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Firmage v. Snow

Supreme Court of Idaho

February 26, 2015

HILARY BETH CANDLAND FIRMAGE fka HILARY SNOW, Plaintiff-Respondent,
v.
HOWARD HUNTER SNOW, Defendant-Appellant.

2015 Opinion No. 24

Appeal from the Magistrate Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Russell A. Comstock, Magistrate Judge.

The custody modification order of the magistrate court is affirmed.

Howard Hunter Snow, appellant pro se argued.

Ludwig Shoufler Miller Johnson LLP, Boise, for respondent. Daniel A. Miller argued.

J. JONES, Justice

This case was brought before the magistrate court as a request for modification of the child custody arrangement of the parties' four children, in which Hilary Firmage sought sole custody and permission to relocate. The parties orally stipulated to resolve the custody matter in favor of the future recommendations that would result from a child custody evaluation that was ongoing at that time. When the evaluation was made available, the magistrate court ordered a custody modification conforming to the evaluator's recommendations. Snow appealed the modification order. Following argument, we temporarily remanded the case to the trial court to issue specific written findings and conclusions as to the best interests of the children in this case. Such written findings and conclusions have been furnished for the record and the parties have had the opportunity to supplement their briefing with regard to the same. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Ms. Hilary Firmage and Mr. Howard Snow were married from 1992 until 2010, when they stipulated to a divorce based on irreconcilable differences. They had four children during that time. From the time of their divorce in 2010 until January 2014, the custody arrangement was that the children spent all weekdays and the last weekend of each month with Firmage and spent the first three weekends of each month with Snow. In 2012, both parties sought modification of the custody arrangement, Snow seeking 50/50 custody and Firmage seeking sole custody and permission to relocate to Utah to live with her new husband. Trial was set for November 2013. Upon Firmage's motion, the court appointed Dr. Robert Engle to perform a child custody evaluation. At the time of the pre-trial conference, Dr. Engle had not yet finished the evaluation, and Snow went to the conference under the impression that the trial would be set to a later date because of the delay in getting the evaluation. When the matter of the custody evaluation was raised at that conference, Snow orally offered to resolve the case in favor of the forthcoming recommendations of the custody evaluator to avoid the necessity of a trial. Firmage accepted the offer. The court accepted the parties' stipulation, vacated the trial, and suggested that the parties meet following the release of the custody evaluation to work out any details not addressed in that evaluation. The court also stated that the parties would have a conference with the court following release of the recommendations where the court would make a record of the stipulation and enter an order on the custody issues.

Dr. Engle's completed report recommended, among several other things, that: (1) Firmage be permitted to relocate to Utah with the three youngest children, of which she was to have sole legal custody; (2) Snow was to have sole legal custody of the oldest child;[1] and (3) for the first year of the arrangement, Snow's contact with the three youngest children would consist of approximately six weeks of the year when they would stay with Snow and weekly thirty-minute phone calls with the children, which were to be recorded to ensure no disparaging remarks were made to the children about Firmage. Upon receipt of the custody evaluation, the court set a status conference, and Firmage's attorney sent Snow a copy of a proposed final order that adopted the recommendations. Snow responded to Firmage's attorney, expressing his strong disagreement with the recommendations and saying he would not go along with their stipulation to abide by those recommendations. Firmage moved the trial court for an interim order allowing her to relocate to Utah with the three youngest children, for enforcement of the pre-trial stipulation, and for entry of final judgment as per the evaluator's recommendations. At a January 27 hearing on Firmage's motion, Snow argued the recommendations were contrary to Idaho law and that the court should not enforce the pre-trial stipulation. Finding that Snow was no longer willing to abide by his stipulation and that there would be prejudice to Firmage and the children if Snow were not held to his stipulation, the magistrate court made a final order for custody modification. The court stated that the custody evaluation "I think covers all of the-considers properly the factors that support the 32-717. He's an experienced custody evaluator, and I just don't see there's a reasonable basis to allow you to rescind your agreement, Mr. Snow."

The court then vacated the status conference that had been scheduled for February. Snow moved to reconsider. In March, the trial court heard argument and denied Snow's motion to reconsider. This Court then granted Snow's motion for permissive appeal under I.A.R. 12.1. Following argument on appeal, we temporarily remanded the case to the magistrate court to issue written findings as to the best interests of the children. Having now received those findings, we affirm the magistrate court.

II.

ISSUES ON APPEAL

1. Whether the magistrate court abused its discretion in ordering the child custody modification.

2. Whether the order requiring that Snow's phone calls with his children be recorded violates his ...


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