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Jessica Lynn De Geus v. Edward Klass De Geus

February 22, 2013

JESSICA LYNN DE GEUS,
PLAINTIFF-RESPONDENT,
v.
EDWARD KLASS DE GEUS, DEFENDANT-APPELLANT.



Appeal from the District Court of the Third Judicial District, State of Idaho, Owyhee County. Hon. Susan E. Wiebe, District Judge. Hon. Dan Grober, Magistrate.

2013 Opinion No. 13

Stephen W. Kenyon, Clerk

Decision by district court on appeal, upholding magistrate's denial of motion to correct judgment, affirmed.

This case involves a motion under Idaho Rule of Civil Procedure 60(a) to correct a judgment entered in the magistrate division of the district court. The magistrate denied the motion. The magistrate's order was upheld on appeal to the district court. We likewise affirm the order denying the motion.

I. BACKGROUND

The record shows that the parties were granted a judgment and decree of divorce in the magistrate division of the district court on October 5, 2007. The judgment was by stipulation and contained an order for appellant herein to pay child support to the respondent for the parties' two children. The judgment assigned the tax exemptions to the respondent, reciting that "[s]aid exemptions have been factored into the monthly child support obligation, attached as Exhibit 1." That exhibit consisted of an Idaho Child Support Worksheet which contains a "Tax Exemption Compensation" amount subtracted from appellant's overall child support obligation to offset the award of the tax exemption to the respondent. The total monthly support amount thus calculated was $351. Subsequent to the entry of the judgment, respondent timely filed a motion, accompanied by an affidavit, to amend the judgment or, in the alternative, to reconsider the judgment. Respondent asserted that her income had been mistakenly overstated in the calculation of child support which was recited in the judgment and decree of divorce. She requested that the appellant's support obligation be awarded in the recalculated amount of $612 per month, an increase of $261 from the amount set forth in the original stipulated judgment and decree of divorce.

The respondent's motion was heard by the magistrate on November 5, 2007. Appellant received proper notice but did not appear at the hearing, nor did he file any objection or response to the motion. The magistrate granted the motion to amend and entered an amended judgment requiring appellant to pay $612 per month as child support. The amended judgment awarded the tax exemptions to the respondent, reciting that "[s]aid exemptions have been factored into the monthly child support obligation, attached as Exhibit 1." Exhibit 1 consisted of an Idaho Child Support Worksheet which showed a "Tax Exemption Compensation" amount of $120.78 added to appellant's overall child support obligation.

In August 2011, nearly four years after the entry of the amended judgment and decree, appellant, through counsel, filed a motion under I.R.C.P. 60(a) to correct the amended judgment.*fn1 The motion asserted that the child support order contained in the amended judgment did not show an offset against his overall monthly child support obligation for the award of the tax exemptions to respondent.*fn2 He claimed that the error in the calculation of the child support in the amended judgment was a clerical error subject to correction under I.R.C.P. 60(a).

Appellant's Rule 60(a) motion was heard by the magistrate on September 14, 2011. Appellant did not file a supporting affidavit for the motion nor did he appear in person and testify or offer any other testimony at the hearing on the motion to correct clerical error which would support his request for relief. Appellant was represented by counsel at the hearing, who argued that his motion relied solely on the "face" of the amended judgment and its child support attachments as a basis for the relief sought. After oral argument, the magistrate denied appellant's motion, reciting in the denial order that appellant had "filed his Motion to Correct Clerical Error without a supporting affidavit and offered no testimony in support thereof."

Appellant appealed the magistrate's decision to the district court. The district court affirmed the decision of the magistrate. This appeal ensued.

II. ISSUES

Appellant raises two issues. First, he argues that the magistrate erred by determining that evidence in the nature of affidavits or live testimony was necessary in order to grant appellant's motion to correct a clerical error and also erred by holding that the absence of such evidence would serve as a basis for denial of appellant's motion. Second, he contends that the magistrate erred by denying his Rule 60(a) motion because the alleged error in the assignment of tax exemptions in the calculation of the child support obligation was apparent on the face of the record. As a third issue in this appeal, respondent has requested an award of attorney fees for defending the appeal, pursuant to Idaho Code § 12-121 and Idaho Appellate Rule 41.

III. ANALYSIS

On review of a decision of the district court, rendered in its appellate capacity, we review the decision of the district court directly. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008); State v. DeWitt, 145 Idaho 709, 711, 184 P.3d 215, 217 (Ct. App. 2008). If we conclude that there is no error in the magistrate's determination, and if the district court affirmed the magistrate's decision, we affirm the district court's ...


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