KRISSY M. LAMONT, Plaintiff-Respondent,
MATTHEW J. LAMONT, Defendant-Appellant
2015 Opinion No. 41.
Appeal from the Magistrate Court of the Seventh Judicial District of the State of Idaho, Lemhi County. Hon. Stephen J. Clark, Magistrate Judge.
The order of the magistrate court is affirmed. Attorney's fees and costs on appeal to respondent.
Law Office of Joshua A. Garner, PLLC, Rexburg, attorneys for appellant. Joshua A. Garner argued.
Snook Law Office, Salmon, and Brady Law, Chtd., Boise, attorneys for respondent. Chip D. Giles argued.
W. JONES, Justice. Chief Justice BURDICK, Justices EISMANN, J. JONES and HORTON, CONCUR.
W. JONES, Justice
I. Nature of the Case
This expedited, permissive appeal presents a child custody dispute. Appellant Matthew Lamont and Respondent Krissy Lamont were married and have two minor children. After the divorce, Krissy was granted primary physical custody of the children, and until recently Krissy and Matthew resided in Salmon, Idaho. In June of 2014, however, Matthew learned that Krissy planned to relocate with the children to Meridian, Idaho. He filed a petition in magistrate court to modify the divorce decree to obtain primary physical custody of the children. Krissy filed a cross-petition to relocate the children to Meridian. After a hearing, the magistrate court denied Matthew's motion and granted Krissy's motion. Matthew appeals to this Court. We affirm.
II. Factual and Procedural Background
On May 29, 2009, Krissy and Matthew divorced. Krissy and Matthew have two minor children: T.L. and M.L., who were thirteen years old and eleven years old, respectively, at the time of the magistrate court's decision. Krissy was granted primary physical custody of the children after the divorce, and Matthew had visitation consisting of six overnights every other week and " a two week block" in the summer. Under this visitation schedule, the children spent approximately sixty percent of their time with Krissy and forty percent of their time with Matthew. The visitation schedule was based on Krissy and Matthew both residing in the Salmon area.
On June 18, 2014, Matthew filed a petition for modification of the child custody order. Matthew alleged that Krissy intended to relocate the children from Salmon. He requested that the magistrate court grant him primary physical custody of the children. On June 27, 2014, Krissy answered and filed a counter-petition for modification, seeking to relocate the children from Salmon to Meridian and to modify Matthew's visitation schedule based on the relocation. On August 13, 2014, the magistrate court held a hearing on Krissy's and Matthew's motions to modify child custody wherein both parties presented evidence.
On August 28, 2014, the magistrate court issued its findings of fact and conclusions of law. Ultimately, the magistrate court concluded that it was in the best interests of the children to allow the relocation. The magistrate court granted Krissy's motion to relocate and denied Matthew's motion. The magistrate court ordered that Matthew was entitled to visitation at least once a month for a minimum of three days. The magistrate court explained that the visits would occur on extended holidays or school breaks, and the magistrate court outlined the specific dates in its decision. If there was no holiday or break that month, the magistrate court ordered that the visit would begin on Thursday evening and end at noon on Sunday. The magistrate court recognized: " [T]he scheme would mean that the children would miss a day of school. But the alternative is a series of weekend visits where 10 hours of each visit would be eaten up by transportation." The magistrate court also ordered that Matthew would have the children in the summer, starting two weeks after school ended until
two weeks before school started. On August 28, 2014, the magistrate court issued an order granting Krissy's motion.
Matthew filed a motion for a permissive appeal pursuant to Idaho Appellate Rule (I.A.R.) 12.1. On September 26, 2014, the magistrate court denied Matthew's motion. On November 7, 2014, the Court granted Matthew's request for a permissive appeal and expedited the appeal.
III. Issues on Appeal
1. Whether the magistrate court abused its discretion by denying Matthew's motion for primary physical custody and allowing Krissy to relocate with the children.2. Whether either party is entitled to attorney's fees on appeal.
IV. Standard of Review
This is a permissive appeal under [I.A.R.] 12.1, and as such, the Court reviews the magistrate judge's decision without the benefit of a district court appellate decision. Roberts v. Roberts, 138 Idaho 401, 403, 64 P.3d 327, 329 (2003). A trial court's child custody decision will not be overturned absent an abuse of discretion. Id. A trial court does not abuse its discretion as long as the court " recognizes the issue as one of discretion, acts within the outer limits of its discretion and consistently with the legal standards applicable to the available choices, and reaches its decision through an exercise of reason." Id. When the trial court's decisions affect children, the best interests of the child is the primary consideration. Id. at 403-04, 64 P.3d at 329-30.
Suter v. Biggers, 157 Idaho 542, 54554246, 337 P.3d 1271, 1274-75 (2014).
" An abuse of discretion occurs when the evidence is insufficient to support a magistrate's conclusion that the interests and welfare of the children would be best served by a particular custody award or modification." Nelson v. Nelson, 144 Idaho 710, 713, 170 P.3d 375, 378 (2007). When reviewing the magistrate court's findings of fact, this Court " will not set aside the findings on appeal unless they are clearly erroneous such that they are not based upon substantial and competent evidence." Id. Even if the evidence is conflicting, findings of fact based on substantial evidence will not be overturned on appeal. Id.
Peterson v. Peterson, 153 Idaho 318, 320-21, 281 P.3d 1096, 1098-99 (2012) (citation omitted).
A. The magistrate court had substantial and competent evidence to support its findings of fact.
Matthew challenges four factual findings by the magistrate court as lacking substantial and competent evidence. We hold that the magistrate court had substantial and competent evidence for its findings of fact.
1. The children's preference to live with Krissy
First, Matthew challenges the magistrate court's findings on the wishes of the children. The magistrate court found: " the interview with [Ann Just of Family Court Services] shows the children to be struggling with the issue of where to live. They are however united in desiring to live primarily with their mother with frequent visitation with Mr. Lamont." Based on our review of Just's report, the magistrate court's findings are supported by substantial and competent evidence. More importantly, the magistrate court's written and oral statements show that the magistrate court did not perceive its finding on the children's wishes as an unequivocal factor in favor of relocation. The magistrate court found that the children were " struggling with the issue of where to live." Further, the magistrate court stated at the hearing that it did not see the children's desire to live with Krissy " as a 'yes' or no,'" but rather " sort of somewhere in the gray, on a continuum." The magistrate ...