Appeal from the District Court of the Seventh Judicial District of the State of Idaho, in and for Bonneville County. Hon. Steven A. Gardner, Magistrate Judge; Hon. Earl Blower, Magistrate Judge.
Order denying reconsideration of order dismissing appeal and order vacating partial judgment of divorce.
Aaron J. Woolf, Thompson, Smith, Woolf & Anderson, PLLC, Idaho Falls, for appellant.
Neal Randall, Idaho Falls, for respondent.
ORDER DENYING RECONSIDERATION AND VACATING JUDGMENT
This is an appeal by permission out of Bonneville County from an order in a divorce action modifying child custody. Because no final judgment dissolving the marriage and no judgment regarding custody had ever been entered in this action during the four-year period after the divorce trial, we dismissed the appeal because it did not qualify for an appeal by permission. After the appeal was dismissed, the magistrate court entered a partial judgment purporting to retroactively divorce the parties four years earlier and a partial judgment regarding custody and the division of property and debts. The appellant then filed a motion seeking reconsideration of the order dismissing the appeal. We deny that motion, vacate the partial judgment retroactively terminating the parties' marriage, and direct the magistrate court to enter a new partial judgment dissolving their marriage.
BACKGROUND AND ANALYSIS.
On January 23, 2009, Dalrie Arias (Plaintiff) filed this action against Hugo Arias (Defendant) to annul their marriage on the ground that at the time of their marriage on April 9, 1993, he was still married to another. During their marriage, Plaintiff and Defendant had two children, a daughter born in 1998 and a son born in 1999. Plaintiff later withdrew the claim for an annulment, and this action proceeded as one for divorce.
The trial was held on January 6, 12, and 13, 2011, before Magistrate Blower. On January 25, 2011, he entered a document that purported to be a judgment, but was not. The document was titled "Decree of Divorce Nunc Pro Tunc, " and it provided as follows:
This matter came before the court for trial on January 6, 12 and 13, 20l1. The court has heard the evidence and argument of counsel. The court has taken under advisement the issues of property and debt division and custody and visitation. However, the parties having stipulated to entry of a decree of divorce on the grounds of irreconcilable differences, at [sic] it appearing that the plaintiff is entitled to a divorce on the grounds of irreconcilable differences, and the court being fully advised in the premises;
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS follows:
1. That the plaintiff is granted a divorce from the defendant upon the grounds of irreconcilable differences, nunc pro tunc January 13, 2011, and the bonds of matrimony existing between the plaintiff and the defendant be, and the same are, hereby ...