Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge; Hon. Terry R. McDaniel, Magistrate.
The opinion of the court was delivered by: Gutierrez, Judge
Stephen W. Kenyon, Clerk.
District court's intermediate appellate decision affirming the magistrate's order modifying child support and denying petition to modify custody, affirmed in part, reversed in part, and case remanded.
Darren Drinkall appeals from the district court's intermediate appellate decision affirming the magistrate's final order modifying child support and denying Darren's request to modify custody. For the reasons set forth below, we affirm in part, reverse in part, and remand.
Darren and Kristina were married in 1995 and three children were born of the marriage. Darren and Kristina divorced in 2001. Pursuant to the December 2001 decree of divorce, Kristina was awarded "primary physical custody"*fn1 of the children, Darren was granted "visitation" and was required to pay $1,122 per month in child support. At that time both Darren and Kristina resided in Ada County, Idaho.
A few months later, the magistrate allowed Kristina to move with the children to Buhl, Idaho, located approximately one hundred miles from Ada County. In September 2002, Darren filed a petition to modify child support and the custody schedule seeking, with regard to the latter, more time with his children primarily during the summer months. By order filed on July 3, 2003, the magistrate determined, among other things, that Darren would have time with the children in Buhl for one four-hour period per week and, in Ada County, on alternating holidays, the first and third full weekends of every month, and during the summer months (June, July and August) for three nonconsecutive one-week periods to coincide with Darren's vacation from work. The magistrate further reduced Darren's child support to $954.50 per month.
In December 2007, Darren filed a pro se petition to again modify child support and the custody schedule. He sought recalculation of child support "in an amount consistent with the Idaho Child Support Guidelines," and further requested additional time with the children during the summer months. By his petition, Darren sought modification to allow the children to stay with him in Ada County for the entirety of the months of June, July, and August, with Kathleen to have the children every other weekend and for a two-week time period to be determined by the court. His reasons for this proposed modification were that since the last custody modification was entered the children were now five years older, Kristina was no longer a fulltime mother but had now begun working full-time, and he had taken a new job where he had arranged to take off the entire months of July and August from work.
At the modification hearing, Kristina argued that for child support purposes, her income should be set at $38,000 per year and that Darren's income should be set at $63,200, representing his current $50,000 salary and $13,200 per year anticipated rental income from a woman that lived with him. The magistrate set Kristina's income at $38,000 per year and specifically stated that he would not include as part of her gross income a $1,000 bonus she received earlier in 2008 because Darren had failed to produce any evidence that was a payment that Kristina could expect on a consistent basis in the future. The magistrate set Darren's income at $63,200, specifically ruling that Darren was receiving $1,100 per month in rental income and that Darren's testimony that the woman currently paying rent was in the process of moving out lacked credibility. With respect to the custody issue, the magistrate held that Darren had failed to establish that a material change in circumstances had occurred from those in existence at the time of the most recent custody order and that Darren had failed to produce any evidence that his proposed change in the summer visitation schedule was in the best interests of the children.
Darren appealed to the district court. The district court affirmed, indicating that to the extent Darren presented issues preserved for appeal, he merely invited the district court to second guess the magistrate on issues of fact. As a result and pursuant to her request, the district court awarded Kristina Idaho Code Section 12-121 attorney fees, finding that the appeal was brought unreasonably and without foundation. Darren appeals to this Court from the district court's intermediate appellate decision.
When reviewing a decision of the district court acting in its appellate capacity, this Court directly reviews the district court's decision. Mackowiak v. Harris, 146 Idaho 864, 865, 204 P.3d 504, 505 (2009). If substantial and competent evidence supports the magistrate's findings of fact, and the magistrate's conclusions of law follow from those findings, and if the district court affirms the magistrate, we affirm the district court's decision as a matter of procedure. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008).
The decision of the trial court on a motion to modify child support or custody is reviewed on appeal for an abuse of discretion. Danti v. Danti, 146 Idaho 929, 934, 204 P.3d 1140, 1145 (2009); Hopper v. Hopper, 144 Idaho 624, 626, 167 P.3d 761, 763 (2007); Noble v. Fisher, 126 Idaho 885, 888, 894 P.2d 118, 121 (1995); Kornfield v. Kornfield, 134 Idaho 383, 385, 3 P.3d 61, 63 (Ct. App. 2000); Atkinson v. Atkinson, 124 Idaho 23, 25, 855 P.2d 484, 486 (Ct. App. 1993). In matters of discretion, we examine (1) whether the trial court correctly perceived this issue as one of discretion; (2) whether the trial court acted within the outer boundaries of its discretion and consistently with the applicable legal standards; and (3) whether the trial court reached its decision by an exercise of reason. Hopper, 144 Idaho at 626, 167 P.3d at 763; Sun Valley Shopping Center, Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991). An abuse of discretion will be found if the magistrate failed to give consideration to relevant factual circumstances, Rohr v. Rohr, 128 Idaho 137, 141, 911 P.2d 133, 137 (1996); Yost v. Yost, 112 Idaho 677, 680, 735 P.2d 988, 991 (1987); Margairaz v. Siegel, 137 Idaho 556, 558, 50 P.3d 1051, 1053 (Ct. App. 2002), or if the magistrate's findings are not supported by the evidence. Biggers v. Biggers, 103 Idaho 550, 555, 650 P.2d 692, 697 (1982); Rohr v. Rohr, 126 Idaho 1, 3, 878 P.2d 175, 177 (Ct. App. 1994).
The party seeking custody modification has the burden of justifying a request for a change in custody. Brownson v. Allen, 134 Idaho 60, 63, 995 P.2d 830, 833 (2000). In determining whether to grant a custody modification, "the ...