from the Magistrate Court of the Seventh Judicial District of
the State of Idaho, Bonneville County. L. Mark Riddoch,
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.
A. Johnson, P.A., Idaho Falls, attorney for Appellant. David
A. Johnson argued.
Woolf Anderson & Wilkinson, PLLC, Idaho Falls, attorneys
for Respondent on appeal. Aaron J. Woolf argued.
Nature of the Case
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.
Factual and Procedural Background
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.
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.
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.
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
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
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.
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.
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. This motion also requested that
another expert Brandon had disclosed, Dr. Woodruff, only be
allowed to provide general testimony as to the areas
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.
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.
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
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.
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.
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.
Standard of Review
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, ...