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Kelly v. Kelly

Supreme Court of Idaho

October 25, 2019

BRANDON REYES KELLY, Petitioner-Respondent,
v.
BRANDI LEIGH KELLY, Respondent-Appellant.

          Appeal from the Magistrate Court of the Seventh Judicial District of the State of Idaho, Bonneville County. L. Mark Riddoch, Magistrate Judge.

         The magistrate court's award of sole legal custody and primary physical custody to Brandon is vacated and the case is remanded for a new trial. No attorney fees or costs are awarded.

          David A. Johnson, P.A., Idaho Falls, attorney for Appellant. David A. Johnson argued.

          Smith Woolf Anderson & Wilkinson, PLLC, Idaho Falls, attorneys for Respondent on appeal. Aaron J. Woolf argued.

          BEVAN, JUSTICE

         I. Nature of the Case

         This is a custody dispute. Brandi and Brandon Kelly were married and had a son. After about two years of marriage Brandon filed for divorce. Once the divorce was final the magistrate court awarded sole legal custody and primary physical custody of the boy to Brandon. Brandi filed a permissive appeal, arguing the magistrate court erred by relying on an inadmissible parenting time evaluation and following the recommendations of a biased evaluator. We vacate the child custody judgment and remand for a new trial, but we affirm certain evidentiary rulings for guidance upon remand.

         II. Factual and Procedural Background

         Brandi and Brandon started dating in March 2014. Brandon owned a home in Idaho Falls, Idaho, and in August 2014, Brandi moved in with Brandon. Brandi and Brandon married on April 20, 2015. Shortly after the parties married, in June 2015, they had a son ("Child"). Brandon is a neurosurgeon practicing in Idaho Falls. He is a 50% owner in Idaho Neurosurgery and Spine, PLLC. Brandon's LLC has a professional services agreement with Eastern Idaho Regional Medical Center where he provides on-call services. Brandi worked as a loan officer for D.L. Evans Bank before Child's birth, but then stayed home to care for Child, and her son from a prior relationship.

         Brandon filed for divorce on May 30, 2017. On the same day, Brandon filed a notice of strict compliance with the Idaho Rules of Evidence. At first, Brandon requested that the parties share legal custody of Child, with Brandi having primary physical custody and Brandon having visitation as agreed upon by the parties. The parties agreed that Brandi would remain in Brandon's Idaho Falls home with primary physical custody of Child and that Brandon would move in with his parents who lived in the same neighborhood.

         In November 2017, Brandon retained Dr. Jane McNaught, a nationally renowned psychologist from Minnesota, to review certain documents and information to determine whether Brandi was engaging in conduct that constituted parental alienation. In the letter formalizing the retention of Dr. McNaught and enclosing the fee agreement and retainer fee, Brandon's lawyer wrote: "he [Brandon] is fearful that his wife has been alienating his son from him . . . . I have enclosed a DVD which contains several pieces of documentation and information which we would like you to consider, and to determine whether or not you believe that parental alienation is taking place." About a month later, Dr. McNaught responded to Brandon's lawyer, explaining that she had reviewed the records the attorney had given her, but was not able to form any opinions based on those records. Dr. McNaught recommended that the trial court should consider ordering a parenting time evaluation to evaluate the best interests of the child.

         Three days later, Brandon filed a motion for the court to appoint a parenting time evaluator under Idaho Rule of Family Law Procedure ("IRFLP") 719. Brandon requested that the court appoint Dr. Jane McNaught as the parenting time evaluator, or in the alternative, as his own expert under Idaho Rule of Evidence 706. Brandi objected to Brandon's request for a parenting time evaluator citing, among other things, that Brandi's medical or mental state was not relevant and that Dr. McNaught would not likely be a neutral party.

         The magistrate court entered an order declining to appoint Dr. McNaught as the court's expert; however, the court allowed Brandon to hire Dr. McNaught as his expert to conduct a parenting time evaluation consistent with IRFLP 719. The court ordered both parties to comply with any and all reasonable requests made by Dr. McNaught and any expert hired by Brandi. Brandi objected again, arguing that Brandon had failed to disclose that Dr. McNaught had been consulting and advising him in this matter. Brandi alleged that Brandon at first tried to cover up the retention of Dr. McNaught by blacking out her name on a check written in November 2017, prior to the magistrate court's appointment. Brandi maintained that Brandon was trying to circumvent the court's order denying Dr. McNaught as the court's evaluator under IRFLP 719 by having Dr. McNaught as his own expert.

         On February 12, 2018, Brandi filed a disclosure naming Robert Engle, Ph.D., as an expert to evaluate child custody issues per the magistrate court's order. On February 20, 2018, Brandi moved the court to appoint Dr. Engle as a parenting time evaluator under IRFLP 719. Brandon objected. The magistrate court entered an order declining to appoint Dr. Engle as the court's expert; however, the court allowed Brandi to hire Dr. Engle to conduct a parenting time evaluation as her own expert and ordered both parties to comply with all reasonable requests made by Dr. Engle.

         On March 23, 2018, Brandon filed a second amended petition for divorce. The second amended petition still requested that the parties share legal custody, but now Brandon asked to be awarded primary physical custody of Child, with Brandi being awarded visitation as agreed on by the parties.

         Sometime before trial, Brandi moved in limine requesting that the court exclude Dr. McNaught as a witness and prohibit her from providing any testimony in the case, directly or indirectly, including through any report.[1] This motion also requested that another expert Brandon had disclosed, Dr. Woodruff, only be allowed to provide general testimony as to the areas disclosed previously.

         On April 24, 2018, the court entered an order bifurcating the case. All the issues-except for custody, visitation, and child support-went to trial on April 24, 2018 through April 27, 2018. On May 1, 2018, the magistrate court entered a judgment and decree of divorce.

         At a hearing on August 28, 2018, the magistrate court denied Brandi's motion in limine to strike Dr. McNaught's report. The court clarified that it was treating Dr. McNaught as Brandon's expert who was not under the direction of the court, recognizing that under IRFLP 719 a parenting time evaluator may be involved in a case either by order or by stipulation. The court explained its earlier order:

Now here what I did is I authorized each side to have an expert, and I ordered that each side cooperate with that [expert] . . . each side would have knowledge of what the other side was submitting to that person. So I distinguish that in my mind.

         The custody and visitation trial took place from September 11, 2018 through September 14, 2018. Dr. McNaught testified at trial about the parenting time evaluation she had conducted. Dr. McNaught was largely concerned with her belief that Brandi suffered from untreated mental health issues. As such, Dr. McNaught recommended that Brandi be evaluated by a board-certified psychiatrist and comply with any suggested medications as long as her psychiatrist advised she do so. Dr. McNaught proposed that until Brandi complied with these recommendations that she not transport or make decisions regarding Child's medical care and educational programming. Brandi's expert, Dr. Engle, also testified at trial, but Dr. Engle explained that he refused to do a parenting time evaluation because he was not appointed by the court; as such, Dr. Engle reasoned he lacked the authority to have both parents and the child involved in the evaluation. Instead, Dr. Engle conducted a psychological evaluation of Brandi.

         On November 19, 2018, the magistrate court entered its findings of fact and conclusions of law. The court recognized that Brandi's primary concerns were Brandon's long work hours and on call schedule preventing him from spending sufficient time with Child, as well as his introverted nature. On the other hand, Brandon was concerned about Brandi's parenting ability as well as her psychological and emotional stability. The magistrate court examined these concerns and recognized that both parents had shown their commitment to Child, but often Brandi's behavior was erratic and out of control, including a pattern of making demeaning statements towards Brandon in front of Child and denying Brandon visitation. Before the magistrate court even reached the expert testimony and opinions, the judge conveyed he had serious concerns about Brandi's psychological and emotional stability for parenting Child based on his own observations of Brandi's conduct from the evidence submitted during pretrial motions.

         After considering the expert testimony and reviewing each of the factors in Idaho Code section 32-717, the magistrate court determined it was in Child's best interests that the parties be awarded joint physical custody, with Brandon receiving primary physical custody and sole legal custody of Child. The court found Brandi had multiple parenting deficits: 1) she had not shown she could communicate appropriately with Brandon; 2) she could not behave positively during exchanges; and 3) she could not effectively co-parent at that time. On December 12, 2018, the magistrate court entered a judgment. Brandi filed a permissive appeal of the magistrate court's custody award.

         III. Issues on Appeal

1. Whether the magistrate court abused its discretion in allowing Dr. McNaught to conduct a parenting time evaluation as Brandon's expert.
2. Whether the magistrate court abused its discretion in permitting Dr. Evans' testimony.
3. Whether the magistrate court abused its discretion in admitting Dr. Woodruff's report.
4. Whether the magistrate court abused its discretion in awarding Brandon sole legal custody and primary physical custody of Child.
5. Whether the magistrate court erred in ordering Brandi to undergo a psychological evaluation and attend weekly mental health counseling.
6. Whether the magistrate court abused its discretion in its discovery determinations.
7. Whether the magistrate court erred by requiring Brandi to reside in Bonneville County as a condition to having any physical custody of Child.
8. Whether either party is entitled to attorney fees and costs on appeal.

         IV. Standard of Review

         This Court reviews child custody determinations under an abuse of discretion standard. Clair v. Clair, 153 Idaho 278, 282, 281 P.3d 115, 119 (2012) (citing Schneider v. Schneider, 151 Idaho 415, 420, 258 P.3d 350, 355 (2011)). Under this standard the Court asks whether the magistrate court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018). An abuse of discretion is found when the magistrate court's "findings are clearly erroneous such that the court's findings are not based on substantial and competent evidence." Clair, 153 Idaho at 282, 281 P.3d at 119 (quoting Schneider, 151 Idaho at 420, 258 P.3d at 355). "In a decision regarding a custody award or modification, '[a]n abuse of discretion occurs when the evidence is insufficient to support a magistrate's conclusion that the interests and welfare of the children would be best served' by the magistrate court's order." Id. (quoting Nelson v. Nelson, 144 Idaho 710, 713, 170 P.3d 375, 378 (2007)). In determining the best interest of the child, the Court must consider all relevant statutory factors, which include

(a) The wishes of the child's parent or parents as to his or her custody;
(b) The wishes of the child as to his or her custodian;
(c) The interaction and interrelationship of the child with his or her parent or parents, ...

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