Roberts v. Roberts, 27738.

• Decision Date: 10 February 2003
• Docket Number: No. 27738.,27738.
• Citation: 138 Idaho 401,64 P.3d 327
• Parties: Kimberly ROBERTS, Plaintiff-Appellant, v. Larry J. ROBERTS, defendant-Respondent.
• Court: Idaho Supreme Court

64 P.3d 327

138 Idaho 401

Kimberly ROBERTS, Plaintiff-Appellant, v. Larry J. ROBERTS, defendant-Respondent.

No. 27738.

Supreme Court of Idaho, Twin Falls, November 2002, Term.

February 10, 2003.

Cosho, Humphrey, Greener & Welsh, Boise, for appellant. Daniel Glynn argued.

Parsons, Smith & Stone, Burley, for respondent. William Parsons argued.

TROUT, Chief Justice.

This is a permissive appeal to this Court directly from a magistrate judge's decision to increase a father's visitation and prohibit a mother from relocating with the children outside of Cassia and Minidoka Counties to Boise, Idaho.

I. FACTUAL AND PROCEDURAL BACKGROUND

Larry Roberts (Larry) and Kimberly Roberts (Kimberly) were married in 1985 and had two children prior to divorcing in 1996. As part of the divorce proceedings, the parties signed a "Custody and Property Settlement Agreement" (Custody Agreement) and a "Parenting Plan." In the Custody Agreement, the parties agreed to share joint legal custody of the children with Kimberly receiving primary physical custody subject to Larry's rights as set forth in the Parenting Plan. The Custody Agreement also contains the following limitation on relocation: "Wife shall reside in Cassia or Minidoka County and will not permanently remove the children from either of said counties without the written consent of Husband or prior court order."

The Parenting Plan provides Larry with visitation rights every other weekend, four weeks over the summer vacation, and alternating holidays. In addition, through various provisions in the Parenting Plan, the parties agreed they would continue to have on-going contact with the children to optimize the children's relationship with both parents. In terms of relocation, the Parenting Plan provides:

We each agree to communicate with the other parent prior to moving from our current residence because a move could affect the nature of this parenting arrangement. In case of a move, our communication would focus on how we can still be involved as parents in a way that would meet the needs of the children.

On March 16, 2000, almost four years after the divorce, Larry filed a Petition to Modify the child support and custody schedule. Larry sought greater visitation with the children because he wanted to take a more active role in their school routine and daily activities, his workload had adjusted such that he had more time to spend with the children, and the children were now older, more independent, and more able to spend time away from their mother. On October 17, 2000, Kimberly filed a Counterpetition to Modify the judgment and decree of divorce to allow her to move to Ada County for employment purposes. Neither party requested a change of custody.

On April 11, 2001, the parties participated in a mediation with the magistrate judge assigned to the case. When mediation failed to produce a settlement, the parties agreed to submit a set of stipulated facts to the magistrate to avoid an adversarial evidentiary hearing. The stipulated facts include: Kimberly has been involved in a relationship with Ed Davis (Davis) since 1997, and is presently engaged to marry him; Davis is on probation for embezzlement; and Kimberly plans to move to Boise with Davis. In addition, the parties stipulated the court could use the written custody evaluation and deposition of Dr. Atkin to help make its decision.

Based on the stipulated facts, Dr. Atkin's Custody Evaluation, the deposition testimony of Dr. Atkin, and the parties' tax returns for 2000, the magistrate judge concluded it would not be in the best interests of the children to move 160 miles away from their father. For that reason, the magistrate would not agree to permitting Kimberly to relocate to Boise, unless she did so without taking the children with her. The order recited that if Kimberly did decide to relocate, then custody would be transferred to Larry, so the children could continue to reside in the Burley area. Kimberly then appealed the magistrate's decision and sought permission to appeal directly to the Supreme Court pursuant to Idaho Appellate Rule 12.1. Permission was granted and the appeal is now before this Court.

II. STANDARD OF REVIEW

This case is on direct permissive appeal from a decision of a magistrate judge affecting the custody of minor children; therefore, this Court is directly reviewing the magistrate's decision without the benefit of a district court appellate decision. In custody disputes, the awarding of custody of minor children rests within the discretion of the trial court whose decision will not be overturned on appeal absent an abuse of discretion. Koester v. Koester, 99 Idaho 654, 657, 586 P.2d 1370, 1373 (1978). In general, a trial court does not abuse this discretion so long as it recognizes the issue as one of discretion; acts within the outer limits of its discretion and consistently with the legal standards applicable to the available choices, and reaches its decision through an exercise of reason. Sun Valley Shopping Ctr. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991). Further, in any court decision affecting children, the best interests of the child should be the primary consideration. See, e.g., Cope v. Cope, 98 Idaho 920, 921, 576 P.2d 201, 202 (1978) (holding the paramount question in any custody suit, including a change of custody suit, is how will the best interests of the child be served); Doe v. Roe, 133 Idaho 805, 808, 992 P.2d 1205, 1208 (1999) (holding the best interests of the child standard applies in proceedings to terminate parental rights); In re: Crocheron's Estate, 16 Idaho 441, 445, 101 P. 741, 744 (1909) (holding the best interests of the child standard applies where the legal right of a parent to the guardianship of the child is unclear).

III. DISCUSSION

Kimberly raises three issues on appeal: (1) whether the magistrate judge abused his discretion in deciding to transfer custody of the children to Larry in the event Kimberly moves outside the Mini-Cassia area; (2) whether the magistrate incorrectly applied the California and New York law upon which he relied in reaching his decision; and (3) whether Kimberly should be awarded attorneys' fees and costs incurred in bringing the appeal, pursuant to I.C. § 32-704.

A. The Magistrate Judge Did Not Abuse His Discretion in Determining the Children Should Remain in the Mini-Cassia Area.

Kimberly argues the magistrate judge abused his discretion in two ways. First, Kimberly argues the magistrate failed to apply the appropriate legal standard as set forth in I.C. § 32-717.¹ Second, Kimberly argues the factors the magistrate considered do not support the order transferring the children's custody in the event Kimberly relocates outside the Mini-Cassia area. However, this Court determines the magistrate did not abuse his discretion: the magistrate recognized the issue as one of discretion, acted within the limits of his discretion and applied the correct standard, and reached the decision through an exercise of reason.

The central problem with Kimberly's first argument is she has characterized the magistrate's decision as a change of custody when, in fact, the magistrate's decision initially determined whether Kimberly should be allowed to relocate with the children, and only secondarily awarded custody to Larry and only if Kimberly chose to move to Boise. While the statutory factors set forth in I.C. § 32-717 may have some relevance, the decision here related more to what town the children would live in, rather than in whose custody they would reside. Moreover, while the trial court may not have cited to I.C. § 32-717 in the decision, the magistrate, in fact, applied the statutory factors relevant to a relocation decision. The magistrate considered the interaction and interrelationship of the children with their parents, the children's adjustment to their school and community, the health and integrity of all individuals involved, and continuity and stability in the children's lives. Thus, the trial court's decision was properly guided by an analysis of the best interests of the children.

Kim's second argument also fails, because the magistrate acted within his discretion by considering factors relevant to the best interests of the child analysis and his findings support his ultimate decision, demonstrating the decision was reached by an act of reason. In support of the decision to deny Kimberly's request to move with the children to Boise, the magistrate enumerated seven major factors relevant to the best interests of the child analysis. While Kimberly argues there are various problems with these findings, including an undue emphasis on Kimberly's fiancé, Davis, this Court determines these findings are competent and relevant and support the magistrate's ultimate decision.

Findings are competent, so long as they are supported by substantial, albeit possibly conflicting, evidence. Lickley v. Max Herbold, Inc., 133 Idaho 209, 211, 984 P.2d 697, 699 (1999). Findings pertaining to custody are relevant, so long as they bear an appropriate nexus to the best interests of the child standard. See Roeh v. Roeh, 113 Idaho 557, 558, 746 P.2d 1016, 1018.

Of the seven major factors listed by the magistrate, only one related to Davis, his substance abuse problems, and his felony record. It was entirely appropriate for the judge to consider Kimberly's living arrangements, including the person with whom she was living, particularly given his legal problems. Those findings clearly related to the health and integrity of the individuals who would have direct and close contact with the children. Furthermore, these findings do not place undue importance on Davis, since the judge included six other findings in support of his decision. Included within the magistrate's analysis and relevant to the best interests of the children are the children's ability to continue to have a relationship with Larry if Kimberly moved to...