Osteraas v. Osteraas
| Decision Date | 01 September 1993 |
| Docket Number | No. 19615,19615 |
| Citation | 859 P.2d 948,124 Idaho 350 |
| Parties | , 62 USLW 2215 Melinda E. OSTERAAS, n/k/a Melinda E. Havner, Plaintiff-Respondent, v. Edwin L. OSTERAAS, Defendant-Appellant. Eastern Idaho, September 1992 Term |
| Court | Idaho Supreme Court |
Dunn & Clark, P.A., Rigby, for appellant, Robin D. Dunn, argued.
Swafford Law Office, Chtd., Idaho Falls, for respondent, Ronald L. Swafford, argued.
This case requires us to examine to what extent religion may be taken into account as a factor in determining child custody disputes. Because the trial court improperly considered religion as a factor in modifying custody, we remand the cause to the trial court for reconsideration.
In October 1986, plaintiff-respondent Melinda Havner (formerly Osteraas) and defendant-appellant Edwin Osteraas were divorced. The dissolution decree granted joint legal custody with physical custody of their twin sons, Justin and Austin, to Melinda, their mother, who had been their primary caretaker since birth.
On March 2, 1990, Edwin, the father, moved for a change of physical custody, apparently in response to the mother's assertion that she intended to marry Jerry "Tex" Havner and move to Bremerton, Washington. On July 20, 1990, the magistrate court (trial court) modified the custody order, granting physical custody of the children to the father for nine months of the year, with the mother receiving physical custody for the three summer months. The trial court arrived at this disposition by concluding that the mother's move constituted a substantial change in circumstances and that, although the parents were equal in almost all respects, the father would provide more stability and superior moral training. 1 The trial court arrived at the latter conclusion by examining what it called "the religion factor."
The mother appealed the ruling to the district court, which reversed the trial court by order dated October 15, 1991; the district court found that substantial and material changes of circumstance did not exist and ruled that the trial court had improperly considered religion in determining custody. The district court granted the father's motion to stay the transfer of custody to the mother until May 28, 1992, the day the children completed second grade. 2 The father then appealed to this Court from the district court's order reversing the trial court's decision, raising the following issues:
I. Whether the father made a sufficient showing of substantial change of circumstances justifying a modification of custody of the children; and
II. Whether the trial court properly considered religion in granting a change of custody.
In reviewing a trial court's opinion, we give due consideration to the district court but directly review the trial court's opinion independently of the district court's decision. Robinson v. Joint School Dist. No. 331, 105 Idaho 487, 490, 670 P.2d 894, 897 (1983); Milliron v. Milliron, 116 Idaho 253, 255, 775 P.2d 145, 147 (Ct.App.1989).
The determination of the custody of minor children is commended to the sound discretion of the trial court; unless such discretion is abused, the court's judgment as to custody will not be upset on appeal. Levin v. Levin, 122 Idaho 583, 586, 836 P.2d 529, 532 (1992). The standard being that of one of judicial discretion not abused, we review a custody decision by asking whether the trial court: 1) correctly perceived the issue as one of discretion; 2) acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and 3) reached its decision by an exercise of reason. See Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991).
The first issue is whether the trial court's finding of a substantial change of circumstances was supported by substantial competent evidence. We hold that it was.
Once a custody order is entered, the party seeking to modify it must first demonstrate that a material, substantial change of circumstances has occurred since the original custody order. See, e.g., Levin v. Levin, 122 Idaho at 586, 836 P.2d at 532. After answering this threshold question in the affirmative, the paramount concern is the best interest of the child, as determined pursuant to I.C. § 32-717. Id.
We disagree with the district court's conclusion that the father failed to make a sufficient showing of a substantial change of circumstances. The mother, the primary physical custodian of the children, intended to move to the state of Washington and to take the children with her. Such a move would obviously render it impossible for the father to continue seeing the children two weekends a month and every Wednesday night, per his decreed visitation rights, thus requiring the court to modify the divorce decree appropriately.
We thus hold that a geographical relocation of minor children, such that the custody decree cannot be followed as previously entered, constitutes a substantial change of circumstances sufficient for the party seeking modification to be granted a hearing. We do not hold that such move necessitates that physical custody be transferred, only that such a move illustrates the likelihood that there is a need for considering some sort of modification which reflects the new circumstances. The party moving for modification still bears the burden of demonstrating that the best interests of the child or children will be served by modification.
Next, we inquire whether the trial court's utilization of the "religion factor" was inconsistent with the legal standards applicable to the available specific choices, thereby amounting to an abuse of discretion.
The trial court examined the relevant factors as set forth by I.C. § 32-717, including the mental and physical health and integrity of all individuals involved. See I.C. § 32-717(5). The court included in that grouping what it styled "the religion factor." Because the content of the trial court's conclusions as to this factor are of paramount concern in reaching a just and proper resolution, it is appropriate to display the entirety of his discourse on that subject:
The court received evidence regarding the religious preferences and activity, or lack thereof, of the parties. As a preamble to this portion of the decision, the court notes that it is aware of the case of Compton v. Gilmore, 98 Idaho 190, 560 P.2d 861 (1977). The Compton case provides the rule that courts generally should maintain an attitude of strict impartiality between religions and should not disqualify any applicant for child custody or visitation rights from taking children to a particular church, except where there is a clear and affirmative showing that the conflicting religious beliefs affect the general welfare of the children. However, the court feels the Compton case is inapplicable for the following reasons:
(1) In this case there is no dispute between the religious preferences of the plaintiff and defendant because the plaintiff [mother] is currently completely inactive in any religion. Furthermore, the plaintiff has been religiously inactive for a very protracted time period extending backwards in time past the time of her marriage to the defendant.
(2) The court utilizes the evidence regarding religion only as a factor relevant to weighing and balancing the options available for the custody of the twins and determining what is in the best interest of the said children.
As stated above, the plaintiff currently is and has been inactive in any religion for a significant time period. Although her religious affiliation is Catholic, she testified that she plans on activating in Tex's religion, which is the Church of Christ. However the plaintiff testified that she would not do this until they moved to Bremerton. Ironically, Tex has not been active in his religion since he moved to Idaho in approximately July of 1989. Thusly, the court specifically rejects the plaintiff's proposition that she will reactivate in any religion in the near future.
Not surprisingly, the plaintiff testified that she has not and does not provide the twins with any type of religious training or opportunities, either by activities or learning in her home or by taking them to a religious institution.
Tangentially related to the religious training of the twins is the learning that they receive in their home from their parent(s), by precept of example, regarding other important principles of life that prepare them to be normal, productive and successful adult members of our society. The court is referring to such principles as responsibility, courtesy, selflessness, honesty, punctuality, industry, dependability, morality, self-reliance and independence, patience, etc. Although the plaintiff testified that she takes time with the boys to teach them good character traits, the court is persuaded that her sincerity, desire, ability and effort in this area are only a small fraction of that exercised by the defendant. Considering the totality of the evidence regarding both parties, the court specifically finds that although the boys may learn these traits from the plaintiff, the said children will learn them from the defendant. Additionally, the court finds that the quality and quantity of such training will be much greater in the defendant's home than the plaintiff's home, and that through living with the defendant the boys will eventually be much better citizens and more normal, productive and successful adults.
Corrected Order in Re: Contempt [and] Modification of Decree, Clerk Tr. 136-138 (emphasis in original and added).
We cannot agree with the trial court's view that Compton v. Gilmore, 98 Idaho 190, 560 P.2d 861 (1977), does not apply in the instant case. The trial court's attempt to distinguish Compton on the basis that the court was not comparing different religions but merely...
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