report cards dated January 2006; and Darline's notice of lease termination dated September 10, 2003. In addition, Kyle makes various factual statements in his briefing based on opinions and personal observations contemporary with his appeal. "Appellate court review is limited to the evidence, theories and arguments that were presented below." Obenchain v. McAlvain Const., Inc., 143 Idaho 56, 57, 137 P.3d 443, 444 (2006) (internal citations omitted). None of the documents Kyle attached to his brief appear in the record and indeed, two of the report cards are dated after the magistrate judge's order and the district court's order on appeal. Kyle's introduction of evidence before this Court by way of his briefing is improper and will be disregarded.

B. Orders being appealed

Kyle appeals three decisions, as identified in his opening brief: the September 4, 2003, order, the August Order, and the October 3, 2005, district court order. As noted above, this Court does not review the decision of the district court but rather reviews the magistrate judge's order directly. Antill, 127 Idaho at 957, 908 P.2d at 1264. Darline argues that Kyle's appeal of the magistrate judge's September 4, 2003, order is untimely, and his appeal is valid only as to the August Order.

Idaho Rule of Civil Procedure 83 governs the appeal of decisions rendered by the magistrate's division. I.R.C.P. 83(a). Under I.R.C.P. 83(e), an appeal to a district court of a magistrate judge's decision must be made within 42 days of the judgment, unless the appellant has made a timely motion to alter or amend the judgment. In this case, Kyle did make a motion to alter or amend the judgment, but the magistrate judge interpreted Kyle's purpose to be better served by a motion to modify based on changed circumstances, and Kyle did not appeal from that decision. By pursuing a modification of the custody arrangement based on a material change in circumstances, Kyle initiated a new hearing with new evidence, on which a new decision — the August Order— was based. Kyle's appeal of the magistrate judge's September 4, 2003, order is neither timely nor appropriate, given that the order was superseded by the August Order. Thus, this Court will review on appeal only the August Order, amending custody.

C. Motion to modify

Idaho Code § 32-717 gives a judge wide discretion regarding custody decisions, subject to some restrictions. Hart, 142 Idaho at 724, 132 P.3d at 1252 (citing Hoskinson v. Hoskinson, 139 Idaho 448, 455, 80 P.3d 1049, 1056 (2003)). In Idaho, the best interests of the children are always the paramount concern. Roberts v. Roberts, 138 Idaho 401, 405, 64 P.3d 327, 331 (2003). "Therefore," this Court explained in Roberts, "in any judicial determination regarding the custody of the children, including where they reside, the best interests of the child should be the standard and primary consideration." Id.

Idaho Code § 32-717 provides a framework for the trial court in determining the best interests of the children in making a custody decision. Brownson v. Allen, 134 Idaho 60, 63, 995 P.2d 830, 833 (2000). The statute sets forth relevant, non-exhaustive factors to aid in the trial court's custody determination. Id. The statute provides,

(1) 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 court shall consider all relevant factors which may include:

(a) The wishes of the child's parent or parents as to his or her custody;

(b) The wishes of the child as to his or her custodian;

(c) The interaction and...