ERIK T. BOE, Petitioner-Respondent,
AMELIA M. BOE, nka JOHNSON, Respondent-Appellant.
from the District Court of the Fourth Judicial District,
State of Idaho, Ada County. Hon. Laurie A. Fortier,
court ruling affirmed.
Ryan, PLLC, Boise, for appellant. Margalit Z. Ryan argued.
Geoffrey E. Goss, Boise, for respondent. Geoffrey E. Goss
BURDICK, CHIEF JUSTICE.
M. Johnson, fka Boe (Mother), brings this permissive appeal
under Idaho Appellate Rule 12.1 from the Ada County
magistrate court. Mother and Erik T. Boe (Father) divorced in
2010 and, at that time, stipulated to a joint-custody
arrangement regarding their two minor children, L.R.B. and
L.E.B. (collectively, the Children). That custody arrangement
governed until 2015, when Father relocated from Southeast
Boise to Meridian. With Father's move came disputes over
physical and legal custody, which schools the Children should
attend, and issues pertaining to child support. A two-year
course of litigation ensued, with Mother and Father
ultimately stipulating to a partial judgment that resolved
physical custody and trying issues concerning legal custody,
the Children's schools, and child support to the
magistrate court. As relevant here, the magistrate court
ruled that the Children were to attend the schools assigned
to Father's Meridian home (the Meridian Schools), and
that Mother and Father were each entitled to one dependency
exemption. On appeal, Mother challenges these rulings and,
further, makes several contentions pertaining to physical
custody. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
and Father divorced in 2010. They stipulated to a divorce
decree allowing for joint legal and physical custody over the
Children. They agreed that Father's home address
in Southeast Boise would be used for school registration
purposes. The Children were thus enrolled at the schools
assigned to Father's Southeast Boise home address (the
Boise Schools), and this was uncontested until Father
relocated from Southeast Boise to Meridian in 2015.
with Father's 2015 move to Meridian came the filing of
his petition to modify the divorce decree as it pertained to
child custody. In that petition, filed on October 2, 2015,
Father requested "sole legal custody as it relates to
the education of the minor children." Father identified
several events as substantial, material, and permanent
changes in circumstances, including: (1) his move from
Southeast Boise to Meridian; (2) his address had always been
used for school registration purposes; (3) Mother moved
frequently, and had her address been used for school
registration purposes, the Children would have been placed in
three schools by the fourth grade; and (4) Mother did not
prioritize the Children's education. Consequently, Father
specifically requested that he be allowed to enroll the
Children at the Meridian Schools. Mother answered Father's
petition, in relevant part, by counterclaiming that she
should be awarded sole legal custody and primary physical
custody, with visitation rights for Father, and requesting a
modification of child support.
February 19, 2016, Mother and Father stipulated to allow
Robert Engle, Ph.D., to perform a custody evaluation (the
First Custody Evaluation). The parties agreed that the First
Custody Evaluation was "to help aid the parties to
address their communication issues and to determine a final
custodial arrangement with the . . . [C]hildren."
Father's counsel prepared an order pertaining to the
stipulation, which order stated that "the parties shall
be bound by the recommendations concerning custody from said
evaluation." When the order was sent to Mother, she was
instructed that, "[i]f [she] had any problems with this,
let [Father's counsel] know right away, and we'll
make whatever recommendations or changes to that order."
No objection was made, and instead, Mother and Father signed
the stipulation that accompanied the order. The magistrate
court signed and entered the order on February 22, 2016.
Engle conducted the First Custody Evaluation in July 2016. He
concluded it was in the Children's best interests for
Father to have sole legal custody concerning educational
decisions and primary physical custody during the school
year. The magistrate court implemented the First Custody
Evaluation at Father's request by entering a
corresponding interlocutory judgment on August 12, 2016,
ordering that (1) the "parties shall have joint legal
custody of [the Children], with [Father] being awarded sole
legal custody as it pertains to the educational
decisions"; (2) "[the C]hildren shall attend the
school(s) associated with [Father's] residence"; and
(3) during the schoolyear [sic], Father "shall be
awarded primary physical custody of the . . . [C]hildren,
subject to visitation with [Mother.]"
moved for reconsideration on October 3, 2016. Mother
challenged the First Custody Evaluation by contending it was
improperly prepared and erroneously implemented because,
according to Mother, the parties did not stipulate to be
bound by it. The magistrate court denied the motion on
November 30, 2016.
trial on the issues of physical custody and child support,
Father filed a motion in limine to exclude evidence contrary
to the First Custody Evaluation on January 18, 2017. The
magistrate court granted Father's motion, ruling that
"evidence to the contrary [of the First Custody
Evaluation] will be excluded at the trial on the
understanding that the parties have, in essence, agreed to
allow the [First Custody Evaluation] to be the only evidence
on that point."
Mother's challenges against the First Custody Evaluation
continued. After deposing Dr. Engle, she filed a motion in
limine to exclude Dr. Engle's testimony and the First
Custody Evaluation from evidence. Similarly, Mother moved the
magistrate court to reconsider its ruling granting
Father's motion in limine. The magistrate court heard
these two intertwined motions on February 21, 2017, and found
that the First Custody Evaluation had been erroneously
prepared, as it did not comply with Idaho Rule of Family
Procedure 719 and that rule's express incorporation of
the Association of Family and Conciliation Courts Model
Standards of Practice for Child Custody Evaluations (AFCC).
Specifically, the First Custody Evaluation was deemed
erroneously prepared because, as relevant here, Dr. Engle
accepted Father's assertions as true and "at face
value" without giving Mother a chance to respond, which
the magistrate court found especially
problematic. In fact, Dr. Engle conceded that, while he
"used to . . . have a meeting to go over the allegations
and the parents' responses to the allegations[, ]"
he had since "quit doing that because it was
useless" and further conceded that he
"do[es]n't do that anymore with anybody."
Consequently, the magistrate court reasoned that
an evaluation that has a willful disregard, which is what
appears to be the case here, of the basic procedure and rules
that are contained in Rule 719, and by extension, the
standards set forth by the AFCC, the parenting time
evaluation in this case is not a parenting time evaluation
any more than an affidavit that is unsworn is not an
affidavit or a check that is unsigned is not a negotiable
magistrate court therefore excluded the First Custody
Evaluation from evidence, vacated the impending trial date,
and ordered a new custody evaluation from Todd Bennett, Ph.D.
Although Mother moved the magistrate court to vacate the
interlocutory judgment that implemented the First Custody
Evaluation, the magistrate court denied Mother's request
and allowed it to govern.
Bennett's custody evaluation (the Second Custody
Evaluation) was filed with the magistrate court on July 21,
2017. Dr. Bennett recommended that Mother and Father have
shared physical and legal custody, and that the Children be
assigned to the Meridian Schools. Regarding physical custody,
Dr. Bennett concluded that, "[u]ltimately, it is in the
best interest of the [C]hildren to have both parents act in a
facilitative role." Regarding the Children's
schools, Dr. Bennett explained that the Children "have
done well this past year" and that they should continue
attending the Meridian Schools. However, he declined to
recommend that one parent be awarded legal custody,
I do not recommend that either parent have legal
decision-making over school related issues. When one parent
has legal authority, they stop co-parenting with the other
parent. If there are major decisions to be made, such as
school, summer school, or extracurricular activities that the
parents cannot agree on, this would be an appropriate use of
a parenting coordinator assigned to their family.
the Second Custody Evaluation, Mother and Father stipulated
to entry of a partial judgment to resolve the issue of
physical custody. Under the partial judgment, Mother and
Father stipulated to "a shared week on off custodial
arrangement." The magistrate court signed and entered
the partial judgment on August 30, 2017. The outstanding
issues concerning "what school the [C]hildren should
attend, [Father's] request to have sole decision
regarding choice of school, and matters of [child] support[,
]" were tried to the magistrate court on September 6,
2017. The magistrate court ruled that the Children "will
continue to attend their present schools [(i.e., the
Meridian Schools)] and future schools that are assigned to
[Father's] current residence [in Meridian]. Any changes
to school(s) must be agreed upon, unless it normally flows
from [Father's] residence." In addition, the
magistrate court awarded one dependency exemption to Mother
and one to Father. Mother timely sought permission to appeal
these rulings from trial under Idaho Appellate Rule 12.1, and
the magistrate court granted her request.
ISSUES ON APPEAL
Mother's challenges concerning physical custody moot?
the magistrate court err by assigning the Children to the
the magistrate court abuse its discretion in allocating the
two dependency exemptions?
Should attorney fees be awarded on appeal?
Mother's challenges concerning physical custody are
issues, such as mootness, are freely reviewed."
Syringa Networks, LLC v. Idaho Dep't of Admin.,
159 Idaho 813, 826, 367 P.3d 208, 221 (2016) (quoting
State v. Barclay, 149 Idaho 6, 8, 232 P.3d 327, 329
(2010)). "An issue becomes moot if it does not present a
real and substantial controversy that is capable of being
concluded through judicial decree of specific relief."
Nampa Educ. Ass'n v. Nampa Sch. Dist. No. 131,
158 Idaho 87, 90, 343 P.3d 1094, 1097 (2015) (quoting
Ameritel Inns, Inc. v. Greater Boise Auditorium
Dist., 141 Idaho 849, 851, 119 P.3d 624, 626 (2005)).
Stated differently, mootness "applies when a favorable
judicial decision would not result in any relief. This Court
may only review cases in which a judicial determination will
have a practical effect on the outcome." Houpt v.
Wells Fargo Bank, Nat. Ass'n, 160 Idaho 181, 189,
370 P.3d 384, 392 (2016) (quoting Fenn v. Noah, 142
Idaho 775, 779, 133 P.3d 1240, 1244 (2006)). "This Court
must raise issues of mootness sua sponte because it
is a jurisdictional issue." Suter v. Biggers,
157 Idaho 542, 550, 337 P.3d 1271, 1279 (2014).
makes a flurry of contentions in an effort to show that the
magistrate court erred by ordering the parties to be governed
by the physical custody arrangement set forth in the First
Custody Evaluation. She specifically disputes the magistrate
court's conclusion that she validly stipulated to be
bound by the First Custody Evaluation, contends the First
Custody Evaluation was erroneously prepared, and asserts the
magistrate court inappropriately abdicated its duties to Dr.
Engle. However, Mother's challenges concerning physical
custody under the First Custody Evaluation are moot because