Reed v. Reed
| Citation | 379 P.3d 1042,160 Idaho 772 |
| Decision Date | 09 September 2016 |
| Docket Number | Docket No. 44056–2016 |
| Court | United States State Supreme Court of Idaho |
| Parties | Chelsea REED, n/k/a Chelsea Sorensen, Plaintiff–Respondent, v. Zane REED, Defendant–Appellant. |
Jeffrey D. Brunson, Beard St. Clair Gaffney PA, Rexburg, argued for appellant.
Dustin W. Manwaring, Milestone Law Firm, Pocatello, argued for respondent.
This is an appeal out of Bingham County from an amended judgment in a divorce action permitting the mother to move to Montana with the parties' two children. We affirm the amended judgment.
On February 29, 2008, in Bingham County, Chelsea Reed obtained a divorce from Zane Reed on the ground of adultery, terminating their five-year marriage. They had twin daughters who were about three years of age. Chelsea was awarded primary physical custody of the twins, and Zane was awarded visitation as follows: (a) "Any given Saturday he desires from 9:00 a.m. until 6:00 p.m."; (b) "3 evenings per month from 6:00 p.m. until 8:00 p.m., with prior arrangements made with Plaintiff"; and "No overnight privileges at this time due to Defendant's living arrangements." As the twins became older, the parties agreed to change Zane's visitation. Depending upon his work schedule, he picked up the twins every other weekend on Friday evening and returned them on the following Sunday morning. He also had the twins for periods of time during Christmas break and the summer vacation.
At the time of the divorce, Chelsea lived in Bingham County. In 2009, she married Daniel Sorensen, and they are still married. They have two sons born during their marriage.
In August 2010, Zane married and moved to Pocatello. That marriage later ended in divorce, and he and his wife have one child born during the marriage. At the time of the proceedings giving rise to this appeal, Zane was in a relationship with a woman named Kate, who lived in Boise with her two children. Zane's employer is headquartered in Boise, but he was required to travel to various construction projects in the southern part of the state. He rented a home in Bingham County from his grandfather, and he paid the rent to Kate who lives in a rental house in Boise. He testified that he was spending about half the time living with Kate in Boise.
In August 2015, Daniel graduated from Idaho State University with a Master's of Physician Assistant Studies degree. He had sent out about thirty applications for employment, but received only two job offers, one in Medicine Bow, Wyoming, and the other in Havre, Montana. Chelsea informed Zane that she and Daniel intended to move to Havre with the twins and that they hoped to return to Idaho in two or three years.
On August 4, 2015, Zane filed a petition to modify the divorce decree to provide either that Chelsea could not move the twins to Montana or, in the alternative, that he be awarded primary physical custody with Chelsea having liberal visitation. After a hearing, the magistrate court entered a temporary order permitting Chelsea to move to Havre with the twins and requiring her to be responsible for transporting the twins from Havre to Blackfoot, Idaho, in order for Zane to exercise visitation every other weekend.
Zane's petition to modify the divorce decree was tried on December 10 and 11, 2015. After the trial, the magistrate court issued a written decision finding that there had been a substantial and material change in circumstances since the entry of the divorce decree and that it was in the best interests of the twins for them to live in Montana with Chelsea. The court entered an amended judgment granting Zane the following visitation: three days each month during the school year, one week during Christmas vacation, and two weeks in June, in July, and in August. Chelsea was to bear the cost of the transportation for Zane's visitation. Zane was granted permission pursuant to Idaho Appellate Rule 12.1 to appeal directly to this Court, and he did so.
Zane contends that the magistrate's decision was not based upon substantial and competent expert testimony. He does not cite any authority holding that a child custody decision must be based upon expert testimony. We have held that "[e]xpert testimony is not required to establish that termination would be in the child's best interests." In re Doe , 156 Idaho 103, 111, 320 P.3d 1262, 1270 (2014). If it is not required in order to terminate parental rights, it is certainly not required to determine what custody arrangement is in a child's best interests. In a custody proceeding, "a court is not bound by the testimony of experts." Levin v. Levin , 122 Idaho 583, 587, 836 P.2d 529, 533 (1992).
Zane's real issue is that the magistrate court did not find persuasive the testimony of his two experts. He contends that the failure of the magistrate to even mention those opinions shows that the court did not even consider them. In its opinion, the court stated that it had "fully considered the evidence presented at trial." There is no reason to believe it did not do so. The court did not mention the opinions of Chelsea's expert either. "It is the province of the trial court to weigh conflicting evidence and to judge the credibility of witnesses." King v. King , 137 Idaho 438, 442, 50 P.3d 453, 457 (2002). "A court is not bound by the recommendations of an expert regarding custody plans, and the recommendations can be rejected if the court ultimately orders a custody arrangement based on the best interests of the child." Clair v. Clair , 153 Idaho 278, 290 n.3, 281 P.3d 115, 127 (2012) ; accord Peterson v. Peterson , 153 Idaho 318, 323, 281 P.3d 1096, 1101 (2012) (). We have not required that a trial court explain why it did not find persuasive the opinion of an expert regarding child custody.
During the trial, Chelsea presented via Skype the testimony of an expert witness who resided in Havre, Montana. The issue of whether the expert's testimony could be presented via Skype was argued to the magistrate court on November 18, 2015, and on the same date it issued a written order stating that it could be. Zane contends that the court erred in permitting that testimony via Skype because there is no rule permitting it. When the matter was discussed at the beginning of the trial, the court stated that it was relying upon Rule 501 of the Idaho Rules of Family Law Procedure. That rule merely states, "The court may hold a telephone conference or video hearing on, (1) any motion, other than motions for summary judgment unless the parties stipulate or (2) any pretrial matter." I.R.F.L.P. 501.D. The rule does not purport to permit a video hearing at trial.
In arguing that this procedure justifies setting aside the magistrate court's decision, Zane points to Rule 712.A of the Idaho Rules of Family Law Procedure, which states, "In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute or by these rules, the Idaho Rules of Evidence, or other rules adopted by the Supreme Court of Idaho." He also points to decisions from other jurisdictions that stress the importance of live testimony in court. Had the magistrate court decided to deny Chelsea's motion to allow the expert to testify via electronic communication, the expert's testimony could have been admitted without her personal appearance in court. The expert was in Havre, Montana. Because she was out of state, her deposition could have been taken in Montana, and any or all of her deposition, to the extent that it was admissible under the rules of evidence applied as if she was then testifying in open court, could have been used by either party. I.R.F.L.P. 439.C.2.1
On appeal, it is not sufficient simply to show error. A party alleging error must also show that the error affected the party's substantial rights. Rule 810 of the Idaho Rules of Family Law Procedure states:
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Apparently in an attempt to show that the error was not harmless, Zane points to his attorney's difficulty in cross-examining the expert because of the delay between his question and the witness's response. He would ask another question before the answer was received, and he was admonished by the court several times to wait for the answer. Zane also states that there were some technical difficulties and that some of the expert's answers were unintelligible and that the video screen temporarily went blank. None of these issues show that Zane's substantial rights were affected. Chelsea's counsel did not appear to have any difficulty waiting for the answers before asking another question. The difficulty that Zane's attorney had in dealing with the technology and the few apparent technical glitches do not show an adverse affect on Zane's substantial rights. The few unintelligible answers likewise do not do so. The expert's testimony was being recorded, and even the answers of witnesses who testify in person are sometimes unintelligible, especially with audio recordings which are standard in magistrate court. Zane has failed to show that his substantial rights were affected by the court's decision to permit the expert to testify via Skype.
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