IN THE MATTER OF THE GUARDIANSHIP OF JANE DOE AND JANE DOE I. ANDY BOND and RONNA BOND, husband and wife, Petitioners-Appellants,
AMBER ROUND, Respondent
2014 Opinion No. 136
Appeal from the District Court of the Fourth Judicial District of the State of Idaho, in and for Ada County. Hon. Michael McLaughlin, District Judge; Hon. Roger E. Cockerille, Magistrate Judge.
The decision of the district court is affirmed in part and reversed in part.
Derek A. Pica, Boise, argued for appellants.
Joshua A. Townsend, Sr., Arkoosh Law Offices, Boise, argued for respondent.
EISMANN, Justice. Chief Justice BURDICK, Justices J. JONES, HORTON and Senior Justice Pro Tem WALTERS CONCUR.
This is an appeal by guardians out of Ada County from a decision of the district court affirming an order of the magistrate court granting a mother visitation with her children who are under guardianship and affirming the magistrate court's sua sponte denial of attorney fees to both parties without a hearing. We agree that the magistrate court did not err in granting the mother visitation with her children, but on different grounds
than asserted by the district court, and we reverse the district court's decision that the magistrate court did not err in denying an award of attorney fees sua sponte without the opportunity for a hearing.
On September 15, 2009, Andy and Ronna Bond filed this action to be appointed guardians of two children who were at that time two and eight years of age. The older child had lived with the Bonds off and on for the first six years of her life, and both children had lived with them exclusively since June 2007. The Bonds (Guardians) were initially appointed temporary guardians of the children. Amber Round (Mother) is the mother of the children. She was initially represented by counsel, but he was permitted to withdraw and she did not file a timely notice of how she would proceed. Her default was entered on March 17, 2010, and she filed a motion to set aside the default on the same day. The following day, she also filed a notice of appearance, informing the magistrate court that she would be representing herself. She claimed that she had moved and did not receive notice of her attorney's withdrawal.
On March 25, 2010, the magistrate court held a hearing on Mother's motion to set aside the default. The court found, considering the evidence presented and Mother's credibility and demeanor, that service was properly made upon her. It therefore denied her motion to set aside the default.
On April 8, 2010, the magistrate court appointed the Guardians upon the ground that Mother and Ty Round, the children's father (Father), were unable to provide the children with a stable home environment. Father and Mother were later divorced on November 15, 2010.
Mother appealed to the district court. On May 18, 2010, she filed in the district court a petition to terminate the guardianship and a motion to allow for visitation. These motions were apparently transferred to the magistrate division of the district court.
On December 30, 2010, the district court affirmed the magistrate court's denial of the motion to set aside the default and its appointment of Guardians. The district court awarded Guardians $7,965.00 as attorney fees on the ground that the appeal was frivolous.
Mother's motion to terminate the guardianship was set for trial to commence on January 11, 2011, in the magistrate court, but prior to that date she had been sentenced to a minimum of two years in prison, with the district court retaining jurisdiction to consider suspending the sentence and placing her on probation after completion of a rehabilitation program in prison. During the pendency of the guardianship, Mother struggled with addiction to methamphetamine and committed felony and misdemeanor offenses. As a result of Mother's incarceration, the petition was dismissed without prejudice on March 1, 2011. The magistrate court awarded Guardians court costs and attorney fees totaling $35,521.25.
Mother was released from prison in July. On December 8, 2011, Mother again filed a petition to terminate the guardianship. She also filed a motion seeking visitation with her children from 5:00 p.m. on Friday until 5:00
p.m. on Sunday pending the final outcome of her petition to terminate and a shared holiday schedule where she could spend meaningful time with her children during Christmas vacation. The magistrate court later denied that motion on January 25, 2012, but the order doing so is not in the record on appeal.
On December 13, 2011, Guardians filed a motion seeking to stay all proceedings until Mother paid the court costs and attorney fees previously awarded against her. That motion was heard on January 27, 2012, and the magistrate court orally denied the motion at the conclusion of the hearing. The court also entered an order denying the motion, but that order is not in the appellate record.
Trial was scheduled to commence on April 12, 2012, but on that date Guardians raised the issue that Father was an indispensable party. The magistrate court agreed, and the matter was postponed so that he could be served. The trial was reset for August 16, 2012, but on that date the guardian ad litem pointed out that Father had not ...