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Suter v. Biggers

Supreme Court of Idaho

November 13, 2014

EMILY E. SUTER, Petitioner-Appellant,

2014 Opinion No. 120.

Page 1272

Appeal from the District Court of the Third Judicial District, State of Idaho, Gem County. Hon. Jayme B. Sullivan, Magistrate Judge.

Order modifying custody of children, affirmed.

Bauer & French, Boise, for appellant. Margalit Ryan argued.

Law Offices of Jeffrey T. Sheehan, PLLC, Boise, for respondent. Constance Norris argued.

BURDICK, Chief Justice. Justices EISMANN, J. JONES, HORTON and WALTERS, J., Pro tem, CONCUR.


Page 1273

[157 Idaho 544] BURDICK, Chief Justice

This appeal arises from a custody dispute between Jeffrey Biggers (" Jeff" ) and Emily Suter (" Emily" ) over their two children. The trial court entered a temporary order that the boys enroll in school in Emmett, Idaho, until the conclusion of trial. After trial, the court found that it would be in the boys' best interests to remain in the Emmett area. Consistent with this finding, the court ordered that Jeff and Emily have joint physical and legal custody, that Jeff have primary custody of the boys, and that Emily have visitation rights throughout the year and over the summer break. We affirm.


Emily and Jeff married in 2000. They had two children, C.B. and B.B. (" the boys" ), ages twelve and eight at the time of this appeal. In 2011, Emily filed for divorce against Jeff, citing irreconcilable differences. Emily and Jeff signed a parenting plan less than a week later. That plan stated:

We agree that a move by either parent of more than 100 miles from Sweet, ID will make this plan impractical or unworkable. Therefore, neither parent will make such a move with a child without our mutual written agreement or a decision by the court that it is in a child's best interest to move. We agree that a new parent plan will be made if a move occurs.

On March 29, 2011, the court entered its divorce decree, which incorporated the parenting plan. Since then, Emily remarried to Clint Suter.

In May 2012, Emily filed a motion to modify her custody agreement with Jeff to allow the boys to relocate with her to Coeur d'Alene, Idaho, well outside of the 100 miles specified in the parenting plan. After trial, a Boise County magistrate denied Emily's proposal to relocate to Coeur d'Alene. The court ordered Emily and Jeff to continue to share joint legal and physical custody with

Page 1274

[157 Idaho 545] Emily as the primary physical custodian. The magistrate cited the boys' need for continuity and stability and found that it was in the boys' best interests to continue to reside in the Emmett area. In March 2013, Jeff made a motion to modify the parenting plan, alleging (1) the boys had been missing excessive amounts of school, (2) there was conflict over the visitation schedule, and (3) Emily intended to move the boys to Lewiston, Idaho. Emily answered and counterclaimed in April 2013, arguing that a modification was necessary because the parties needed a defined holiday schedule. Around this same time, venue was transferred from Boise County to Gem County. In May 2013, Jeff amended his motion to request primary physical custody, alleging Emily suddenly moved herself and the boys to McCall, Idaho.

The boys lived in the Emmett area, which is composed of the towns of Letha, Sweet, and Emmett. In summer of 2013, Emily did move the boys to McCall, approximately 77 miles from Jeff's home in Sweet. The Emmett School District denied Emily's request to enroll the boys in school while they lived in McCall, stating that " it is not reasonable to require students to commute five (5) hours per day for school." On August 21, 2013, the court entered a temporary order requiring the boys to continue attending school in the Emmett School District to maintain the status quo. In order to comply with the temporary order, Emily primarily lived with the boys in her parent's basement in Boise and transported the boys to school in Emmett daily. Between May 2013 and January 2014, the boys spent approximately seventy overnights in McCall.

Emily and her current husband, Clint, have no significant contacts in the McCall area. Emily states her family moved because (1) Clint obtained full-time work with a local ski resort and (2) the State ranked the McCall School District with an objectively better score than the Emmett School District. The boys lived in McCall with their older half-sister, their younger half-brother, Emily, and Clint. Clint has two children from another marriage that do not live with them. While in McCall for approximately two months during the summer of 2013, the boys attended a church camp, a Boy Scout camp, a library camp, and made trips to the beach.

Jeff lives in the Emmett area and regularly visits the boys at school for weekly lunches, extracurricular activities, and to act as a parent volunteer. The boys are involved in numerous activities in the Emmett area, including school, church, rodeo, 4-H, and scouts.

At trial, a Gem County magistrate judge held that a permanent move to McCall was a " material, permanent, and significant change." Neither party appealed this finding. The judge then held that, under Idaho Code section 32-717, it would be in the best interests of the boys to remain in the Emmett area. The judge stated that the boys were raised in the area, established themselves within the community, and lived near many friends and relatives. To facilitate the boys' continued contact with the Emmett area, the court designated Jeff as the primary physical custodian of the boys. The ...

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