Appeal from the District Court of the Fifth Judicial District of the State of Idaho, Gooding County. Hon. Casey Robinson, Magistrate Judge.
The opinion of the court was delivered by: W. Jones, Justice
The decision of the magistrate court as to physical and legal custody is affirmed. The decision of the magistrate court as to the award of attorneys fees is affirmed. Respondent is awarded attorneys fees and costs on appeal.
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.*fn1 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.*fn2
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.
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 ...