Opinion No. 121
from the District Court of the Seventh Judicial District,
State of Idaho, Madison County. Hon. Eric S. Hunn, 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.
St. Clair, Gaffney, PA, Idaho Falls for intervenor.
NATURE OF THE CASE
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
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
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
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.
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."
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.
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.
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.
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
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
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.
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
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).
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.
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
February 17, 2016, the magistrate entered its First Amended
Judgment and Order Modifying Prior Court Orders (Fourth
Custody Order) to ...