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Doe v. Doe

Supreme Court of Idaho

November 2, 2016

JANE DOE I (2016-7), Plaintiff-Respondent-Cross-Appellant,
JOHN DOE I, Defendant-Appellant-Cross-Respondent, JOHN DOE II and JANE DOE II, husband and wife, Petitioners-Intervenors,
JANE DOE I and JOHN DOE I, Defendants.

         2016 Opinion No. 121

         Appeal from the District Court of the Seventh Judicial District, State of Idaho, Madison County. Hon. Eric S. Hunn, Magistrate Judge.

         Magistrate decision on custody arrangement, reversed and remanded.

          Thompson, Smith, Woolf, Anderson, Wilkinson & Birch, PLLC and Zachary D. Lords, Idaho Falls, for appellant John Doe I. Aaron J. Woolf argued.

          Hopkins, Roden, Crockett, Hansen & Hoopes, PLLC, Idaho Falls, for respondent. Paul B. Rippel argued.

          Beard, St. Clair, Gaffney, PA, Idaho Falls for intervenor.

          BURDICK, Justice


         John Doe (Father) appeals the Madison County magistrate court's First Amended Judgment and Order Modifying Prior Court Orders, which modified the custody arrangement between Father and Jane Doe (Mother) that was outlined in the court's Judgment and Order Modifying Prior Court Orders. Father argues that the magistrate court abused its discretion when it modified the custody schedule three separate times despite the fact that no evidentiary hearing was held and the court's prior findings of fact and conclusions of law remained unchanged. Mother cross-appeals, arguing that the magistrate court erred as a matter of law in the findings of fact and conclusions of law it entered in relation to the Order Modifying Prior Court Orders. We reverse the magistrate court's change of custody in its Order Modifying Prior Court Orders.


         Father and Mother are the parents of five minor children, namely, A.O., E.O., R.O., P.O., and D.O. Father and Mother were divorced on June 3, 2011. The divorce decree resolved all of the custody and visitation issues between the parties with the exception of (a) custody and visitation during the school year and (b) visitation with D.O.

         These issues were tried to the magistrate on March 5, 2013. After trial, the magistrate court entered its findings of fact and conclusions of law and issued an Order Regarding Custody, Visitation, and Child Support and Judgment (First Custody Order) on March 18, 2014. The First Custody Order awarded Mother primary custody of the parties' five minor children during the school year subject to Father's reasonable visitation. Father's visitation rights included visitation from after school on Fridays until school commences Monday mornings on the first, third, and fifth week of every month, as well as one evening of visitation during the school week.

         Shortly after the March 5, 2013 trial, Mother began investigating a move for her and the children to Idaho Falls. Mother informed the children of the potential move and took the children to Idaho Falls to allow them to pick out the school they would like to attend. This took place before the 2012-13 school year had expired.

         Father became concerned that Mother and the children might attempt to move to Idaho Falls and instructed his attorney to send a letter to Mother. Father's attorney sent a letter to Mother on July 3, 2013, which stated Father's objection to the move. Neither Mother nor her attorney responded to the letter.

         Mother notified Father of the move to Idaho Falls on August 12, 2013, which was two days before it was to take place. Upon learning of the move, Father sought an Ex Parte Order to stop Mother from moving to Idaho Falls with the children. On August 13, 2013, the magistrate entered its Ex Parte Order, which ordered that the children attend the 2013-14 school year at their respective schools in Rexburg, and that the children continue to reside in Rexburg. The court set the matter for a hearing on September 3, 2013 to determine whether the order should continue or be vacated.

         On August 14, 2013, Mother moved with the children from Rexburg to Idaho Falls. When Father learned that Mother was still attempting to move the children to Idaho Falls, he instructed his attorney to send a letter to Mother's attorney with a copy of the Ex Parte Order on August 14, 2013, which his attorney did. Additionally, Father spoke with Mother on August 14, 2013, and Mother informed him that she was aware of the Ex Parte Order from speaking with her attorney. On August 21, 2013, Father filed a Motion for Contempt with the magistrate court against Mother for allegedly violating the court's Ex Parte Order. During this time, Mother engaged in a group text message with A.O., E.O., P.O., and R.O., wherein Mother told the children, in response to being notified that Father was registering them for school in Rexburg, that they "certainly don't have to go, " and "that's pretty lame he won't listen to you kids."

         The magistrate court held a hearing on the Ex Parte Order on September 3, 2013, after which the court required the children to return to Rexburg and to attend school in Rexburg. After the hearing, Mother told all of the children what the court had ordered, which made the children angry with the court and with Father. The children told Mother that they wanted to plead with Father to allow them to stay in Idaho Falls, which Mother encouraged them to do. The children were extremely angry with Father when he insisted that the court's orders be followed. Approximately three weeks after the hearing on the Ex Parte Order, Mother and the children moved back to Rexburg. After the move, Father's relationship with the children, and in particular the two eldest, was strained. It took approximately two months for Father to mend the relationships with the younger children, but Father's relationship with the two oldest children continues to be damaged.

         On April 16, 2014, Father filed a Counterpetition to Modify Prior Court Orders, which was modified on August 22, 2014, wherein he sought an award of primary physical custody of the parties' children. However, apparently Father was conscious of the fact that the two oldest children would probably not agree to live with him even if he was awarded custody. Thus, Father sought an order which would require the two oldest children to attend counseling, and eventually, Father hoped that they would reside primarily with him. Mother filed a reply on September 16, 2014, asserting that Father should not be granted the requested change in physical custody. The issues related to Father's Amended Counterpetition went to trial on July 15, 2015.[1]

         Meanwhile, E.O.'s relationship with Father became non-existent in the fall of 2014, which was when Father submitted discovery requests to Mother; Father had settlement discussions with Mother in the park, which Mother told A.O. and E.O. about; and Father filed an affidavit in support of the grandparents' motion to intervene in this case. A.O.'s relationship with Father also worsened in the fall of 2014, but not to the same extent as E.O.'s relationship with him.

         The magistrate issued its Findings of Fact and Conclusions of Law on September 1, 2015, where it concluded that Father would have primary physical custody of the parties' three youngest children, while Mother would have primary physical custody of the two eldest children. In so holding, the court found that Mother had engaged in alienating behavior through her actions related to, among other things: the move to Idaho Falls; discussions with the two eldest children about court proceedings; and allowing E.O. to indoctrinate her younger siblings on religious beliefs. However, in the Findings of Fact and Conclusions of Law, the court also determined that Mother was not in contempt of its Ex Parte Order entered on August 13, 2013. The magistrate entered a Judgment and Order Modifying Prior Court Orders (Second Custody Order) on September 15, 2015, which reflected these changes in the custody arrangement.

         On September 29, 2015, Mother filed a motion to reconsider, arguing that the Findings of Fact and Conclusions of Law and resulting Judgment were inconsistent with the evidence and did not follow applicable law. Mother's Motion to Reconsider was heard on November 25, 2015. At that hearing, the magistrate ordered that he would not change his Findings of Fact and Conclusions of Law. Despite this pronouncement, the magistrate changed the custody schedule for the parties to a 50/50 shared arrangement, with the children rotating frequently between each parent's home. Specifically, the magistrate ordered:

But the parenting scenario which I have envisioned for this family will be that dad will have the kids on Tuesdays and Wednesdays, so when kids get out of the school on Tuesday, they will go to his house.
You will have them that night, you will have them all day Wednesday, and he take them back to school on Thursday, and he will have them every other weekend from Friday till Monday. So one week he will have them after school on Tuesday, he'll have them Wednesday, he will have them, take them to school on Thursday.
If it's his weekend, he will get them after school on Friday. He will have them Friday, Saturday, Sunday, and he will take them to school on Monday.
After school on Monday, they will come to your house. They will be there till Tuesday after school, where they will go with him. They'll be there Tuesday, Wednesday, and to school on Thursday. That next week will be your weekend. You will have them Thursday, Friday, Saturday, Sunday, Monday, and you will drop them off to school on Tuesday, and after school, they will go to him.
It's a [] pure 50/50, and the longest you're ever away from your kids is about four days, and I think it works. It makes him be a parent in the school realm, it allow[s] you to be a parent in the school realm, and I think that this is what these kids deserve.

         The magistrate further ordered that Father, Mother, A.O., and E.O. attend counseling due to the fact that E.O. and A.O. had a strained relationship with Father. The magistrate ordered that the new custody arrangement would not come into effect until the first of the year so as to not burden the children with the change during the holidays. The court added that the custody arrangement was "subject to me seeing something in the reports [from the counselor] that makes me say, wait a minute, I think we need to wait a little bit longer to get this done."

         On January 4, 2016, there was a status conference held, which was not recorded. Apparently, at the time of the status conference, the counselor's report had not been completed. Despite this fact, the magistrate ordered the parties to immediately begin to follow the new 50/50 shared custody schedule that it had announced at the hearing on the Motion to Reconsider (Third Custody Order).

         On January 11, 2016, Father filed a Motion to Stay, requesting the court stay its order instituting the 50/50 custody schedule, and also filed a Motion for Permissive Appeal to the Idaho Supreme Court. Mother filed an Objection to Motion to Stay on January 12, 2016, but on January 14, 2016, the magistrate entered an Order Re: Motion for Stay without a hearing. Following the entry of the Order Re: Motion for Stay, Mother filed several motions with the magistrate court, including a Rule 108 Motion to Disqualify for Cause; a Rule 807 Motion for a New Trial; a Rule 119 Motion to Allow the Declarations of A.O. and E.O.; a Rule 812 and Rule 814 Motion to Stay; and a Motion for Permissive Appeal.

         Father filed an objection to Mother's motions on January 27, 2016. Mother's various motions were heard before the magistrate on February 5, 2016. During the hearing, the magistrate denied Mother's Motion to Disqualify for Cause; Motion for New Trial; Motion to Allow the Declarations of A.O. and E.O.; and Rule 812 and Rule 814 Motion to Stay. Over Father's objection, the magistrate heard Mother's objection to the Order to Stay that the magistrate had filed on January 12, 2016. The magistrate acknowledged that the Objection was not being timely heard and that it was being heard on the court's own motion. Following the hearing on Mother's objection to the Order to Stay, the magistrate ruled from the bench and rescinded the Order Re: Motion for Stay that had been entered January 14, 2016. In doing so, the magistrate also altered the 50/50 custody schedule to a week on/week off arrangement. The magistrate then granted both parties' motions for permissive appeal.

         On February 17, 2016, the magistrate entered its First Amended Judgment and Order Modifying Prior Court Orders (Fourth Custody Order) to ...

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