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Searle v. Searle

Supreme Court of Idaho

November 8, 2017

LISA M. SEARLE nka LOOSLE, Plaintiff-Appellant,
v.
DUSTIN L. SEARLE, Defendant-Respondent.

         2017 Opinion No. 114

         Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bingham County. Hon. Scott H. Hansen, Magistrate Judge.

         Magistrate order modifying child custody plan, reversed and remanded.

          Hopkins Roden Crockett Hansen & Hoopes, PLLC., Idaho Falls, for appellant. Tracy W. Gorman argued.

          Swafford Law, PC, Idaho Falls, for respondent. Larren Covert argued.

          BURDICK, Chief Justice.

         This expedited, permissive appeal presents a child custody dispute. Lisa M. Searle, nka Lisa Loosle ("Mother") appeals the Bingham County magistrate judge's order which modified the current child custody plan outlined in the 2013 order between Mother and Dustin L. Searle ("Father"). Mother argues that the magistrate judge abused its discretion in determining there had been a substantial, material, and permanent change in circumstances warranting a change in custody. Mother also argues the magistrate judge abused its discretion when it determined it was in the best interests of Child to modify the existing custody agreement and give Father physical custody during the school year. We reverse the magistrate judge's change in custody.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Mother and Father were married in 2005 and had one child ("Child") during the marriage. Mother and Father divorced in Bonneville County in 2007. Following the divorce, the parties entered into a child custody agreement that gave Mother custody of Child during the school year, with Father having visitation on weekends and holidays. On August 23, 2012, the parties entered into a modified custody agreement that contemplated and allowed for Mother's potential relocation for her employment, and if Mother found employment outside of Idaho, she would be allowed to relocate to another state. The agreement indicated the parties would continue to adhere to the existing visitation schedule and transportation schedule even if Mother moved. Six days after the magistrate judge entered this agreement as a court order, Mother moved with Child to Virginia.

         On October 5, 2012, Father filed a petition for modification based on Mother's move to Virginia. The magistrate judge created the "2013 Custody Order" which continued to give custody to Mother during school, and gave Father visitation during summers, spring break, fall break, and every other Christmas break. The 2013 Custody Order required Father to pay for his flight to Virginia to get Child, and Mother to pay for the return flight to bring Child back. At the time, the visitation schedule worked because Father was employed in the oil fields of North Dakota, while earning a substantial salary, so he could afford to fly for his visitation. From 2009 until May 2015, Father worked in North Dakota for three weeks out of the month. Starting in 2011, Father took summers off from work and spent summers in Shelley, Idaho, and worked the rest of the year in North Dakota.

         In November of 2014, Mother became ill and moved back to the Boise area with Child. Mother consulted with Father before moving back to Boise, and Father consented to Mother's move. Mother and Father continued to follow the visitation plan in the 2013 Custody Order even after Child had returned to Idaho. Father testified that after Mother moved back to Idaho in 2014, they discussed changing his visitation to more than what was in the 2013 Custody Order. Mother was open to changing the agreement, but Father told Mother he wanted it to stay the same, as he did not want to give up any of his already-established visitation time. Mother testified that she asked Father if Mother could spend time with Child when Child was in Shelley, but that Father said no.

         In May of 2015, Father stopped working in the oil fields. On May 21, 2015, Father filed a petition for modification, to reduce his child support, as he was earning significantly less than he had in the oil fields. Approximately one year later, on July 15, 2016, Father amended his petition for modification asking for a revision to visitation and custody time due to Child being back in Idaho.

         On December 16, 2016, a trial was held on the issues raised in Father's amended petition for modification-the child support amount and custody agreement. At trial, Father argued that his income had decreased significantly and his support amount should be reduced. Father also indicated his new employment was seasonal and may lay him off, or give him full-time work, but he does not need the income from the job because he "can make a living working at McDonald's" and still be able to pay his bills. Mother testified that she is currently earning $45, 000 per year working for the Caldwell School District as a school psychologist, but that she is almost finished completing her degree as an Education Specialist, and had been offered an internship needed to complete that training in Virginia.

         Father argued that Child should come live with Father during the school year, instead of Mother, because Child would be able to attend one consistent school in Shelley and have consistent relationships with Father's family that lived in Shelley. Child had attended five different schools while in the care of Mother; however, Mother testified that Child switched schools five times due to Child's enrollment in a gifted and talented program. The only voluntary switch, where Mother changed Child's school, occurred when Mother moved back to Boise from Virginia. The other school changes were a result of the gifted and talented program changing locations, as the school district rotates where the gifted and talented program is located each year. Father had agreed to enroll Child in the gifted and talented program.

         When asked what sort of custody arrangement Father wanted, Father stated that the 2013 Custody Order already in place was "not a bad one" and that custody should just be switched so that Father would have custody during the school year, and Mother would have the visitation that Father had previously had. Father stated that if he were given custody of Child during the school year he would get more involved in Child's schooling, as even after Child moved back to Idaho, Father had only been to Child's former and current schools in Boise one time each and did not know who Child's teacher was. Additionally, Father had never attended a parent teacher conference. Mother testified that she takes Child to medical appointments, helps Child with homework, and takes Child to extracurricular activities. Mother had maintained custody of Child during the school year for all of Child's life. Mother also testified that Child has documented separation anxiety when away from Mother.

         At trial the magistrate judge asked Mother, "If the order is that [Child]'s going to go and go to school in Shelley, would you stay in Boise or would you go to Virginia or would you move to Shelley and -- what would you do? What's your spontaneous response to that?" Then the magistrate judge stated, "And nobody is going to hold you to it, because I know you're just shooting from the hip here right now." Mother replied, "I would move to Virginia." Mother's statement that she would return to Virginia regardless of the trial outcome was a main basis for the denial of her motion to reconsider, with the magistrate judge stating Mother had taken one position at trial, and then changed her position to try and change the trial results. Mother later stated she was attempting to ask the magistrate judge for permission to move, rather than stating her firm intention to move. Mother has since declined her opportunity in Virginia and is staying in Boise.

         The magistrate judge found there had been a substantial change in circumstances because of Mother's move to Idaho and her plan to move back to Virginia, as well as Father's job loss and reduced income. The magistrate judge determined that the best interests of Child would be served by reversing the existing custody plan and giving Father school year custody of Child. In reaching his decision, the magistrate judge focused on Child's five changes in schools as well as Mother's residential moves, as Mother had moved four to five times during Child's life. The magistrate judge also credited Father for Father's homeownership of his house in Shelley since 2011, Father's family network in Shelley, and Father's ability to pay his bills by working at McDonald's if needed. Mother filed a motion to reconsider and said she was staying in Boise rather than moving to Virginia. The magistrate judge denied the motion to reconsider, reiterating many of the reasons given in its initial order, and noting that Mother was changing her position by deciding not to move to Virginia. Mother timely appealed.

         II. ISSUES ON APPEAL

         1. Whether the magistrate abused its discretion when it modified the ...


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