Rohr v. Rohr

• Decision Date: 19 October 1990
• Docket Number: No. 18547,18547
• Citation: 800 P.2d 85,118 Idaho 689
• Parties: Teresa Ann ROHR, Plaintiff-Appellant, v. William Michael ROHR, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 85

800 P.2d 85

118 Idaho 689

Teresa Ann ROHR, Plaintiff-Appellant, v. William Michael ROHR, Defendant-Respondent.

No. 18547.

Supreme Court of Idaho.

Oct. 19, 1990.

John B. Kugler, Pocatello, for plaintiff-appellant.

Gregory C. May, Pocatello, for defendant-respondent.

BOYLE, Justice.

This case is before us on review from the Idaho Court of Appeals, Rohr v. Rohr, 118 Idaho 698, 800 P.2d 94 (1989). Although we granted review on all issues, the primary question presented is one of first impression and requires us to decide whether the divorce courts of this state have authority to require a custodial parent to execute a written waiver of tax exemption status for Internal Revenue Service purposes pursuant to I.R.S. § 152(e) (1988). 26 U.S.C.A. § 152(e) (West 1988).

Teresa Rohr (hereinafter "Teresa"), asserts that the magistrate did not have authority to require her, as the custodial parent, to execute a waiver allowing William Rohr (hereinafter "William"), to claim the federal tax exemption for their minor child. In addition to the tax exemption issue, Teresa contends that the magistrate court erred in dismissing William's petition for modification of the decree without considering her independent claim for relief. Teresa also claims that the magistrate should have held William in contempt of court for failure to pay child support and that she should have been awarded attorney fees for defending William's petition for modification of the decree.

The parties were divorced in July, 1986. Physical custody of their minor child was awarded to Teresa and William was allowed visitation rights pursuant to the stipulated decree of divorce. The decree required William to maintain insurance for the child and provided that if he remained current on child support obligations he would be entitled to claim the child for federal income tax exemption purposes.

Less than six months after the divorce decree was entered disputes arose between the parties. Subsequently, several motions were filed requesting the assistance of the magistrate court in enforcing each party's interpretation of the decree. At the hearing to determine whether William should be liable for Teresa's attorney fees, William's attorney orally moved to dismiss his motion for modification of the decree. ¹ Later that same day Teresa filed a response to Williams's petition to modify. Two days later the magistrate entered an order denying attorney fees. Eight days later the magistrate signed an order dismissing William's petition for modification without prejudice.

Several weeks later a hearing was held on the contempt petitions and two separate orders were issued. In one order the magistrate judge ordered Teresa to

[c]ease from claiming the minor child as a tax exemption in violation of and as provided for in said Decree and that the Plaintiff shall be liable for any tax assessment that the Defendant may be required to pay as a result of her claiming the minor child as an exemption.

In the other order the magistrate found that neither party was in contempt, however, he clarified the divorce decree by ordering William to make his child support payments in one monthly lump sum rather than every two weeks and set forth specific days and times when visitation with the child would be allowed.

The district court affirmed the magistrate's decision and on appeal from the district court the case was assigned to the Court of Appeals. The Court of Appeals affirmed the district court's decision on the issues of attorney fees, dismissal of William's petition and the tax exemption, however it remanded the case to the district court for the purpose of requiring the magistrate court to dismiss Teresa's claim with a reasonable explanation or to hear it on the merits. We granted Teresa's petition for review.

I. Standard on Appeal

Error cannot be presumed on appeal, but requires an affirmative showing, Carpenter v. Double R Cattle Co., 108 Idaho 602, 701 P.2d 222 (1985), and findings of fact made by a trial court will not be set aside unless they are clearly erroneous. I.R.C.P. 52(a); Rueth v. State, 103 Idaho 74, 644 P.2d 1333 (1982); Marshall Bros. v. Geisler, 99 Idaho 734, 588 P.2d 933 (1978); Beall Pipe & Tank Corp. v. Tumac Intermountain, Inc., 108 Idaho 487, 700 P.2d 109 (Ct.App.1985). Further, the factual findings of the trial court will not be disturbed on appeal where they are supported by substantial and competent evidence, even though such evidence may be conflicting, State v. Tierney, 109 Idaho 474, 708 P.2d 879 (1985); MacNeil v. Minidoka Memorial Hosp., 108 Idaho 588, 701 P.2d 208 (1985); Pointner v. Johnson, 107 Idaho 1014, 695 P.2d 399 (1985); Circle C Ranch Co. v. Jayo, 104 Idaho 353, 659 P.2d 107 (1983), and on appeal the appellate court's responsibility is to review the record to determine whether the trial court's findings are supported by substantial, competent evidence. Heacock v. Madsen, 108 Idaho 65, 696 P.2d 916 (Ct.App.1985). This reflects the view that deference must be given to the special opportunity of the trial court to assess and weigh the credibility of the witnesses who appear before it. State v. Tierney, 109 Idaho 474, 708 P.2d 879 (1985); Wolford v. Tankersley, 107 Idaho 1062, 695 P.2d 1201 (1984).

II. Child Support and Visitation

The magistrate clarified the divorce decree by ordering William to pay the monthly child support payment in one lump sum on the first of each month rather than every two weeks, and in so doing did not abuse his discretion. Our review of the record satisfies us that William was substantially current in his child support obligation although he had made several late payments. The record demonstrates that William thought that he had an agreement with Teresa whereby he could pay his child support in two monthly installments because he received his employment paycheck every two weeks. The magistrate declined to find William delinquent or in arrears on child support and did not find him in contempt. In this we find no error.

Likewise, the magistrate's finding that Teresa denied William visitation is supported by substantial and competent evidence in the record and will not be disturbed on appeal.

III. Dismissal of Petition

Teresa asserts that it was error to dismiss William's petition to modify the decree when her responsive pleading seeking affirmative relief was pending.

The Court of Appeals correctly determined that the magistrate acted pursuant to the discretionary authority prescribed under I.R.C.P. 41(a)(2) ² rather than under I.R.C.P. 41(a)(1). ³ In this instant appeal no notice of dismissal or signed stipulation of dismissal had been filed in the trial court. One of these written documents must be filed as a prerequisite to obtaining a dismissal pursuant to I.R.C.P. 41(a)(1). However, I.R.C.P. 41(a)(2) allows dismissal of an action by court order upon such terms and conditions as the court deems proper. The dismissal as well as the terms and conditions are discretionary with the trial court. Adney v. Mississippi Lime Co. of Missouri, 241 F.2d 43 (7th Cir.1957).

It is well established that our adoption of the Idaho Rules of Civil Procedure is presumably with the interpretation placed upon similar language in the Federal Rules of Civil Procedure by the federal courts. Durrant v. Christensen, 117 Idaho 70, 785 P.2d 634 (1990); Chacon v. Sperry Corp., 111 Idaho 270, 723 P.2d 814 (1986). The Court of Appeals' analysis of the issue in the instant case is noteworthy and bears quoting.

Adoption of I.R.C.P. 41(a)(1) and 41(a)(2) (hereinafter Rules), however, has altered the practice of obtaining a voluntary dismissal. The Idaho Rules, which are almost identical to the corresponding federal rule, define three ways to dismiss an action. The first and second methods, covered by Rule 41(a)(1), provided for dismissal by notice or by stipulation of the parties. Rule 41(a)(2) provides for dismissal by order of the court. Generally, voluntary dismissal under Rule 41(a)(1) is a matter of right; the plaintiff need not obtain the court's consent to do so. See 9 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2363 (1971) (hereinafter WRIGHT & MILLER). However, Rule 41(a)(1) does require the plaintiff to file notice of the dismissal. Filing connotes the delivery of an instrument or writing to the clerk or proper official for the purpose of being kept on file by him as a matter of reference or record. BLACK'S LAW DICTIONARY 566 (5th ed. 1979); see City of Overland Park v. Nikias, 209 Kan. 643, 498 P.2d 56 (1972). As we noted above, William failed to file such a notice, but instead made an oral motion in open court. Therefore, Rule 41(a)(1) is inapplicable in this case.

Our review of Teresa's claim does not end here. Rule 41(a)(2) provides for dismissal by court order, upon such terms and conditions as the court deems proper. Unlike Rule 41(a)(1), a motion to dismiss under this rule is not a matter of right, but is discretionary with the trial court both as to whether a dismissal should be allowed, as well as to the terms and conditions to be imposed, if allowed. Adney v. Mississippi Lime Co. of Missouri, 241 F.2d 43 (7th Cir.1957); see 5 MOORE'S FEDERAL PRACTICE p 41.05 (2d ed. 1988) (hereafter MOORE). The purpose for the court's discretionary authority under this rule is to insure that the court pays due regard to the interests of both the plaintiff and defendant; dismissal of the plaintiff's action must not unfairly jeopardize the defendant's interests. See MOORE at p 41.05; Smithloff v. Benson, 328 S.E.2d 759 (Ga.App.1985). Furthermore, a counterclaim is not necessarily subject to dismissal because of dismissal of the plaintiff's action. Smithloff v. Benson, supra. Rule 41(a)(2) further states that if the defendant files a counterclaim prior to service upon him or her of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim...