Schneider v. Schneider

• Decision Date: 08 August 2011
• Docket Number: No. 37638.,37638.
• Citation: 151 Idaho 415,258 P.3d 350
• Court: Idaho Supreme Court
• Parties: Jimmy Ray SCHNEIDER, Plaintiff–Respondent, v. Dorothy Michell SCHNEIDER, Defendant–Appellant.

151 Idaho 415

258 P.3d 350

Jimmy Ray SCHNEIDER, Plaintiff–Respondent,

v.Dorothy Michell SCHNEIDER, Defendant–Appellant.

No. 37638.

Supreme Court of Idaho, Boise, May 2011 Term.

Aug. 8, 2011.

Ludwig, Shoufler, Miller, Johnson, LLP, Boise, for appellant. Michael R. Johnson argued.

Ann K. Shepard, Boise, argued for respondent.

BURDICK, Chief Justice.

After conducting an informal custody trial and granting the parties' divorce, the magistrate judge awarded the parties joint legal custody of their two minor children and awarded primary physical custody to their father, Respondent Jimmy Schneider (Jimmy), subject to visitation rights awarded to their mother, Appellant Dorothy Michell Schneider (Michell). Michell appeals, arguing that: (1) the magistrate judge improperly rejected the testimony of Michell's primary treating physician concerning Michell's ability to provide proper parental care despite suffering from multiple medical conditions and taking numerous prescription medications; (2) the magistrate judge abused its discretion by granting primary custody of the children to Jimmy and ordering that Michell be allowed to provide care on school days while Jimmy is at work both in the morning before school at Jimmy's residence and after school at her home, instead of simply allowing the children to reside with her during the school week; (3) the magistrate judge failed to consider I.C. § 32–717(2), which gives a parent with a disability the right to provide evidence, which the court must take into account, concerning the manner in which adaptive equipment and supportive services will enable the parent to provide proper parental care; and (4) the magistrate judge erred by not making a record of its in-camera interview of the children.

I. FACTUAL AND PROCEDURAL BACKGROUND

Jimmy and Michell married on June 28, 1993, in Emmett, Idaho. They have two children born of their marriage, Daughter and Son. On March 12, 2009, Jimmy filed the Complaint for Divorce, alleging irreconcilable differences. Jimmy requested an equitable division of the parties' community property and debt and requested joint legal custody of the children with primary physical custody with Jimmy, subject to reasonable visitation with Michell. Thereafter, Michell filed her Verified Answer and Counterclaim, and Jimmy filed his Answer to Counterclaim.

On June 22, 2009, based upon the stipulation of the parties, the magistrate judge entered an Order for Mediation, ordering the parties to attend at least three mediation sessions. Eventually, a trial was scheduled for October 19, 2009. On October 15, 2009, each party filed a Consent to Informal Custody Trial pursuant to I.R.C.P. 16(p) and a Waiver of the Rules of Evidence for Informal Custody Trial. An informal custody trial commenced on October 19, 2009, and the parties placed their stipulation regarding property and debt issues on the record and submitted a Property and Debt Schedule. Jimmy and Michell testified regarding the best interests of the children.

At the end of the first day of trial, the magistrate judge scheduled a continuation of the trial for November 24, 2009, for further discussion of custody of the children, specifically concerning the details of Michell's use of prescription medications. The magistrate judge temporarily ordered a 50/50 custody schedule with the condition that Michell not drive the children until the magistrate judge received a release from a doctor with knowledge of the medications she takes. On November 5, 2009, the magistrate judge entered a Temporary Order, ordering the parties to alternate weekly custody of the children beginning on the day Michell moved out of the marital home.

The second and final day of trial was held on November 24, 2009. Tina McGuffey, Michell's primary care physician, testified regarding Michell's medical conditions and prescribed medications. Thereafter, the magistrate judge took the matter under advisement. After trial, the parties stipulated to an Order for In–Camera Interview, which was entered pursuant to I.R.E. 611, and provided that the magistrate judge would interview Daughter on December 15, 2009.

On December 16, 2009, the magistrate judge issued its Memorandum Decision and Order. The magistrate judge found that irreconcilable differences existed and granted the divorce. On March 18, 2010, the magistrate judge issued a Judgment and Decree of Divorce, incorporating the Memorandum Decision and Order and the parties' stipulation for the division of community property and debt from October 19, 2009. The magistrate judge ordered the parties to share joint legal custody, finding "based upon the evidence presented at trial ... both parties should have input managing the day to day lives of their children." Jimmy was awarded primary physical custody. Michell was granted the following visitation rights: (1) to care for the children in the morning at Jimmy's house on days when Jimmy leaves for work around 4:30 am to get them ready for school, subject to certain conditions that she respect Jimmy's privacy while in his home; (2) visitation after school at her residence until Jimmy returns from work around 5:00 pm; (3) visitation the first and third weekend of each month during the school year; and (4) 60 consecutive days of summer visitation, subject to Jimmy's visitation on the first, third and fifth weekends of the month.

When it addressed primary custody in its Memorandum Decision and Order, the magistrate judge first explained:

Many of the factors set forth [in I.C. § 32–717(1) ] are a wash. The Court has considered the wishes of the parents, the interaction and interrelationship of the children with each other and their parents, and there appears to be no sustainable allegations of domestic violence, the Court finds none of these factors to weigh more heavily toward one parent or the other. Thus, in making its determination the Court will focus on the need to promote continuity and stability in the life of the children, the character and circumstances of all individuals involved and their adjustment to their home, school and community.

As to the character and the circumstances of the individuals, the magistrate judge concluded that this factor weighed in favor of Jimmy. The magistrate judge found: "[Jimmy] is employed and in reasonably good health. The Court has serious concerns about [Michell's] current and future abilities to meet the needs of her children." The magistrate judge set forth its concerns about Michell as follows:

Ms. Schneider suffers from several long term chronic illnesses and takes a number of medications on a regular basis....

In reviewing the exhibits submitted many of these medications increase sedation. During the trial, [Jimmy] described times when [Michell] would simply and suddenly fall asleep. This appears to be consistent with the medications taken. In an attempt to address this issue, Ms. Schneider was prescribed Nuvigil, however, coverage was denied. The number and types of medications caused the Court grave concern. The Court asked for an independent review of the medications taken. [Michell] had her primary care physician testify. Her doctor testified that [Michell] tolerated the medication well. [Michell's] doctor further testified that [Michell] was fine to drive short distances and that she believed the medications did not interfere with [Michell's] ability to parent.

The evidence presented in Court leads the Court to find that [Michell] functions better then [sic] can be expected based upon her overall health and use of multiple medications. An independent assessment of [Michell's] medication regimen was provided by her primary physician's partner. During questioning [Michell's] doctor would not concede, at all, that the medication regimen interferes with [Michell's] ability to parent. That testimony was not consistent with the other evidence at trial.

The magistrate judge raised two main concerns in the Memorandum Decision and Order which it believed were inconsistent with Dr. McGuffey's testimony concerning the effect of Michell's medication regime and her ability to parent. First, the magistrate judge noted Michell's potentially dangerous behavior of leaving narcotics in a disheveled room at home, as shown by pictures admitted into evidence, as well as her odd behavior in, according to her testimony, creating this potentially dangerous situation for the purpose of discouraging Jimmy from going through her things. Second, the magistrate judge noted Michell's potential inability to react to emergency situations due to evidence that she takes narcotics that cause sedation, testimony that she may fall asleep without notice during normal activities, and the fact that the Dr. McGuffey, while testifying that Michell does not have a problem with suddenly falling asleep, is trying to treat Michell with the stimulant Nuvigil.

As to the factor of continuity and stability, the magistrate judge stated in the Memorandum Decision and Order that Jimmy "is in the best position to promote continuity and stability" without further explanation. The magistrate judge added: "That being said, the Court also finds that [Michell] should have frequent and constant involvement in the lives of the children. [Michell], because of her chronic illness does not work and is therefore always available to care for the children when [Jimmy] is at work."

Finally, in the Memorandum Decision and Order, the magistrate judge noted that in the in-camera interview the children expressed opposite preferences as to the parent with which they wished to live. The magistrate judge stated that it could not find that splitting up the children was in their best interests, as the children rely on each other.

On March 31, 2010, Michell filed a Motion for Permissive Direct Appeal with the magistrate. After a hearing on the motion, the magistrate judge granted the motion. On April 29, 2010, Michell filed a Motion for Permissive Direct Appeal with this Court, which was...