Stonecipher v. Stonecipher, No. 23514

• Court: United States State Supreme Court of Idaho
• Writing for the Court: WALTERS; TROUT
• Citation: 963 P.2d 1168,131 Idaho 731
• Parties: Donna B. STONECIPHER, Plaintiff-Respondent-Cross-Appellant, v. Dwight STONECIPHER, Defendant-Appellant-Cross-Respondent. Lewiston, April 1998 Term
• Docket Number: No. 23514
• Decision Date: 13 August 1998

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963 P.2d 1168 131 Idaho 731 Donna B. STONECIPHER, Plaintiff-Respondent-Cross-Appellant,
v.
Dwight STONECIPHER, Defendant-Appellant-Cross-Respondent. No. 23514. Supreme Court of Idaho, Lewiston, April 1998 Term.
Aug. 13, 1998.

Page 1170

Danny J. Radakovich, Lewiston, argued, for Plaintiff-Respondent-Cross-Appellant.

Clark & Feeney, Lewiston, for Defendant-Appellant-Cross-Respondent. Charles M. Stroschein argued.

WALTERS, Justice.

The district court in its opinion and order affirmed the magistrate's determination of child support arrearages due and owing for the benefit of the parties' daughter. Dwight Stonecipher, against whom the judgment amount was entered, appealed. Donna Stonecipher cross-appealed. Following review of the issues raised by the parties, we uphold the decision of the district court affirming the magistrate's order as explained below.

FACTS AND PROCEDURAL BACKGROUND

Dwight and Donna Stonecipher were divorced by decree dated June 28, 1979. Pursuant to the terms of the decree, Dwight was ordered to pay child support in the amount of $100 per month for each of the parties' two minor children, Benjamin and Amber, who were fourteen and two years old, respectively, at the time of the divorce. The decree further provided that Dwight pay the child support to Donna through the office of the clerk of the court.

Dwight never made a payment on the court-ordered child support obligation. In March of 1995, Donna filed a motion for an order to show cause in the magistrate court for contempt and for entry of a judgment setting the amount of arrearages due from Dwight. Donna also filed a motion for modification of the child support for Amber, who was then nineteen, still living at home, and enrolled in her freshman year at college. All of these matters were set for hearing on September 12, 1995.

On the day of the scheduled hearing, Dwight filed a motion asserting that any arrearages which had accrued more than five years prior to the date of Donna's motion to show cause were barred by the statutes of limitation found in Idaho Code § 5-245, 11-101 and 10-1111. Over Donna's objections, Dwight was allowed to present testimony at the hearing despite his failure to submit an affidavit or to provide notice of his intent to offer testimony in response to the order to show cause. Donna was granted time to file a post-hearing brief addressing the statute of limitation questions raised by Dwight.

In his findings and conclusions, the magistrate ruled as a matter of law that (1) Donna had the right to bring an action to renew a judgment for child support arrearages within five years after the child reaches majority; (2) the arrearages which had accrued prior to July 1, 1982, were barred by I.C. § 5-245; (3) the limitation period had not been tolled, under I.C. § 5-229, during Dwight's continuing residence in Canada outside the State of Idaho. Applying the law to the facts, the magistrate determined that Donna could not recover child support due on behalf of Benjamin because the claim was not filed within five years of the date of his majority. As to child support due on Amber's behalf, the magistrate found that Donna was entitled to recover arrearages for sums payable from July 1, 1982. Finding insufficient evidence to substantiate monies allegedly paid by Dwight to Donna or to Amber directly, the magistrate denied the offset sought by Dwight but ordered the child support modified prospectively, as per Donna's request, in accordance with the parties' stipulation. On February 26, 1996, the magistrate entered judgment in favor of Donna for the principal amount of $15,500, plus interest in the amount of $16,431.51, with the total to bear interest at the prevailing rate until paid in full.

Both parties appealed to the district court. Dwight contested the magistrate's application of the statutes of limitation in computing the child support arrearages and the denial

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of claimed offsets. Donna listed as issues in her notice of appeal errors by the magistrate in considering Dwight's testimony at the hearing, in fixing the amount of arrearages and interest and in denying attorney fees. The district court, acting in its appellate capacity, issued its opinion and order affirming the magistrate's determination of the child support arrearages but vacated the interest award pending findings on remand in support of the interest calculations. ¹ Dwight appealed the decision of the district court, and Donna cross-appealed. The appeal proceeded, after a temporary suspension, once the magistrate issued findings supporting his interest calculations as required by the remand order. STANDARD OF REVIEW

Where the issues before the appellate court are the same as those considered by the district court sitting in an appellate capacity, the appellate court will review the trial record with due regard for, but independently from, the district court's decision. Balderson v. Balderson, 127 Idaho 48, 51, 896 P.2d 956, 959 (1995); Robinson v. Joint School District No. 331, 105 Idaho 487, 670 P.2d 894 (1983). Findings of fact supported by substantial and competent evidence, even though that evidence may be conflicting, will not be disturbed on appeal. Balderson, 127 Idaho at 51, 896 P.2d at 959. Issues of law are freely reviewed by this Court. Id. If the law has been properly applied to the facts as found, the judgment will be upheld on further appeal.

ANALYSIS

The principal issue raised by the appeal and the cross-appeal is the relevance of various statutes of limitation to the determination of Donna's action to collect child support arrearages. We begin by addressing a procedural issue raised by Donna in her cross-appeal. Donna maintains that it was error for the magistrate to hear evidence on Dwight's statute of limitation defense, which she claims was not properly raised to the court. Citing the Idaho Rules of Civil Procedure, Donna argues that Dwight did not comply with the show cause order by failing to file an affidavit and that he did not provide the required notice regarding the testimony and evidence he would present, or his intent to cross-examine Donna, at the show cause hearing.

In show cause hearings for a judgment establishing the amount of delinquent child support payments, the court, in its discretion, may determine the same upon affidavits and the file of the action. I.R.C.P. 6(c)(3) and (4). Where the trial court has exercised such discretion after a careful consideration of the relevant factual circumstances and principles of justice, we will not disturb that action. Lisher v. Krasselt, 96 Idaho 854, 857, 538 P.2d 783, 786 (1975).

Pursuant to the rules and as specified in...