*1 P.2d KOESTER, Plaintiff-Respon- Robert J. Cross-Appellant,
dent KOESTER, Defendant-Appellant M.
Cleo
Cross-Respondent.
No. 12410.
Supreme Court of Idaho.
Nov. 1978. *2 Davison,*
Terry Copple Copple C. & Boise, Copple, for defendant-appellant and cross-respondent. Johnson, Boise,
Byron J. plaintiff-re- spondent cross-appellant. McFADDEN, Justice.
This appeal is from a divorce decree also involving assets, division marital custo- dy, support rights par- and visitation parties ties. Both judgment from a of the district court which modified in part a divorce decree magistrate’s divi- sion. Koester,
Robert and Cleo respondent and appellant respectively, were married in 1963 and two children were born of that mar- riage. 4, 1974, April On the parties sepa- rated and agreement temporari- drafted an ly dividing marital assets and giving custo- dy respondent. the children to After the parties separated, appellant moved from Wisconsin to Nebraska.1 When attempts at failed, reconciliation respondent, who had secured a teaching position Idaho, moved from Wisconsin to prior Idaho and to entry of the Nebraska decree in separate maintenance present action initiated the di- vorce action in the division of the Fourth Judicial District Court. magistrate granted parties2 divorce gave custody of the children to respondent, finding that the children’s best respondent interest dictated that retain cus- 1. While in Nebraska instituted an having jurisdic- ac- unless some other court maintenance, separate tion for subject tion of the matter deter- children, alimony and child from her custody. mined the issue of The decree also husband. This action culminated in an order per alimony. awarded month whereby respondent granted temporary custody, subject appel- to visitation magistrates 2. The court had before it the de- Respondent lant. was authorized to maintain cree in the Nebraska action at the time of trial Boise, Idaho, the children at and the cause was of the Idaho divorce action. custody proceedings July, set for further tody of the The case was re- cumstances could be considered by children. the dis- opened concerning appel- to admit evidence trict court on affidavits. earning capacity
lant’s
and her recent move
In her
before the
affidavit
from Nebraska to Idaho that enabled her to
court, appellant
stated that
maximum visitation
In a
rights.
exercise
the children had moved to Texas after the
opinion
magis-
memorandum
separate
*3
case had been taken under advisement on
rights, granting
trate established visitation
al
appeal
Appellant
to the district court.
appellant
rights
visitation
on alternate
were an at
leged
respondent’s
actions
weekends,
day
holidays,
thirty
and for
tempt
to thwart her
of reasonable
In a
period during school summer vacation.
appellant
financially
visitation and that
opinion
later memorandum
move
Texas in order to visit
unable to
to
costs,
parties’
claims for
at-
determined
Appellant
request
the children.
therefore
fees, alimony, property settlement
torney
modify
that the district court either
ed
Costs,
support payments.
rights and child
her
custody
change
award of
or
for
attorney
appellant’s request
fees and
stated in his affidavit
rights. Respondent
were denied. The
alimony
accept
that he had moved to Texas to
4, 1974,
April
property set-
that the
found
responsible teaching position
more
of en
binding,
agreement was not
but
tlement
professional standing
hanced
and that the
of marital assets and liabili-
parties’ division
deprive appel
made to
move had not been
if
approximate
would
a fair allocation
ties
Respondent
privileges.
lant of visitation
reimburse-
were awarded a
scope
changed
court’s
of review
from an
Concerning
sup-
claims for child
ment.
83(u)(l) to a
appellate review under I.R.C.P.
found:
port,
83(u)(2).
trial de novo under I.R.C.P.
Al
[appellant] has the finan-
It is clear that
though the resolution of this issue is not
ability
contribute to the
cial
to
83(u)(2),
and is
[respon-
explicitly
It is also clear that
stated
I.R.C.P.
the children.
support the chil-
ability
impression,
has the
to
therefore a matter of first
we
dent]
[appel-
from
without a contribution
dren
court choosesto
hold that where the district
equivalen-
While it is not direct
appellate
as an
review and
appeal
lant].
handle an
the child
relieving [appellant] from
cy,
to hear additional evidence on
then elects
obligation will at least
issues,
one or more
those issues affected
contribu-
for the
compensate [appellant]
if
the additional evidence shall be treated as
[respondent’s] edu-
she made toward
tion
words,
involving a trial de novo. In other
Therefore,
claim
[respondent’s]
cation.
to the extent that the new evidence affects
....
Should
support is denied
the district
magistrate,
the decision of the
pro-
dictate this
needs of the children
a trial court. Where the
court shall act as
subject
further court order.
vision is
to
evidence admitted
the district
additional
added.)
(Emphasis
does not affect the determination
court
magistrate’s de-
appealed the
Appellant
shall act
magistrate,
the district court
Respon-
court.
to the district
termination
appellate
as an
court.
however,
magis-
not,
contest
dent did
to this court from
appeal
On further
dis-
appeal, the
On
trate’s determination.
court
of the district
the determination
case based on
heard the
trict court
presented pur
where additional evidence
divi-
record from
appellate
83(u)(2),
new matters
suant to I.R.C.P.
under advisement.
took the matter
sion and
determination
affecting
magistrates
merits and
on the
to a determination
Prior
according
by this court
will be scrutinized
advisement, appel-
case was under
while the
of review as other
the same standard
rec-
appellate
supplement
moved to
lant
However,
the district court.
appeals from
change of circum-
to reflect a material
ord
court’s review of
where the district
appeal.
had occurred since
stances
is not affected
magistrate’s determination
the motion
granted
The district court
to the district
presented
the new matters
record and
appellate
supplement
will
court
our review of the district
in cir-
parties stipulated
though
respondent,
be as
the district court was an
inter-
cross-appeals
mediate appellate court.
claiming the
district
erred
award-
ing
custody
of the
for the
children
error
Appellant assigns
to award
months,
three summer
and in
granting
ing
respondent,
custody
children
rights during
her visitation
the Christmas
mag
determination of the
challenging this
However,
vacation.
the district court found
as well
istrate’s court
as that
the district
permanent change
court.
material and
of cir-
She claims that both courts abused
denying
their discretion
continuous
resulting
cumstances
from respondent’s de-
dis
of the children.
Texas,
parture to
place
took
sum-
putes,
awarding
of minor
following
mer
entry
decree and while
within the
rests
sound discretion
the ease was on
to the
court.
the trial
and will not
upset
parents
The district court found that both
appeal absent an abuse of discretion.
persons
were
proper
fit and
to have
McNett,
McNett v.
P.2d
Idaho
*4
of the children and that the distances in-
(1972);
Saviers,
1059
Saviers v.
92 Idaho
volved made visitation with
the
117,
(1968); Bryant
268
v. Bryant,
438 P.2d
appellant.
difficult for
Based
this sub-
on
76,
92
(1968).
Idaho
Id. at 626-27. tal assets liabilities and should have involved ina- appellant’s the distances awarded her alimony payments. This court effectively bility to exercise visitation initially involved, notes that the assets hav- merely division of rights, custody instead ing acquired been in either Wisconsin or increased granting was while Nebraska were still mar- practical No solution. error was committed ried, are not community property assets. dividing custody the district Nevertheless, under the laws of either state Accordingly, judgment this case. is equitably the court directed to divide modifying custody district court is af- assets, personal, marital whether real or as firmed. just equitable.3 material, permanent Based on the magistrate adjusted The par circumstances, and substantial ties’ division of assets and marital liabilities court also properly the district determined $1,500 awarded an additional respondent’s child obligation reimbursement. ap denied appellant’s the time of the chil claim pellant’s alimony, finding that no dren. The did not address this further necessary. allowance was These origi because continuous was issue determinations were affirmed the dis respondent. Based on the nally awarded Appellant trict court. failed to show an evidence before the district court additional discretion, abuse of in the absence of which custody, the dis requiring modification of the decision as affirmed required to determine re trict court the district court must be and is af *5 support obligation, changed spondent’s child firmed. It should out that pointed be if the and of travel ex rights allocation visitation dictate, children’s future the appel needs and exercising in visitation penses incurred may still required lant be to furnish sup magistrate Although the rights. custodial port. Support rights are the payments contribute to appellant could that found children, parents. not of the support, the children’s ward Respondent assigns error to the respondent was able to only that found court’s appellant district award of contribution children without support portion attorney as her fees occasioned re parent. Child the other from by litigation. this in This was effect a custody of during appellant’s quirements magistrate’s reversal of the issue determination an properly was therefore children appellant any receive that should not attor the addi court the district presented to attorney The ney fees. award of fees is change of circum showiiig a evidence tional discretionary. de magistrate’s I.C. 32-704. Heidemann occurring § after the stances Heidemann, 602, in distances v. 96 Idaho Similarly, termination. Adams, in (1974); 113, incurred v. Idaho to be Adams 93 456 added costs and the volved that required (1969). rights hearing visitation P.2d 757 In the before the exercising these and resolve magistrate, appellant address testified that she court the district mag debt, Considering $2,000 the record come to in she had Idaho issues. that by the supplemented as she was hearing, division unem istrate’s to attend before introduced evidence employment. seeking additional and was ployed not err did court, district court mag district effect that the court found in district appel awarding in discretion its or abuse had abused his discretion in not istrate pe payments lant child awarding something attorney as fees. children, defining custody riod of opinion memorandum its transporta and stated responsibilities. tion mother The fact defendant had place from Ne- change her of residence also maintains Appellant in liti- participate to Idaho to this mari- braska unjust division made Lacey Lacey, (1973); 45 247.26; 168 v. Wis.2d 42- N.W.2d § Neb.Rev.Stat. § Wis.Stat. 3. See 378, (1970). 173 N.W.2d Bliven, 209 365; Neb. Bliven gation and the difference in the sidering relative distances expense involved and in- plaintiff income of the and defendant volved something and it’s not that can be plaintiff leads me to the ought conclusion resolved in the might, usual fashion that it pay portion at least of defendant’s alternate weekends or the like.” Thereaft- attorney litiga- fees occasioned er, the appellant mother did in fact move to tion. Boise and problems hence the of distance expense of travel did not arise. How- It is the conclusion of this court that the ever, court, my in judgment, district court modifying did not err in clearly recognized possible existence of judgment court insofar stated, problems clearly future “should attorney as the award of fees is concerned. party either move from the Boise area the Affirmed; no costs allowed. terms of visitation shall be reviewed appropriate modification.” BAKES, JJ., DONALDSON and concur. Thereafter, to the district SHEPARD, Justice, concurring Chief in of custody was entered. dissenting part. This albeit the district court affirmed the I concur in much of the majority opinion, magistrate decision insofar as it found that thereof, portions but as to two I must dis- the best interest of the required sent. proceeding After the abortive in Ne- that the custody of the children placed be braska, present action was instituted in respondent Likewise, father. on appeal the courts of Idaho. After an extensive Court, to this the majority opinion affirms hearing thereon which both the finding that the best interest of the present were personally and children requires their custody placed be extensively, testified that court also deter- with the respondent Thus, father. notwith- mined that the best interest of the children standing finding of the magistrate as to required that placed their the best interest of the the custody respondent father. The reasons for the de- during the summer months placed has been are, cisions of those courts my judgment, with appellant mother. If such action had amply supported by the evidence in the been by magistrate court, taken I would case. Whether it be found in the *6 case, affirm. In however, the instant I feel past psychiatric problems, mother’s the fact that the district solely on a cold rec- that she family left the and her children for amplified by affidavits, ord was in no better period extended of time with attempt no position to make that finding of fact than to contact them for some months thereaft- would my this Court. judgment, that er, whether it be she refused to return decision fact, should be made the trier of following children a period, visitation who, case, in the instant was the magis- whether it be that she twice unsuccessfully trate. I would reverse the decision of the attempted to kidnap the children and re- district court in regard and remand the Idaho, move them from the State of wheth- matter for further proceedings in mag- er it be what could be described as her istrate court in questionable children; accordance with attitude the final toward the decree of the magistrate all these factors are wherein he somewhat beside the indi- cated point, an intent to except sustain, petition entertain a they my judg- ment, the modification as to custodial decision of visitation magis- in the trate court. event that either of parties left the Boise area.
It should be noted that Also, was concerned as to the I must privileges dissent as to the majority’s since, of the noncustodial parent affirmance at of the district court decision re- hearing matter, initial lating the appellant to child support payments to the mother had not then moved to Boise. during The mother summer visitation-custody noted, “each party period has en- when the children are with their gaged in abuse of tactics to posses- secure My mother. reading of the record would sion of the noted, children.” He also “con- indicate father had a approval dissent from the Court’s of approximately a lower pay of
net take home he was during time that which allotted the wife per month determination find no indication $1,500 in Boise. I employed of pittance as her share in the pay his net take home as to what education, the record doing so not husband’s position in accepted a new when he became asset, of of that but basis the value rather higher. Texas, it was somewhat other than required on the basis that she would not be appellant’s as to the is not clear The record help support yet leaving but to situation, was a other than she financial possibility might yet that she open the nurse, capable of and held registered was support. It is an required pay to child 1975, approximately paying, positions bargain. yet, is unjust Worse it a bad hour, pay for plus National Guard per $5.00 precedent. In no event should a trial court responsibility to duty. She had weekend instance, ap- in the first or this Court on As the ma- support only herself. noted peal, approve property make or de- ever that she had it is not contested but jority, is termination which intertwined with of ability support contribute to the to parental obligations support of for minor during they time that were children disposition children. The should property however, father, of their be retried. Rather forgiven. duty of aspect case, one other of this I feel On is case what sauce for in the instant clearly, remark, perhaps in the na- constrained goose is, different color a horse here ture a caveat. The since, are time that the children found: mother, required father is with their equity, it support. parties If such be III. . . provide . That both are perhaps This is type care, new and novel. both proper people fit and to have the hypotheti- a converse best demonstrated control of said minor custody of two having the cal. If a mother parties. raising, housing, feed- children was young IV. That both children of minor clothing the children with no finan- ing and adjusted well chil- happy, are who was shown to help cial from the father dren. That Plaintiff has had contribute, and the fa- ability have the and control the two children and minor visitation- sought gained extended ther comfortable, lov- provided that he during the summer months ing home for these children. dur- sought child from the mother V. That it would be detrimental time, period of we would undoubt- ing that best interests of these the welfare and I to see edly laugh out of court. fail him two minor children to remove them from applied should be at why a different rule relationships patterns the established sexual merely at because the the case bar they have been accustomed to here here reversed. roles are *7 Boise, comparing in That after Idaho. party how each would serve the welfare BISTLINE, Justice, and concurring dis- children, and best interests of these minor senting. the children’s the evidence shows holding that the district I in the concur best and welfare will served interest custody child modified the judge properly having in the custody remain Plaintiff. mother custo- so as to award the provisions (Emphasis supplied.) during dy of the summer. finding both judge properly provision Obviously, also made trial support the children help the father for assum- the father and mother suitable that time. proceeded to favor the father ing custody, had from custody, because he had their agree with the Court’s I am unable which then flowed the belief that it would disposition child approval of a the children’s rou- change be detrimental to marital the award of which is related to ac- tine environment. This is not an and payments for the are assets. Child reaching children, I a trial court ceptable factor parents. of not benefit consideration shown to her contention that that issue custody. places It of child award being proceed- plan treated as a of a well-conceived of she was the victim posture in the In a custody. of the modification ing “turning years for her out” after 12 for has al- proceeding, custody modification and marriage property, sans —sans issue, liti- placed fully ready been once educat- pittance supporting with a for decided; seeking a party gated, ing reading A of the father’s her husband. bur- very carries the difficult modification day testimony reveals that almost from in circumstanc- establishing change den of and the birth of the chil- marriage es, place has taken since which dren, he found his wife to be an insuffera- adjudication. a burden cannot Such prior mother, housewife, incompetent ble who, on enter- placed parent on a fairly be poor provider. keep He contrived to litigation, divorce separation into a or ing himself, however, until thoughts these children, acquiesces in the the interests of hand, degree his was in at which time he assuming temporary custody. parent other marriage was over. advised her that advantage parent in one Creating such an capable being read as The evidence is other, tends to proposition as this over the sustaining her contention. The do, intensifying the hostili- only can lead otherwise, might per- have concluded custody. battles over to court ty attendant so, haps properly whereupon this Court losers? The innocent are the ultimate Who findings. by supported would be bound children, of course. Here, however, her contentions have re- Henceforth, deserv- fathers and mothers recognition ceived no or discussion in the would custody, separation who on ing of below, nor in this decisions of the courts voluntarily quar- move to other ordinarily Such, improper taken with the Court. processed the divorce action ters while weighting temporary custody, clearly re- courts, recognize must the con- through the a retrial of the issue. quires tempo- voluntary surrender sequences; only parent Finally, to the other is not neither trial nor this rary custody, but prejudice a claim for going paid any Court has heed to certain evidence disadvantage the exact place them at teaching in this case and the of Thurman v. It parent seeking modification. attends Thurman, (1952). 73 Idaho and I am both way, never been that of let- Documentary evidence in the form ap- see the Court and startled to surprised strong- from the children to the mother ters Custody hereaf- prove procedure. of such a father, having ly tends to establish that the pre- will have to be battled out at ter unopposed opportunity, poisoned stages proceeding, of the divorce liminary against minds of little children susceptible in exacerbation of only and it can result speak The letters their own mother. which, immediate di- absent controversies themselves. confrontations, might work themselves rect shortly separation, Where after the out. girls little wrote: should be retried The issue of one prior directions that with Mommy, Dear byor court order voluntarily either parent, got Daddy I a A on the test brout Home. proper is not a summary proceedings, I LOVE YOU!!!!! making the final determi- consideration you God loves too. is at trial that both at trial. It nation Daughter Mary Love Your *8 present the evidence properly should Hi, Mommy contentions. supports respective their will work approved today contrary rule learning The how to In School we’ve been minor children whatever to the no benefit words, my my you I write name write can disputes. parental in involved you I Love a whole lot. I see. Anne. having pop right corn now. I wish am disappointed that mother here will be The Today in Dubu- you were here with me. progressed custody has fight good any gue without we had a time. tiers of court through three year later the following is the Valentine’s upon just rest such a single theory. Absent Day message girls the little sent their any explanation by the father as to how mother: such letters were written by the girls little mother, to their and absent any excuse on Hellow, his for not having guided suscep- their Why you didn’t send us our stuff. I am tible proper channels, minds in I would hold very happy daddy not about sending you the award to the father is not
money. you I wish daddy wouldn’t make contrary sustained but is to the evidence. you money send because now we mite get go not to the red wood forest or
the ocean.
Love Mary and Anne though get go
P.S. Even we mite not stay
on vacation we want to daddy. with We would rather have daddy
PPSS. money than all the Today the world. going very to be a happy Birthday for Beal, Frank BEAL and Iva Pearl hus- Mary because we came Daddy. with wife, Plaintiffs-Appellants, band and apparently passed trial court the let- insignificant, ters off as although on what Thurman, I placing basis cannot see. In MARS LARSEN RANCH CORPORA- mother,
the children back with their TION, INC., Foreign Corporation, Dix- spoke Court thus: on Christensen and Florence Christen- The acts and conduct of the custodial sen, wife, Heger- husband and William parent, resulting the alienation of the Hegerhorst, horst and Valere husband love and affection which children natural- wife, Kesler, and Grant S. Defend- ly have for parent, the other is a vital and ants-Respondents. very serious detriment to the welfare of No. 12397. grounds such children and is for modifica- tion respect of the decree with to such Supreme Court of Idaho. custody. 29,
Nov. 1978. A review of the entire record as to the hearing
evidence adduced at the satisfies father, together that the Court with mother, great
his has exerted influence
upon youngsters these very short time, otherwise,
period through fear or
which is not for the best interest and
welfare of the it
shaken their confidence in and their love
and affection for their mother. 128, 129,
Id. at
this is not to that on the basis of these
letters the trial court should have awarded if, to the mother. It say is to demonstrate,
as these letters tend to these being
little children were against influenced mother, things equal.
their all were not At least, very the mother was entitled to
know consideration that this evidence
was accorded the trial court. As in
Thurman, party’s presentation entire may