Silva v. Silva

• Decision Date: 16 May 2006
• Docket Number: No. 31942.,31942.
• Citation: 142 Idaho 900,136 P.3d 371
• Parties: Nancy Ann SILVA, nka Nancy Ann Brown, Plaintiff-Respondent, v. Rudy SILVA, Defendant-Appellant.
• Court: Idaho Court of Appeals

136 P.3d 371

142 Idaho 900

Nancy Ann SILVA, nka Nancy Ann Brown, Plaintiff-Respondent, v. Rudy SILVA, Defendant-Appellant.

No. 31942.

Court of Appeals of Idaho.

May 16, 2006.

COPYRIGHT MATERIAL OMITTED

Eismann Law Offices, Nampa, for appellant.

Joseph J. Alegria II, Boise, for respondent.

LANSING, Judge.

Rudy Silva appeals a district court decision affirming a magistrate order modifying the child custody provisions of a divorce decree. Rudy also challenges the district court's award of attorney fees on the intermediate appeal.

I. BACKGROUND

Rudy and his ex-wife, Nancy Ann Brown, were divorced on February 24, 2000. During their marriage they had three children born in 1992, 1996, and 1999. In the initial divorce proceedings, Rudy and Nancy stipulated to equally share physical custody of the children. This accommodated their work schedules as both worked the night shift, 6 p.m. to 6 a.m., at Micron Technology, but on different nights. One parent could therefore tend to the children while the other parent was working. Nancy thereafter changed jobs to the night shift at the Ada County Sheriff's Office on a schedule that overlapped with Rudy's. During 2001 Nancy had very little contact with the children. During that time, Rudy was their primary caregiver, although he had substantial help from a daycare provider who kept the children at her home on the nights when Rudy had to work. The children stayed overnight with the daycare provider thirteen to fifteen nights per month.

In March 2003, for reasons that are not clear, Rudy no longer qualified for state assistance in paying for daycare, and from April to May 2003, the children stayed primarily with Nancy. After a disagreement in which Nancy asked Rudy for more financial support, the parties returned to the same fifty-fifty custody schedule that had been put in place when they worked opposite night shifts at Micron. As a result, Rudy continued to have the children mostly on his days off, while Nancy had the children primarily on days that she worked. It appears that Nancy's new husband, who held a day job, spent a considerable amount of time caring for the children. Both Rudy and Nancy also relied heavily on Nancy's parents and other friends to care for the children when work schedules interfered. During this time, Rudy and Nancy's relationship deteriorated and they disagreed about where their children should be enrolled in school.

In July 2003, Nancy filed a motion to modify the custody arrangement to give her primary physical custody of the children, and the magistrate held an evidentiary hearing on the matter in February 2004. At the end of the first day of testimony the magistrate expressed frustration at the parties' nocturnal work schedules, which interfered with their ability to care for the children in the hours before and after school. He said:

I would encourage both of you to seek changes to your either employment schedule or the status of your employment. The evidence I've heard so far, I'm gonna be up front with you about, indicates to me that these children don't have two primary parental figures in their lives. You're only available a couple of nights a week. You're available during the one times of the day that they don't need parents, which is when they're at school, and you're not available at any other time. Your kids have been raised by a step-dad, daycare providers, friends and grandparents. That's who has raised your children so far.

Now you're in front of me asking to be awarded primary custody. And you know what? It's gonna be probably the first among you who steps up, who wants to be there, available to them when they get out of school, when they're in bed, when they need help with their homework, when they need dinner and when they need breakfast. You don't want to do that, then this is gonna be a real toss-up, I can tell you right now. It's gonna be very difficult for me to decide. It will be easier for me to decide if one of you has made those changes to your schedule. And if both of you have made those changes to your schedule, I'll be back to be making a difficult decision, but at least I will know that your children are going to be raised by one of you because right now, no matter what you say and what I've heard from the witnesses so far, you have close relationships with your children but you're not the one doing the raising.

When the hearing resumed a month later, Nancy informed the court that she was attempting to change her work schedule. She said that she was slated to begin working the day shift in July, apparently as part of a regular departmental rotation, and that the schedule would remain in place for the following six months. She also said that she was pursuing a position that required only day shifts. Rudy was continuing, as before, to work twelve-hour shifts from 6 p.m. to 6 a.m. on alternating Wednesdays and each Thursday, Friday and Saturday. Rudy informed the magistrate that his supervisor had told him that changing to a day shift would be difficult or impossible because he was one of only four experts in the area where he worked and was the only one available for his shift. Changing to a day shift would also reduce his salary by two dollars an hour, and he believed there were no other comparable jobs available at other companies. However, Rudy admitted that he had only informally addressed a schedule change and had not submitted a formal request to his employer as required by company policy.

The court ultimately awarded primary physical custody to Nancy. In doing so, the magistrate court considered several factors. The court found that absent the work schedule issue, there was a general parity in the positives and negatives regarding each parent, but that the scale would probably tip toward Rudy. However, the court said that Nancy's efforts to pursue daytime work weighed significantly in her favor. The court determined that Rudy was "incapable of providing care for the children on a primary basis," and concluded that Nancy should be awarded primary physical custody of the children because living with her would create a more predictable and stable home environment. The court ordered that the parties would continue to share joint physical custody, but that the children would live primarily with Nancy. Rudy received physical custody that reflected his time off work: Sunday afternoon through Tuesday, Thursday afternoons, Saturdays in the summer when Nancy is at work, and various holidays. The court also awarded Nancy sole legal custody over decisions on school enrollment, with joint legal custody over all other matters.

Rudy appealed to the district court, which affirmed the magistrate court and awarded attorney fees to Nancy. Rudy again appeals, contending that the magistrate improperly considered or too heavily weighed the work schedule factor, that the magistrate erred in awarding Nancy sole legal custody over school enrollment decisions, and that the district court erred in awarding attorney fees on the intermediate appeal.

II. DISCUSSION

Where there has been an intermediate appeal to the district court, as here, we base our review upon the record of the magistrate proceedings and render our decision independent of, but with due regard for, the district court's decision. Ireland v. Ireland, 123 Idaho 955, 957-58, 855 P.2d 40, 42-43 (1993); Hentges v. Hentges, 115 Idaho 192, 194, 765 P.2d 1094, 1096 (Ct.App.1988). Decisions concerning the care, custody and education of minor children are committed to the sound discretion of the trial court and, in the absence of a clear abuse of discretion, that court's judgment will not be disturbed on appeal. Osteraas v. Osteraas, 124 Idaho 350, 352, 859 P.2d 948, 950 (1993); Biggers v. Biggers, 103 Idaho 550, 555, 650 P.2d 692, 697 (1982); Moye v. Moye, 102 Idaho 170, 171, 627 P.2d 799, 800 (1981). An abuse of discretion occurs when the evidence is insufficient to support a trial court's conclusion that the interests and welfare of the children would be best served by a particular custody award or modification. McGriff v. McGriff, 140 Idaho 642, 645-646, 99 P.3d 111, 114-15 (2004). However, we do not substitute our own view of the evidence for that of the trial court, nor determine the credibility of the witnesses. Brammer v. Brammer, 93 Idaho 671, 674, 471 P.2d 58, 61 (1970). Moreover, in considering findings of fact made by the trial court, we must review the evidence in the light most favorable to the party who prevailed at trial. Pieper v. Pieper, 125 Idaho 667, 669, 873 P.2d 921, 923 (Ct.App.1994).

In determining custody, whether in the initial divorce decree or a subsequent modification, the welfare and best interest of the children are of paramount importance. Roeh v. Roeh, 113 Idaho 557, 558, 746 P.2d 1016, 1017 (Ct.App.1987); Schmitt v. Schmitt, 83 Idaho 300, 305, 362 P.2d 884, 887 (1961); Miller v. Mangus, 126 Idaho 876, 878, 893 P.2d 823, 825 (Ct.App.1995). The controlling statute, I.C. § 32-717, provides a non-exhaustive list of factors for the trial court to consider in making this determination. Included in that list are: the wishes of the child; the wishes of the parents; the interaction of the child with the parents and siblings; the child's adjustment to his or her home, school and community; the mental and physical health and integrity of all individuals involved; the need to promote continuity and stability in the life of the child; and the presence of domestic violence. I.C. § 32-717(1)(a)-(g). See Dymitro v. Dymitro, 129 Idaho 527, 529, 927 P.2d 917, 919 (Ct.App. 1996). Although the court "shall consider all relevant factors," I.C. § 32-717, the trial court must avoid considering irrelevant factors, Roeh, 113 Idaho at 558, 746 P.2d at 1017, and avoid assigning too much weight to any particular factor, Moye, 102 Idaho at 172, 627 P.2d at 801.

A. Modification of Physical Custody

The first issue on this appeal is whether the magistrate court...