Woods v. Sanders

• Decision Date: 26 November 2010
• Docket Number: No. 37483.,37483.
• Citation: 244 P.3d 197,150 Idaho 53
• Court: Idaho Supreme Court
• Parties: Michael Alan WOODS, Plaintiff–Respondent, v. Susan Anne SANDERS, Defendant–Appellant.

150 Idaho 53

244 P.3d 197

Michael Alan WOODS, Plaintiff–Respondent,

v.Susan Anne SANDERS, Defendant–Appellant.

No. 37483.

Supreme Court of Idaho, Boise, September 2010 Term.

Nov. 26, 2010.

Susan Anne Sanders Pollack, Broomfield, Colorado, appellant, pro se.

Capitol Law Group, PLLC, Gooding, for respondent. David Heida argued.

W. JONES, Justice.

I. NATURE OF THE CASE

This case involves a custody dispute over a minor child. Pro se Appellant Susan Sanders appeals directly to the Supreme Court from a custody-modification order entered by the magistrate court in which Michael Woods was awarded full custody of their son C.W. She also appeals the award of attorney fees to Woods.

II. FACTUAL AND PROCEDURAL BACKGROUND

C.W. was born to Susan Sanders and Michael Woods in September 2005 in Davenport, Iowa. C.W. has resided in Gooding County, Idaho, since October 15, 2005. He lived with Sanders upon initial relocation to Idaho, and during that time Sanders prohibited Woods from visitation with the child. On April 27, 2006, the Gooding County Magistrate Court entered a custody order to allow Woods visitation with C.W., and subsequently awarded Sanders and Woods joint physical and legal custody of C.W. on September 19, 2006. Following the joint custody order, Woods and Sanders lived together at various times, but eventually moved to separate residences. C.W. has been living with Woods full time since about March of 2008.¹ On June 4, 2008, Magistrate Judge Casey Robinson voluntarily disqualified himself from a separate case regarding an investigation of Woods by Children and Family Services. That investigation of Woods' home in July 2008 found that C.W. was in good health and well-adjusted, and found no evidence of neglect on Woods' part.

Woods filed a Motion to Modify Child Custody and a supporting affidavit on February 4, 2009, seeking sole physical and legal custody of C.W. He argued that circumstances had permanently and materially changed since the joint custody order was entered in 2006. Woods was granted temporary custody of C.W. pending the final decision of the court. Sanders filed her answer to the Motion to Modify Child Custody along with an affidavit on February 24, 2009. She alleged that C.W. wished to live with her and that C.W. often came back from visitations with Woods "not potty trained" and wearing improper clothes for the weather. An order setting the pre-trial conference date for February 3, 2010 and setting the trial date for March 3, 2010 was sent to both parties on December 10, 2009, but Sanders failed to appear at either the pre-trial conference or the trial itself. Sanders filed a pre-trial memorandum, but it was stricken by the magistrate court for failure to comply with procedural rules.²

At trial, Woods testified on his own behalf, confirming the statements in his affidavit that C.W. had lived in Gooding County virtually his entire life and that at the time of the trial he had resided with Woods for over a year. During the trial, Sanders was living in Colorado with her current husband, Jeff Pollack. Woods also testified that during the year before the trial, Sanders had missed fifty-seven of her scheduled eighty-two visitations with C.W. Sanders did not appear at trial and therefore presented no conflicting evidence other than what was previously alleged in her affidavit filed with the Answer. Following the trial, the magistrate found that the presumption of joint custody had been overcome by the evidence presented in Woods' testimony and in the record, and that awarding sole physical and legal custody of C.W. to Woods was in the best interest of C.W. The magistrate also found that Woods was entitled to an award of attorney fees and costs under I.C. § 12–121 because Sanders had acted unreasonably in defending the motion. Sanders filed a Motion for Expedited Appeal from the Modification Order, which was granted by this Court, followed by a timely Notice of Appeal.

III. ISSUES ON APPEAL

1. Whether Sanders waived all issues on appeal by failing to properly preserve them below and failing to provide proper support for them in her brief.

2. Whether the magistrate court abused its discretion by granting the modification of child custody, awarding sole physical and legal custody to Woods.

3. Whether the magistrate court abused its discretion by awarding attorney fees to Woods.

4. Whether Woods is entitled to attorney fees on appeal.

IV. STANDARD OF REVIEW

Child-custody determinations are committed to the sound discretion of the magistrate. Danti v. Danti, 146 Idaho 929, 934, 204 P.3d 1140, 1145 (2009). The party seeking modification has the burden of justifying a change in custody. Brownson v. Allen, 134 Idaho 60, 63, 995 P.2d 830, 833 (2000). In determining whether to grant the modification, "the paramount concern is the best interest of the child." Id. (citations omitted). The determination of the magistrate will not be disturbed unless the magistrate court has abused its discretion. Id. The magistrate court abuses its discretion only if it makes a custody award based on evidence that is insufficient to conclude that the award is in the child's best interest. Nelson v. Nelson, 144 Idaho 710, 713, 170 P.3d 375, 378 (2007).

A custody award will not be deemed an abuse of discretion so long as the magistrate court "(1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the choices before it; and (3) reached its decision by an exercise of reason." Hopper v. Hopper, 144 Idaho 624, 626, 167 P.3d 761, 763 (2007) (citations omitted). Thus, the magistrate's findings will be upheld if they are supported by substantial and competent evidence and are not clearly erroneous. Reed v. Reed, 137 Idaho 53, 56, 44 P.3d 1108, 1111 (2002). So long as there was substantial evidence to support the magistrate's factual determinations, this Court will uphold those determinations even if there was conflicting evidence. Nelson, 144 Idaho at 713, 170 P.3d at 378.

V. ANALYSIS

Pro se litigants are not accorded any special consideration simply because they choose to represent themselves, and "are not excused from adhering to procedural rules." Sammis v. Magnetek, Inc., 130 Idaho 342, 346, 941 P.2d 314, 318 (1997). Rather, "pro se litigants are held to the same standards and rules as those represented by an attorney." Twin Falls Cnty. v. Coates, 139 Idaho 442, 445, 80 P.3d 1043, 1046 (2003). Therefore, Sanders is not excused from adhering to the rules regarding proper preservation of issues for appeal and proper presentation of arguments in the brief, and this Court analyzes the issues by the same standards applied to an attorney.

A. This Court Declines to Review All Issues Because Sanders Failed to Properly Support Them in Her Brief and Failed to Properly Preserve Them Below.

This Court has long held that "[s]ubstantive issues will not be considered the first time on appeal." Crowley v. Critchfield, 145 Idaho 509, 512, 181 P.3d 435, 438 (2007). Therefore, "[a] litigant may not remain silent as to claimed error during a trial and later urge his objections thereto for the first time on appeal." Hoppe v. McDonald, 103 Idaho 33, 35, 644 P.2d 355, 357 (1982). "A party's failure to object to action by the trial court precludes a party from challenging that action on appeal." Mackowiak v. Harris, 146 Idaho 864, 866, 204 P.3d 504, 506 (2009). As a result, this Court will not consider any issue on appeal that Sanders did not raise below. Because Sanders failed to appear at the trial to present any objections, she is precluded from raising any issues on appeal. See Michalk v. Michalk, 148 Idaho 224, 230, 220 P.3d 580, 586 (2009) (holding that "very few, if any" of the appellant's arguments could be considered on appeal because the appellant, though present at trial, remained silent throughout the proceedings). Further, under I.A.R. 35(a)(6), the argument section of the brief must contain "citations to the authorities, statutes and parts of the transcript and record relied upon." I.A.R. 35(a)(6). Because Sanders' brief fails to comply with these standards, the Court declines to review her arguments.

1. The Court Declines to Review Sanders' Argument That Woods Is a "habitual domestic violence abuser. "

Sanders argues that Woods is a "habitual domestic violence abuser" and therefore the presumption that joint custody is in the child's best interest, under I.C. § 32–717B(4),³ was overcome by I.C. § 32–717B(5),⁴ and she should have been awarded full custody of C.W. Under I.A.R. 35(a)(6), an issue raised on appeal that is not supported in the brief by propositions of law or authority is deemed waived and will not be considered by this Court. Wheeler v. Idaho Dep't of Health & Welfare, 147 Idaho 257, 266, 207 P.3d 988, 997 (2009). Sanders has not sufficiently supported her argument, and therefore it is waived and this Court declines to review it.

The only facts Sanders cites to support her contention that Woods engaged in domestic violence are those alleged by Sanders within the brief itself, those contained in documents appended to the brief, and those alleged in Sanders' affidavit attached to her answer. Conclusory allegations and assertions of fact contained in the brief without citation to the record below are not sufficient to support an argument on appeal. Id. Therefore, Sanders' argument that "Appellant's brief clearly shows that the Respondent is a ‘habitual [sic] Domestic Violence’ Perpetrator," does not meet the standard of I.A.R. 35(a)(6). Similarly, documents merely appended to the brief that are not otherwise contained in the record may not be relied upon to support an argument on appeal. Nelson, 144 Idaho at 714, 170 P.3d at 379. Therefore, neither Sanders' "Exhibit A" attached to her brief, containing letters written from her neighbor and counselor, nor the facts Sanders asserts within the text of the brief without any citation to the...