*1 proliferation factors, With this and the guidance
lack of any from this Court as to
how weighted each is be and whether or applicable every case,
not each is it is no
wonder produced has Commission
some results recent of troublesome nature.
Further, Legislature after eliminated the
independent test, contractor this Court has it through
reestablished independently
established prong. Legis- business Had the case,
lature this to simply wished be could particular so stated. Of interest is the that, years,
fact over the the first factor
noted in National Trailer —“whether carrying independent
contractor is
business” —which was of a one number factors to be determining considered
whether person independent was an con-
tractor, now morphed indepen- has into the is,
dent contractor test. single That
factor in National Trailer has now swallowed
the independent contractor test become but, just one 15 factors. Given this
history, if one could understand the Commis-
sion were somewhat befuddled determin-
ing person engaged whether a in an inde-
pendently established business. The Court up
should developing clear the matter
common test that be consistently sense can
applied.
Pamela BUNCE, Jr., Stanley
John L. W.
Welsh, Defendants-Respondents.
No. 33996. Idaho,
Supreme Court of
Boise, May 2008 Term.
June *2 Boise, Piotrowski, appel-
Herzfeld for & lant. LLP, Boise, respon- Humphrey,
Cosho dents.
EISMANN, Chief Justice. is an dismiss- ing aside an order set modifying custody provisions of a divorce the court and decree awarding attorney to Idaho § 12-121. affirm the Code We the district court and award fees on appeal.
I. AND PROCEDURAL FACTS HISTORY Custody Proceedings Child (Mom) (Dad) and Pamela Rae John Bunce 5,1985, during on October were married marriage had four children: Kel- their Devon, sey, Wyatt, Josephine. In born, family were after children Bay in California to moved from the Area Idaho, but Dad commuted to San Francisco for work each week. separat- March Dad and Mom
ed, action in Califor- and Mom filed divorce entered nia. custody of agreement resolving their into primary children. given special Mom was report master issued a final making given specified periods and Dad was for an recommendations order to re- disputes of time solve the physical custody. remaining when he between the would parties. divorce October who decree California action *3 presided parties’ had 8, over the divorce ultimately January was on entered 1999. in California an order relinquishing entered 2000, In July filed Mom the California jurisdiction over the children. On October Idaho, seeking in to establish it as 23, 2003, Dad custody instituted Idaho an Idaho pursuant to the Enforce- proceedings by filing motion the Idaho Act, Foreign ment of Judgments court implement the visitation schedule §§ 10-1301 et seq., and she filed a motion to special recommended master. One modify custody. parte She obtained an ex later, seeking week Mom filed a motion restraining preventing Dad from exer- implement schedule, her proposed visitation cising daughter visitation Joseph- with their her move California. hearing, ine. After a the restraining order custody proceedings The Idaho were tried quashed was petition modify and cus- in August closing arguments, 2004. After tody ground was dismissed on that the 25, August 2004, orally the trial court on jurisdiction Idaho court lacked under the ruled that primari- the children would reside provisions Custody of the Uniform Child Ju- ly County, with Dad in Blaine Idaho. The Act, §§ risdiction and Enforcement I.C. 32- parties court also asked the to submit their seq., 11-101 et because of the California argument visitation and schedule exclusive, continuing jurisdiction. court’s September 24, on support child before 2004. Mom still permit refused to Dad to exercise 2004, 28, August parties’ On sixteen- visitation Josephine, with and Dad had to Devon, year-old daughter, was scheduled to obtain an order from the California court in fly back to Idaho. Mom had Devon re- order to do so. flight Angeles, booked on a to Los where 2002, In June Dad relocated to Blaine picked Mom took up her her to Malibu. County, Idaho, county the same in which 2004, 1, through counsel, her Mom resided children. with the asking Mom filed a motion court to re- litigating continued issues Califor- supported custody. consider the motion She stipulation, nia. Pursuant their Idaho stated, with her which affidavit in “She attorney appointed the California Ketchum, [Devon] refuses to return Idaho. special given court as a master and was Ketchum, I refuse to force her to return to authority over various custodial issues. Be- Idaho.” January August tween 9 and the court entered California court six entered orders based requiring an order toMom return Devon to upon reports special from the master at- physical custody by p.m. Dad’s 5:00 the fol- tempting parties’ ongoing to resolve the con- lowing day. provided The order also that a regarding custody flicts and visitation. separate day. follow the next would July, separate Dad learned that Mom had The order entered August legal custody moved back to California. On awarded sole County pending he filed a motion Blaine the children to Dad further order court, parte ex interim order to denied Mom’s motion to recon- keep sider, absolutely “it is children court re- and stated that clear grant ground fused to motion on the to this Court that will not abide [Mom] jurisdic- California exclusive orders of The court noted that still had this Court.” days tion. Four after Dad had enrolled the Mom’s statement in her affidavit she will County, in Blaine to Idaho was direct children school force Devon to return surreptitiously proof to California refuse to follow the took them she would contempt proceed- attempted to school court’s orders. filed enroll them there. Dad Mom, wrangling, ings later them against After some withdrew children but to call Devon were returned to Idaho. because Mom intended motion Defendants’ witness and granted Dad wanted to avoid court district further dismissed trauma to summary judgment her. Dad awarded It also action. On November the court issued its Code $9,840.28pursuant sum of memorandum decision in the custody pro- appealed. timely then § 12-121. ceedings. parties’ daughter, oldest Kel- sey, was at that time enrolled in school in APPEAL
Colorado, ON II. ISSUES less than five months she age attain of majority. would She want- granting err court district 1. Did ed to complete schooling in Colorado. summary judgment? Defendants’ approved, did not. The court awarding err court the district Did *4 in Kelsey’s found it would be best interests to Idaho Code Dad attorney fees complete schooling to her in Colorado. It § 12-121? ordered that both would continue to attorney joint Is award of custody have of 3. Dad entitled to an Kelsey, must § 12- appeal pursuant regarding parental honor her wishes on to contact. Devon, respect Wyatt, With to and Joseph- 121? ine, the court awarded Dad their primary
physical custody, having specified with Mom III. ANALYSIS 27, 2004, periods of On December visitation. Granting Err in A. Did the District Court the court amending entered order the Summary for the Defendants’ Motion custody provisions child of the divorce decree Judgment? in accordance with the memorandum deci- sion. 60(b) of Idaho Rules Rule the of Civil that courts recognizes Procedure
Independent Action to Set judgment the power inherent aside a “to set Judgment Aside upon “The ‘fraud fraud term the court.” upon 1, 2005, the court’ than in September contemplates On more Mom filed this ac- se, and, Idaho, pro terparty misconduct, has been seeking tion aside all set orders require misrep held perjury entered in or custody during the more than peri- the Compton resentation a party od from or witness.” September through January 2004 328, 2005, 334, v. Compton, 101 upon because of fraud 1175, (1980). only 1181 court. It “will be found Those orders were: the order en- presence 1, ‘tampering of 2004, such with the September ordering tered on justice’ suggest of as to ‘a administration custody; return Devon to Dad’s the order wrong 2, 2004, against up pro set entered on institutions September awarding Dad ” safeguard public.’ (quoting tect and Id. physical custody sole of the chil- Empire Hazel-Atlas court; dren until Glass Co. further order of the Hartford Co., 238, 246, 997, 1001, 322 U.S. 64 S.Ct. 88 memorandum and order on entered (1944)). 1250, 29, 2004; party L.Ed. 1255-56 as “The November and the order filed De- serting a claim of on the court must fraud amending cember the child plan establish that unconscionable or provisions divorce decree. Mom improperly scheme was used to influence the attorney, named as defendants and his 26, prevented decision and such acts Stanley 2005, court’s September On Welsh. losing party fully fairly present from represent counsel retained her in Am.Jur.2d, ing its case or action. defense.” this Five months later her Judgments § law, suspended practicing and Mom then attorney. retained her current this ease is the issue
Because Mom has abandoned on order entered on which December allegations some of custody provisions she made the trial the child amended court, allegations specific her of fraud upon divorce decree accordance with memo- court will be in more prior discussed detail randum decision. The orders analysis portion opinion. child proceeding, including the order 1, September 2004, entered on is- attend that orientation. were interloc- could 1, utory orders, judgments. not Therefore, sued the it, “Separate Mom must wrote on p.m. show at 4:28 there was upon fraud Copies court justify fax on would order to follow setting aside the 9/2/04.” Welsh, Ms. entered faxed Mr. on December the order were 2004. On Monson, appeal, Mom bases claim and Mr. Werth. her upon fraud upon the court the circumstances surround- p.m. at 4:30 ing the issuance of the order entered on reconsideration and her filed motion for September 1, 2004, Dad’s with- why supporting explaining in detail affidavit drawal of his to hold Mom allowed Devon should be to remain with contempt. She must show affidavit, Mom Malibu. In Mom stat- there was respect the court with ed, to return to Ket- “She refuses [Devon] events, to those two also show but she must chum, to force her to return I refuse justifies setting aside the Ketehum, Idaho.” later entered on 2004. December sua September 1, The order entered hearing issued sponte without a an order After the day two and trial in one-half denying Mom’s motion reconsideration *5 custody proceedings, Mom’s Dana granting physical Dad sole and Monson sent judge August a letter dated custody Devon, Wyatt, of and Josie. In letter, 2004. In the which was to faxed order, judge following: wrote the Welsh, Mr. she stated that had a dis- trial, At the conclusion Court agreement as judge to whether the had stat- at- sought assistance of the after the ed trial that Mom have the could arrange- a tempting to out visitation work children in began. her until school from apparent correspon- It is ment. clarify asked judge She that matter. to dence received from counsel Thereafter, there were series of letters to a cooperation communication and level judge and Ms. Mr. Monson Welsh be parties in case this continues regarding the issue Dad’s inabili- absolutely nonexistent. It is also clear ty to contact Devon while she was at her Rae will not abide this Court that Pamela In Mom’s. her letter dated by Court. statement orders this August by Ms. Monson concluded 5 of Ms. Rae’s paragraph contained in writing: stating that “I latest refuse affidavit trial, Finally, as at I will mentioned be Ketehum, to return to force her [Devon] out of beginning town and late unavailable Idaho” that she will refuse proof is direct tomorrow until 2004. Al- of this Court. De- to follow the order though I Doug my Werth cover spite dear order that Devon this Court’s absence, I am not if he will certain be father, de- her Ms. Rae shall reside with Rather, covering on this matter. believe a responsibility her accept clines to will, Ms. Rae counsel. have other She sup- parent by stating that she will not through person, such inform Court and decision. has been port this Court’s She Mr. representation Welsh of such as neces- of court contempt held in California sitated. twice, by is this Court. It and sanctioned judge that she will do what clear to this permitted Mom had been to exercise visi- she alone thinks she she wants because tation with Devon until she was to start best her children. knows what 1, Mr. school. On Welsh will This has ordered Devon Court judge, copy a letter to the with a sent to Ms. County and attend school reside in Blaine Monson, stating that school orienta- Devon’s there. Friday, tion would be on opinion, this asking sign proposed a this final memorandum has how Pamela Rae have Devon Court will address requiring Mom to back
order the decisions County by p.m. attempted 5:00 to influence in Blaine Dad’s this Court does these children. Thursday, September so While by Magistrate in this parent County for a the Blaine inappropriate consider it case. solicit the of children as to where reside,
they wish to the children’s decision hereby It is ordered: Rae controlling. is not Pamela thinks oth- wrong. erwise. She is This Court finds 2) August Ms. Rae told this representations that Pamela Rae’s as to permit did not Court that her “schedule is not what the children want credible evi- this, Despite visitation with the children.” totality given of the evidence dence arranged this Ms. Rae Court believes that this Court heard trial. Pursuant Malibu, go knowing for Devon to full 7(b)(3) Rule I.R.C.P. Court its dis- well that she did not intend to return her argument hear oral or cretion declines to pattern County. to Blaine of conduct Her on this issue. receive additional evidence directly parallels during conduct (Parenthetical emphasis original.) years ago. “Josie incident” several ultimately proceedings had to initiate Court that Pamela Rae cannot finds be the return California to obtain of Devon. trusted to follow orders to return Court required. Accordingly, the children as this contends that constituted fraud physical rights Pamela visitation Rae’s Mr. the court because Welsh submitted Devon, Wyatt suspend- with Josie are proposed a letter rather than ed until further order this Court. The he motion and because did so when he specifically Court orders that also Pamela knew Ms. be out of Monson would town and Rae shall have no contact with copies would not receive the he mailed her. Devon, Wyatt pending or Josie further argument Mom’s constitutes fraud (Emphasis order of in origi- the Court. upon the court is ridiculous. She cannot nal.) submitting explain how *6 by prevented letter rather than motion alleges, Mom “The effect Defendants fully fairly presenting her case. request Bunce’s and Welsh’s submission of Likewise, mailing a letter to counsel who had deny for an order via letter to Ms. Rae was stated there would covering be someone in opportunity to contest the motion and to her absence does not even come close to Magistrate ensure that Stoker issued an or- constituting upon fraud the court. der purely upon rep- based Mr. Welsh’s own only representations resentations.” The More importantly, Mom Sep- knew before by one-page made his Mr. Welsh in letter tember that she was to have Devon that proposed were relevant order custody back in Dad’s in time for school. were: The sponte court’s order sua Sep- issued on arranged I Rae understand that Ms. tember and its later memorandum fly Devon to to Malibu..... modifying decision and order were event, In any I that understand Devon’s by recalcitrance, by influenced Mom’s not Friday. school this orientation is For that Mr. sending proposed Welsh by order any dispute, reason and to avoid I have letter rather than by mailing enclosed herewith a Order which copy to when Ms. Monson she was out of I request sign the court so that Devon is town. As the September court stated its Friday. returned for the on orientation order: arrange phone happy would be to for a light In unequivocal of Ms. Rae’s state- conference if with the court the court so quoted ment [“I above refuse to force her desires. Ketehum, Idaho”], [Devon] return following this Court enters orders: Mom does not of the contend that above- quoted representations untrue. were 1) Pamela Rae’s motion for reconsidera- ruling tion of the oral August Court’s on of the motion for con withdrawal 25, 29, tempt. granted part 2004 is September denied in Dad filed a (2) part. supercedes This order all motion Mom held in con [sic] have temporary tempt September written and oral on orders issued of the order entered alleged summary judg that argument 2004. He Mom had violated on the motion for that enrolling by in Califor that Mom to arrive in Devon school ment caused Devon by failing to Dad’s nia and to return her southern California and that she enrolled custody.1 contempt there.2 that Mom motion for was Devon school He stated quota hearing only disputes portion that scheduled October of the above judge Dad later the motion when that she “refused withdrew tion where wrote custody in Ida stated that she would have Devon testi to return to Jack’s [Devon] proceedings. argues judge have fy during contempt ho.” Mom that the must upon that his of the motion Dad and Mr. contends withdrawal relied misstatements making Dad’s finding the court because Welsh in this and that constitutes contempt pre to counter deprived opportunity of the withdrawal of his motion for supporting disputing finding. in his vented her from the inaccuracies contained judge in the custo affidavits because the The district court the rec- concluded from dy read and relied proceedings judge finding that the made ord making when upon the inaccuracies conduct, upon any alleged Mom’s findings deci the factual in his memorandum by Dad misstatement or Mr. Welsh. sion. judge issued sua alleged that Mom contempt The motion for custody. interim sponte an order on enrolling Devon had violated court orders judge information available to by failing to re- in California and school regarding keeping time Devon custody. In memoran- turn her to Dad’s his sup- was Mom’s Malibu affidavit submitted decision, custody pro- dum motion for port of her reconsideration. ceedings why wrote: Devon explained affidavit she stated, “She should remain Malibu trial, following an addi- one week Within Ketchum, I re- to return to refuses parties. conflict between the tional arose Ketchum, Ida- her to fuse to force return new conflict and the
The extent above-quoted portions ho.” As shown parties is set raised between the issues order, relied of the forth in the Court’s order dated prior conduct upon Mom’s affidavit and in detail repeated 2004 and will not be had re- concluding in that that Mom say that Pamela herein. Suffice it return Devon to Jack’s fused to Malibu, Cali- caused Devon be taken *7 Idaho. fornia, apparently school enrolled there, despite and direct Court’s no argues that if there was even contrary, return her to the refused to showing judge in the custo- that the evidence Court, custody in on its
Jack’s in- any allegedly dy proceedings upon relied motion, inter- summarily granted Jack own affidavits, she information in Dad’s accurate legal of all im sole and in her to all reasonable inferences is entitled Pamela’s visi- suspended the children summary defending motion for when favor (Emphasis the children. tation with purposes the insists that for judgment. She original.) court summary the district judge the that how the this case should inferred example this as Mom cites an upon al- custody proceedings relied upon relied judge proceedings the affidavits submit- inaccuracies Dad’s by leged Dad and Mr. alleged misstatements rather support contempt of the during oral ted in attorney admitted Her Welsh. August 28 Devon among PIOTROWSKI: On provided, 2 other MR. 1. The Rae airplane that Ms. "Devon, an with a ticket boarded are ... things, Wyatt, and Josie ... Yes, it’s purchased to southern California. had County” attend school Blaine in southern she caused her to arrive true that County at shall be returned to Blaine “Devon California. expense.” Pamela Rae’s true, also, Okay. And it's THE COURT: there? apparently in school enrolled her she following argument, dia- During oral 2. indeed, did, enroll She MR. PIOTROWSKI: logue occurred: there. her in school upon prior affidavit to refrain from than Mom’s conduct. is not a license for words, argues In other that the district bringing until an motions after judge court should have inferred that the merits, independent and an action for custody proceedings misstated the basis plaintiff may fraud be barred where the findings. of his or, fact, ample opportunity had did underlying raise the fraud This case would have tried been action. court, jury. not to a an “When dismissing The district court did not err in jury, will be tried the court before without a this action. the trial court as the trier of fact is entitled probable to arrive at the most inferences B. Did the District Court Err in Award- upon undisputed based properly evidence Attorney ing Dad Fees Pursuant grant summary before § 12-121? despite possibility conflicting inferences.” The district awarded Dad at Estates, Huckleberry Sha wver v. torney § 12- to Idaho Code L.L.C., 354, 360-61, 140 Idaho 93 P.3d 121. “An award of fees under Ida (2004). 691-92 The district was not § right ho Code 12-121 is not a matter of required to argued by draw the inference prevailing party, appropriate only but is any Mom. She has failed to make reasonable court, discretion, when its is left with argument as to Dad withdrawing how abiding brought, belief the case was contempt prevented motion for fully her from pursued, frivolously, or defended unreason fairly presenting her case. ably, or without foundation.” McGrew v. simply There is no factual basis for McGrew, 139 Idaho 82 P.3d allegations Mom’s upon of fraud the court. (2003). a trial “We review court’s award of addition, allegedly wrongful all of the con attorney fees under the statute under duct Dad and Mr. Welsh was known abuse-of-discretion standard.” Thomas prior judge’s to the issuance of the Madsen, 142 Idaho opinion memorandum on November Had there been inaccuracies in of Dad’s The district court found that Mom’s con- affidavits, Mom could have filed affidavits duct in “suggests improper this lawsuit setting forth her version of what occurred. purpose such as harassment or malicious- Had judge’s memorandum been finding ness.” supported That the evi- information, incorrect Mom could dence. The court also examined each of have filed a motion to findings amend the allegations regarding Mom’s 52(b) pursuant to Rule of the Idaho Rules of court and found that there was either no Civil Procedure. Had there been additional support factual basis no basis to and/or evidence that present, Mom desired to them. although The court decided that prior could have entry judg moved filing initial of this lawsuit not have been re-open ment to the case to take additional *8 unreasonable, frivolous or Mom should have Service, evidence. Davison’s Air Inc. v. through discovery been able to determine Montierth, 119 Idaho that Giving it was. her almost nine months (1991). independent 275 An action to set discovery, to conduct that the court found aside a upon alleged beginning that pur- on June upon the court is not a substitute for actions sued frivolously this case or without founda- that could have been taken in the trial court tion. prejudice to correct allegedly wrongful conduct. As stated 47 Am. The court found that a reasonable total Jur.2d, (2006) (footnotes Judgments § 728 attorney $19,680.56. fee would be The court omitted): divided that fee in half because Mr. Welsh
However, power represented court’s a vacate both himself3 and Dad in this judgment because of a fraud on the court lawsuit and would not be entitled to fees for filing against There is no basis for proper this lawsuit lawsuit and would not be a defendant in party underlying Mr. Welsh. He a was not in the 806 Rather,
representing ney merely himself. The court therefore fees. cited to Court decision, attorney Appeals Dad of of & awarded fees the sum a Court Swanson Setzke, $9,840.28. 774 Henning, Chtd. v. 116 Idaho (Ct.App.1989), P.2d 909 the Court of wherein appeal, Mom did not argues that she held that the Appeals preventing rule awards frivolously. failed pursue this case She has attorney pro litigants fees to included of se to show that the district court abused its litigating pro attorneys se. The Court of awarding pursuant attorney discretion fees decision was Appeals not based § that to Idaho Code 12-121. affirm We but, rath- language question of statute in award. er, public policy As I considerations. noted Barbee: Are the to an C. Defendants Entitled Appeals of that it Court determined Attorney Appeal of Award Fees on lawyer pro would be unfair to a se allow § Pursuant to Idaho 12-121? Code non-lawyer litigant to recover where fees The Defendants seek an award of pro litigants public poli- se could not. attorney appeal pursuant fees on to Idaho cy do into account considerations not take “Attorney § 12-121. can be Code fees non-lawyer pro litigants that do not se appeal only if awarded on under that statute practice have a license to law and are not frivo appeal brought or defended living engaged making in the of business lously, unreasonably, or without foundation.” through practice of law. The Court of Vavold, Downey 166 144 Idaho liti- Appeals lawyer pro indicated that se appeal certainly P.3d 386 time gants do not make disbursements any qualifies. Mom’s was devoid of lawsuit litigation. to their How- devote own basis, legal appeal. factual or as is this We ever, ignores lawyer’s “a the fact that attorney therefore award fees on trade,” time and advice is stock in as so his § 12-121. Be great aptly put lawyer, Abraham himself, representing he cause Mr. Welsh lawyer time to a Lincoln. When devotes attorney is not entitled to of fees. award own, legal action of his either to collect Indiviso, Inc., Bowles v. Pro 132 Idaho account, action, to defend a or other- 142, 148(1999). 377, 973 P.2d wise, attorney may make a dis- funds, attorney does bursement IV. CONCLUSION make a disbursement of merchandise affirm the the district We elsewhere, i.e. his could have been sold respondents award the costs court. We attorney prevails, If the there is no time. attorney appeal, and we award Mr. Bunce provi- language statutory fee appeal. fees on precludes of fees sions an award attorney. Appeals Court BURDICK, Justices W. JONES & Setzke even so far as Swanson went concur. HORTON if state that would make no difference JONES, Justice, part concurring in entity seeking professional J. fees was a dissenting part. indi- corporation, opposed service lawyer thereby corporation, vidual opinion, excepting concur Court’s pro- a de of the permitting piercing facto III.C, part where the Section apply corporation fessional veil to Mr. Welsh Court denies pub- public policy. holding is bad its That v. Pro based on the Court’s Bowles policy perpetuated and should lic not be Inc., Indiviso, P.2d *9 this Court. Barbee, 397, 146 at 663. 143 Idaho P.3d pointed out in v. WMA Secu- As Barbee Inc., rities, (2006), not ana- the Court in Bowles did attorney acting
lyze the issue whether litigant to attor- pro se be entitled case. an action to set aside the