Poesy v. Bunney

• Decision Date: 17 March 1977
• Docket Number: 12354,Nos. 12036,s. 12036
• Citation: Poesy v. Bunney, 98 Idaho 258, 561 P.2d 400 (Idaho 1977)
• Parties: Joan Marie Bunney POESY, Plaintiff-Respondent, v. Glenn Paul BUNNEY, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 400

561 P.2d 400

98 Idaho 258

Joan Marie Bunney POESY, Plaintiff-Respondent, v. Glenn Paul BUNNEY, Defendant-Appellant.

Nos. 12036, 12354.

Supreme Court of Idaho.

March 17, 1977.

Darrel W. Aherin, Lewiston, for defendant-appellant.

Allen V. Bowles, Moscow, for plaintiff-respondent.

McFADDEN, Chief Justice.

Respondent Joan Marie (Bunney) Poesy was granted a divorce from appellant Glenn Paul Bunney on October 19, 1972. In the decree, Poesy was awarded custody of the four children of the marriage, and Bunney was granted rights of visitation. On April 29, 1974, Bunney sought to modify the decree and obtain custody of the children. That motion was denied on the grounds that there had been no substantial change in circumstances and was not in the best interest of the children. On February 24, 1975, Bunney commenced the present effort to modify the decree. The magistrate court awarded Bunney custody of the two eldest children. Respondent Poesy appealed to the district court. The district court reviewed the record of the magistrate court proceedings and then ordered a trial de novo, sua sponte. That court reversed the magistrate court's decision. Bunney then perfected an appeal of the district court's order in Case No. 12036. During the pendency of that appeal, Poesy sought and was awarded attorney's fees to meet the costs of the appeal. In Case No. 12354, Bunney appeals from the award of attorney's fees.

The two appeals were consolidated by order of this court. The court will first consider the appeal from the district court's reversal of the custody modification, and will secondly address the appeal from the award of attorney's fees.

I. CASE NO. 12036: CHILD CUSTODY

The two oldest children, Larry and Bonnie, testified that they would prefer to live with their father. At the time of the hearing before the district court on appeal in July, 1975, Larry was age fourteen and Bonnie was age fifteen. The magistrate court, in previously granting the custody modification, had articulated a belief that the children were old enough to have some say in their living situation, and thus attempted to accommodate their desires. On appeal from the magistrate court, the district court refused to honor that choice, and awarded continued custody to the mother. Appellant contends that the children's desires should be controlling.

The son, Larry, is the second child of the marriage. He testified that he clearly preferred to live with his father. (Bunney lives on a farm two miles out of Potlatch, and farms for a living. The farm home had been the family home during the marriage. Bunney has never remarried. Poesy remarried in June, 1973 and lives with her new husband and the children in the village of Potlatch.) At one time, he went so far as to run away from his mother's home and went to his father's farm. The testimony is unclear as to how vigorously the father encouraged this, but it is clear he did not discourage it. At one time the father allegedly went to town to pick up the boy and bring him to the farm for an unauthorized visit. When the boy 'ran away' the mother filed a complaint under the Youth Rehabilitation Act to bring the boy back (which complaint was later dismissed). The boy was asked at trial why he wanted to live with his father, and answered that he had more things to do on the farm, had more fun there, enjoyed the farm chores, and generally indicated a desire to live on the farm in his father's custody. The daughter, Bonnie, is the oldest child. She testified that she has had some difficulties with her mother, that she likes the country, that she gets along better with her father, and that she desires to live in the old family house in the country with her father and brother.

In Strain v. Strain, 95 Idaho 904, 523 P.2d 36 (1974), we noted the standard applied in reviewing a custody decision:

Questions of child custody are within the discretion of the trial court, and it has been repeatedly held that this Court will not attempt to substitute its judgment and discretion for that of the trial court except in cases where the record reflects a clear abuse of discretion by the trial court.' Strain v. Strain, 95 Idaho 904, 523 P.2d 36 (1974).

We thus review the record to determine whether the refusal to modify custody reflects an abuse of discretion.

The rule governing changes of child custody is well settled and has been stated as follows:

'A divorce decree granting custody of a minor child to one of the parties may not be modified unless there has been a material, permanent and substantial change in conditions and circumstances subsequent to entry of the original decree which would indicate to the court's satisfaction that modification would be for the best interests of the child.' Tomlinson v. Tomlinson, 93 Idaho 42, 47, 454 P.2d 756, 761 (1969).

In applying this standard, the district court concluded as a matter of law that no change had been shown and thus the requested custody change was denied.

While the material, permanent and substantial change standard is a sound legal principle, care must be exercised in its application. The tendency is to search for some greatly altered circumstance in an attempt to pinpoint the change called for by the rule. Thus, the emphasis is placed on defining some change, and making that change appear, in itself, to be material, permanent and substantial. This focus is misleading. The important portion of the standard is that which relates the change in conditions to the best interest of the child. The changed circumstance standard was designed, as a matter of policy, to prevent continuous re-litigation of custody matters. That policy goal, however, is of secondary importance when compared to the best interest of the child, which is the controlling consideration in all custody proceedings. Bryant v. Bryant, 92 Idaho 76, 78, 437 P.2d 29 (1968); Patton v. Patton, 88 Idaho 288, 399 P.2d 262 (1965); Stratton v. Stratton, 87 Idaho 118, 391 P.2d 340 (1964); Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784 (1963); Rogich v. Rogich, 78 Idaho 156, 299 P.2d 91 (1956). The court must look not only for changes of condition or circumstance which are material, permanent and substantial, but also must thoroughly explore the ramifications vis-a-vis the best interest of the child, of any change which is evident. What may appear by itself to be a small and insignificant change in circumstances may have signficant effects insofar as children are concerned.

Care must also be taken to avoid 'compartmentalizing' consideration of a child's best interest in successive attempts at custody modification. The best interest of a child, like its growth, is a matter of development. An emerging pattern which is not apparent in a first consideration may come into focus at some later time. The court should allow and consider all evidence relevant to a child's interest, not just that evidence which has emerged since previous orders.

In determining a child's custody, it is necessary that findings of fact and conclusions of law as to all relevant issues be made by the trial court and included in the record on appeal. Clark v. Clark, 89 Idaho 91, 403 P.2d 570 (1965). Failure to do so is error. Gish v. Gish, 72 Idaho 465, 244 P.2d 143 (1952). Here, the court failed to make a finding of fact as to the best interest of the children and the part played by various factors in determining that outcome. The magistrate court initially found that the best interests of the two children mandated paternal custody. However, the findings of fact were amended on motion by the respondent, and the modified findings do not mention the best interests of the children. The district court likewise failed to make a finding as to the best interests of the children. We therefore must remand this cause for proper findings on that issue.

Several factors are relevant to the curt's consideration on remand and merit discussion here. Appellant argues that the children's expressed preference should have such weight as to be, in essence, controlling. The magistrate court considered the children's wishes and awarded custody to the appellant. The district court refused to consider the children's wishes and left custody with the respondent. We believe that neither polar approach is proper.

A child's preference should be considered in determining the custody of that child:

'It appears to be the almost universal rule that when a child is of sufficient age, intelligence, and discretion to exercise an enlightened judgment as to its future welfare, based upon facts and not mere whims, its wishes are one factor which may be considered by the court in determining custody * * *' Annotation, Custody-Child's Wishes, 4 A.L.R.3d 1396, 1402 (1965) (and numerous cases cited therein).

The desire of the child becomes particularly important as the child grows older and more intelligent. With age comes an increased capacity on the part of the child to evaluate his own circumstance and determine what living situation is optimal. Also, with age comes a decreased ability to impose a custody order on a child which is contrary to the desires of the child. As the Oregon Court commented in Hurner v. Hurner, 173 Or. 349, 170 P.2d 720 (1946), 'It is victually impossible to compel a fifteen year old boy, against his will, to remain in the custody of his mother * * *.' ¹ In the time elapsed between the hearing and this appeal, the children have grown two years older. Greater weight must be given even now to the choice of the children than at the time of the hearing. This is not to say that the child's choice is decisive. That preference should be considered as 'persuasive, although not controlling.' Hurner v. Hurner, supra; Johnston v. Johnston, 155 Or. 256, 63 P.2d 209 (1936). It must be considered as secondary to the best interest of the child:

'The course of conduct initiated by the mother in resorting to the filing of the petition is, actually, a criminal...