Roeh v. Roeh

• Decision Date: 30 November 1987
• Docket Number: No. 16664,16664
• Citation: 113 Idaho 557,746 P.2d 1016
• Parties: Erin P. ROEH, Plaintiff-Respondent, v. Robert P. ROEH, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1016

746 P.2d 1016

113 Idaho 557

Erin P. ROEH, Plaintiff-Respondent, v. Robert P. ROEH, Defendant-Appellant.

No. 16664.

Court of Appeals of Idaho.

Nov. 30, 1987.

Marc J. Weinpel (Weinpel, Woolf, Just, Combo & Davis), Idaho Falls, for defendant-appellant.

Royce Lee (Jenkins Law Office), Idaho Falls, for plaintiff-respondent.

WALTERS, Chief Judge.

Upon appeal to the district court, a decision by a magistrate to award custody of a minor child to Robert Roeh in a divorce action was held to be in error. The district court found that the magistrate relied on evidence too remote in time to be relevant in determining the best interests of the child. The district court set aside the custody award and remanded the case to the magistrate for further proceedings. Mr. Roeh appeals from the district court's decision. We affirm.

The facts are as follows. Erin Roeh was previously married from March of 1978 until her divorce in June of 1981. She and Robert Roeh were married in January of 1982. On December 18, 1983, they had a daughter, Faith. Almost one year later, on November 13, 1984, Erin filed for divorce from Robert. After a three-day trial, ending on May 10, 1985, the magistrate concluded the marriage should be dissolved and he took under advisement the question of custody of the child. Several months later, on October 22, 1985, counsel for both parties met with the trial judge in chambers. At that meeting the magistrate orally announced his decision to award joint legal custody with primary physical custody of the minor child to Mr. Roeh. The court directed Mr. Roeh's counsel to prepare the findings of fact and conclusions of law. Those counsel-drafted findings, conclusions and judgment were adopted verbatim by the trial court and entered on January 6, 1986. As entered, the magistrate's findings and conclusions determined that "joint legal custody," with "primary physical custody" in Mr. Roeh, should be awarded. Erin appealed to the district court. The district court set aside the lower court's custody decision and remanded the case for the introduction of new evidence. The district court ruled that the findings prepared by Mr. Roeh's counsel assigned excessive weight to "irrelevant" evidence of past behavior presented at trial rather than focusing upon matters that would demonstrate present parental fitness and the current parent-child relationship. Mr. Roeh then appealed.

On this appeal, we are not bound by the district court's appellate decision. We exercise free review, that is to say, we focus directly on the correctness of the magistrate's determination, independently of the decision of the district court. Robinson v. Joint School District No. 331, 105 Idaho 487, 670 P.2d 894 (1983); Ustick v. Ustick, 104 Idaho 215, 657 P.2d 1083 (Ct.App.1983). Essentially, the controlling issue on this appeal is whether the trial court abused its discretion in deciding the custody issue by considering improper factors in making its determination, by failing to consider statutorily mandated factors, and by assigning too much weight to some factors while ignoring others. A related issue, for guidance on remand, is whether the magistrate properly applied I.C. § 32-717B in awarding "joint custody" to both parents with primary physical custody to the father.

I

In determining custody, a child's welfare and best interests are of paramount importance. Shumway v. Shumway, 106 Idaho 415, 418, 679 P.2d 1133, 1136 (1984). The controlling statute, I.C. § 32-717, provides guidance in respect to the instant case:

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:

....

5. The mental and physical health and integrity of all individuals involved; and

6. The need to promote continuity and stability in the life of the child. [Emphasis added.]

The statute gives wide discretion to a judge regarding custody decisions. However, the statute restrictively states: "The court shall consider all relevant factors...." I.C. § 32-717 [emphasis added]. Implicitly, the court must avoid considering irrelevant factors.

In determining relevant factors for consideration, the magistrate in the instant case looked to subsection 5 of I.C. § 32-717, referring to "[t]he mental and physical health and integrity of all individuals involved." Our Supreme Court has addressed the comparative value of information relating to current fitness of a parent and information that reflects the parent's conduct more remote in time. In Blankenship v. Brookshire, 91 Idaho 317, 320, 420 P.2d 800, 804 (1966) the Court held:

The court is concerned with the fitness of the natural parent at the time of the hearing as it relates to the welfare of the child. If a parent is, at the time the question arises, a suitable person to have custody of the child, the court will not deny custody merely because sometime in the past the parent's conduct indicated a lack of integrity or responsibility.

This is not to say that the trial court must reject all evidence concerning past behavior. Some past behavior may be indicative of present parental fitness. As evidence goes back further in time--that is, becomes more remote--it is entitled to decreasing weight. At some point it becomes so remote that it no longer tends to make a fact "of consequence ... more probable or less probable" and, therefore, is inadmissible because it is not relevant under Idaho Rule of Evidence 401.

In the instant case, the record shows the trial court relied almost exclusively in its findings of fact upon evidence that was extremely remote in time and contained impermissible factors. A brief summary will illustrate the point. Of a total of twenty-four findings, seven deal with a property settlement not germane to the question before us. Three findings deal with jurisdictional and venue questions. Of the remaining fourteen findings, nine deal with events in Erin's first marriage, some three to seven years prior to the instant proceeding.

One finding (number 12) is a grammatical hodge-podge dealing with no less than eight separate findings. Although the wording declares a connection between past and present behavior, no factual connection is provided. There is reference to past lifestyle situations (pre-marital affairs and abortions) some seven to eight years earlier but no evidence to suggest such behavior is ongoing or has any effect upon the present relationship between Erin and the child in question here. The court also found that "[d]uring her early years [Erin] dabbled in drugs and alcohol." However, the evidence fails to suggest, and the court made no determination, of current usage of such substances and any effect upon the mother-child relationship. In short, finding number 12 is suspect and full of little more than speculation and innuendo. Absent any nexus between past conduct and present behavior on the mother-child relationship we must conclude the magistrate relied upon clearly impermissible factors. Further, the magistrate's findings focused heavily on a current relationship between Erin and one Swen Benson. The court found:

The evidence at trial suggested that Plaintiff was involved with one, Swen Benson. The Court finds from the evidence that a significant relationship between Plaintiff and Swen Benson occurred, including Mr. Benson being at Plaintiff's apartment numerous times, being confronted by Defendant on a number of occasions and the evidence showing there were many nights that Plaintiff spent at her apartment with Swen Benson overnight. Mr. Benson was found by the Defendant hiding in Plaintiff's bathroom after the Defendant came to the apartment in January, 1985. In addition, the Court finds it significant that Mr. Benson remained in the Courtroom during all of the proceedings herein and showed significant interest in Plaintiff and she in him.

However, the finding fails to note that both Erin and Mr. Benson testified without refutation that they had never engaged in any sexual activities. Moreover, the findings failed to note that--as disclosed to the magistrate during the trial--Mr. Benson was present throughout the trial as a result of a subpoena served on him by Mr. Roeh's counsel.

In sum, the magistrate's findings failed to establish any nexus between the welfare of the child in question and the mother's relationship with Mr. Benson. The magistrate's exercise of discretion was tainted by the "Benson factor" when that factor was not shown to have any nexus with the child's best interests.

The record does contain substantial evidence that the mother, Erin, presently leads a stable, temperate life and all the witnesses testified to her present fitness as a good mother. While we do not suggest that findings or conclusions should ignore evidence of past behavior, our concern goes to the failure of the trial court in this case to make a specific finding of fitness of the mother based upon present behavior in light of evidence to that effect.

The Alaska Supreme Court recently addressed an almost identical situation in Craig v. McBride, 639 P.2d 303 (1982). There the court said:

[W]e cannot countenance the court's reference to the mother's sexual conduct. Whether intended as condemnatory of the mother's sexual conduct or only as indicative of the mother's unstable life style, our concern is that the mother's bearing of children out of wedlock or her instability in terms of relationships should be determinative only were such conduct to adversely affect the child or the mother's parenting abilities. As we stated in Britt v. Britt, "evidence of the life-style, habits, or character of a custody claimant is relevant only to the extent that it may be shown to affect the person's relationship to the child." 567 P.2d 308, 311 (Alaska 1977). [...