Opinion No. 66
from the Magistrate Court of the Seventh Judicial District of
the State of Idaho, in and for Bingham County. Hon. Scott H.
Hansen, Magistrate Judge.
judgment of the magistrate court is vacated.
Blower, Swafford Law PC, Idaho Falls, argued for appellant.
M. Harris, Baker & Harris, Blackfoot, argued for
an appeal out of Bingham County from the modification of a
judgment by default to require that the parents of a child
rotate custody of their three-year-old child every three
weeks, where the father is living in Blackfoot and the mother
is living in Oceanside, California, a distance of 913 miles
away. We hold that the magistrate court abused its discretion
in ordering that custody rotation. In addition, the mother
had moved to modify the judgment by default, but did not move
to set aside the entry of default. We hold that the father
waived the default by litigating the motion to modify.
2011, Carlos Martinez ("Father") and Evelia
Carrasco ("Mother") met in Idaho Falls, and they
lived together in Idaho until February 2013. When they
separated, Mother was seven months pregnant. She moved to
Salt Lake City to live with her sister and gave birth while
there to a male child ("Child"). She then returned
to Idaho, and in September 2013, she moved to California with
Child and her older nine-year-old son from a prior
25, 2013, the State of Idaho, Department of Health and
Welfare ("Department"), filed an action in Bingham
County against Father and Mother to establish filiation and
child support. After Department established through DNA
testing that Father was the father of Child, Father filed a
cross-claim against Mother seeking, among other things, that
the court enter a judgment providing: "That the parties
share joint legal and joint physical custody of the minor
child. The parties will have custody every other week
alternating on Friday nights at 6:00 p.m."
April 16, 2014, Father filed a separate action against Mother
seeking, among other things, a judgment providing: "That
the parties share joint legal and joint physical custody of
the minor child. The parties will have custody every other
week alternating on Friday nights at 6:00 p.m." On April
17, 2014, the magistrate court entered an order consolidating
the case filed by Department into the case filed by Father.
State was able to serve Mother in Pocatello on July 31, 2014.
She contends that she had returned temporarily to assist her
nieces in obtaining public assistance. She apparently applied
for public assistance in Idaho while she was in Pocatello,
which was probably how the State was able to locate and serve
her. Father was unable to personally serve her, so he served
her by publication in a Pocatello newspaper, which service
was completed on September 20, 2014. He obtained a default judgment on October
16, 2014, and an amended judgment on December 29,
2014. The amended judgment provided,
"That the parties share legal custody and FATHER have
sole physical custody of the minor child with MOTHER to have
visitation as the parties can agree." It also provided
that "MOTHER be ordered by the court to pay FATHER's
attorney's fees and costs of $2, 500.00, " although
there is no indication of the statutory basis for such award.
had actual physical custody of Child until March 31, 2016.
Father went to Oceanside, California, where Mother was living
with Child and her older son. He found her at a Wal-Mart
store and told her that his mother was there from Mexico and
wanted to see Child. She agreed to that request. Mother's
older son was in school, and she drove to his school to pick
him up, with Child, Father, and Father's mother in the
car. Mother agreed to permit Child to spend the night with
Father, but asked that he also take her older son because he
and Child were close. They agreed to meet at the Wal-Mart
store the next day, which was March 31, 2016. When Mother
arrived at the store, Father was not there. She called him,
and he stated that he was taking Child and that he left
Mother's older son outside her apartment. Father then
brought Child to Idaho.
April 14, 2016, Mother filed a motion pursuant to Idaho Rules
of Family Law Procedure 306 and 809(4) to set aside the
initial October 16, 2014, default judgement on the ground
that it was void. At the conclusion of oral argument on the
motion, the magistrate court stated that it would decide the
motion based upon Idaho Rule of Civil Procedure
60(b) and that it could "find no
mistake, inadvertence, or other grounds under Rule 60(b) to
set the judgment aside under these circumstances."
However, the court stated that it would permit Mother to make
an oral motion to modify the existing judgment, to be
followed by a written one.
the magistrate court stated it would deny the motion to set
aside the default judgment, it set an evidentiary hearing on
the anticipated motion to modify and then told the parties
that they needed to discuss a temporary custody arrangement
for Child. The court made it clear that it was contemplating
equal time for both parents. It stated as follows:
Let me just throw out a suggestion to you. What I anticipate
doing is saying that Dad will keep the child until the month
of April is over, and then Mom can take the child for the
month of May. And then Dad will get the child back for the
month of June. So we're just going to rotate it on that
basis between on that.
Now, that is not the best custody arrangement for this child.
I understand that. But under the circumstances and the
limited amount of time, it's somewhat fair to the
parents-probably not fair to your child, but it's fair to
Now, if you men want to discuss that with your clients, you
can do that. If not, we'll launch into a hearing at 4:00
o'clock. And what I'll do is I'll take a little
bit of testimony from each of these parties for a few
minutes, and then I'll issue a decision.
is not fluent in English and had to communicate through an
interpreter. After a recess, the parties stipulated to change
physical custody of Child every two weeks. Mother filed her
petition to modify on April 26, 2016.
evidentiary hearing was held on August 11, 2016. At that
time, Child was three years of age and Mother's older son
was nine years of age. After the trial, the court entered its
findings of fact and conclusions of law and a judgment. The
judgment required the parties to change physical custody of
Child every three weeks, with the exchange of custody to
occur at the McDonald's restaurant in Barstow, California
off I-15 at exit 184, and it ordered that neither party would
pay child support and that each party would provide health
insurance for Child if it was available at a reasonable cost
and would pay one-half of any uncovered medical expenses for
petitioned for a permissive appeal to this Court pursuant to
Idaho Appellate Rule 12.1, which this Court granted. Mother
then filed her notice of appeal.
this Court Have Jurisdiction to Hear the Appeal?
October 16, 2014, Father obtained the entry of default
against Mother and a default judgment. On April 14, 2016,
Mother filed a motion pursuant to Idaho Rules of Family Law
Procedure 306 and 809(4) to set aside the default judgment on
the ground that it was void because the magistrate court
lacked jurisdiction to enter the judgment. Father's
cross-claim had been served by publication in a Pocatello
newspaper in September 2014. Mother contended that she had
been a resident of California from September 2013 to the
present; that while she was temporarily in Idaho visiting her
niece, she had asked for public assistance; that she did not
know of this lawsuit or the judgment until March 31, 2016,
after Father had taken Child; and that California was her son's home
state for purposes of the Uniform Child Custody Jurisdiction
and Enforcement Act. The magistrate court denied her motion
to set aside the default judgment, but stated that she could
file a motion to modify the judgment. In so stating, the
distinguish a judgment by default from the mere entry of
default. . . . An entry of default and an entry of default
judgment are two separate events or steps." 46 Am. Jur.
2d Judgments § 233 (2006) (footnotes omitted).
An entry of default does not constitute a judgment.
Pierce v. McMullen, 156 Idaho 465, 469, 328 P.3d
445, 449 (2014). Rule 301 of the Idaho Rules of Family Law
Procedure provides for the entry of default,  and Rules 304 and 305 provide for entry of
a default judgment. The corresponding
Idaho Rules of Civil Procedure are essentially
306 of the Idaho Rules of Family Law procedure sets forth the
procedure for setting aside a default and a default judgment.
It states, "For good cause shown the court may set aside
an entry of default and, if a judgment by default has been
entered, may likewise set it aside in accordance with Rule
809." Under that rule, a party's default may be set
aside for good cause shown "and, if a judgment by
default has been entered, " the default judgment may
likewise be set aside in accordance with Rule 809.
Thus, the default must be set aside and then the judgment by
default, although motions to set aside the default and to
obtain relief from the default judgment can be made
simultaneously. Setting aside the judgment by default does
not set aside the default, because they are two separate
case, Mother never moved to set aside the entry of default.
Her motion stated:
COMES NOW the Cross Respondent, Evelia Carrasco Carrasco, by
and through her attorney of record, NATHAN D. RIVERA, and
moves the Court, pursuant to the Rule 306 and Rule 809(4) of
the Idaho Rules of Family Law Procedure, to set aside the
default judgment which was entered ...