Appeal from the District Court of the First Judicial District of the State of Idaho, Bonner County. Hon. Debra Heise, Magistrate Judge.
The opinion of the court was delivered by: Horton, Justice
The decision of the magistrate court is affirmed.
Jeconiah Evans (Evans) and Jessica Sayler (Sayler) are the parents of two children. After their relationship dissolved in 2007, the parties agreed to a joint custody agreement, entered April 8, 2008. In late 2009, Sayler decided that she would go to college and stipulated to a modification of the custody agreement that gave Evans primary custody of the children. The magistrate court amended the custody order consistent with the stipulation. However, after moving to Washington, Sayler did not go back to school and petitioned the magistrate court for a change in the custody agreement. The magistrate judge found that Sayler's decision not to go to college at this time did not constitute a substantial, material, and permanent change that would permit the court to examine whether a change in custody was in the best interests of the children. Sayler now appeals. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Evans and Sayler are the parents of two children, aged four and five years-old. At the time of the children's birth Evans and Sayler were not married and, in late 2007, theirrelationship dissolved. On April 8, 2008, the magistrate court entered its first custody order. This custody order granted the parties joint legal and physical custody with an alternating weekly parenting schedule. At this point, both parents were living in Sandpoint, Idaho.
In late 2009, Sayler decided to go to college. She testified that Evans approached her, suggesting that he have primary custody of the children while she was in college. Sayler agreed to the proposal. As a result, the parties stipulated that Evans would have primary physical custody during the school year and the court entered a modified custody order in January 2010. Sayler testified that she was unable to attend college but moved to Newman Lake, Washington, and started to work full time. On May 3, 2010, Sayler filed a pro se motion to modify the stipulated custody order and Evans answered with a general denial. In her motion, Sayler raised the issue of Evans being sentenced to a rider,*fn1 which Evans argued was known at the time of the parties' earlier stipulation.
At mediation, the parties agreed to a visitation schedule, with the exception that they could not agree on which parent would have primary custody. Evans sent Sayler a set of interrogatories, requests for production of documents, and requests for admissions. Sayler did not respond to these within thirty days. Evans filed a notice with the court that the matters as to which an admission was requested were deemed admitted, as provided by I.R.C.P. 36(a). At trial Sayler stated that Evans had told her "that as long as I got them - got him these by [the Friday before trial] that he would put them in." Counsel for Evans stated that this was only with regard to the interrogatories and requests for production and that Sayler was on notice that her failure to respond to the requests for admissions deemed her to have admitted those facts in question. Sayler did not otherwise move to withdraw the admissions according to I.R.C.P. 36(b).
The magistrate judge deemed those facts admitted: that Sayler decided not to go to school because of this case; that Sayler intends to enroll and/or attend school when the case is completed; and that Sayler moved out of state in reliance on the stipulation. The magistrate judge found that the fact that Sayler was working full-time instead of going to school did not constitute a substantial, material, and permanent change of circumstances and found that the court did not have jurisdiction to modify the custody order.
The magistrate court entered its Order on October 5, 2010. Sayler, now represented by counsel, filed a motion for a permissive appeal and expedited hearing under I.A.R. 12.1. The magistrate judge granted leave to appeal on November 19, 2010 and this Court granted the appeal on January 3, 2011. Sayler argues that the magistrate court erred in determining that her change in plans to go to college did not constitute a substantial, material, and permanent change in circumstances.
"A divorce decree granting custody of a minor child to one of the parties may not be modified unless there has been a material, permanent and substantial change in conditions and circumstances subsequent to entry of the original decree which would indicate to the court's satisfaction that modification would be for the best interests of the child." Tomlinson v. Tomlinson, 93 Idaho 42, 47, 454 P.2d 756, 761 (1969). The party petitioning for the modification bears the burden of proving that a substantial and permanent change has occurred. Chislett v. Cox, 102 Idaho 295, 298, 629 P.2d 691, 694 (1981). "The decision whether to modify an order of child support because of a substantial and material change of circumstances is within the sound discretion of the trial court and will not be disturbed on appeal unless a manifest abuse of discretion is shown." Noble v. Fisher, 126 Idaho 885, 888, 894 P.2d 118, 121 (1995).*fn2
[I]n reviewing the trial court's exercise of discretion, this Court must consider (1) whether the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available ...