Mills v. Mills

818 P.2d 339, 120 Idaho 635, 1991 Ida. App. LEXIS 192
CourtIdaho Court of Appeals
DecidedSeptember 26, 1991
DocketNo. 18216
StatusPublished
Cited by2 cases

This text of 818 P.2d 339 (Mills v. Mills) is published on Counsel Stack Legal Research, covering Idaho Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mills v. Mills, 818 P.2d 339, 120 Idaho 635, 1991 Ida. App. LEXIS 192 (Idaho Ct. App. 1991).

Opinion

PER CURIAM.

Gordon and Pamela Mills were divorced in Cassia County, Idaho, on July 7, 1977. The decree awarded Pamela custody of the parties’ three minor children, and Gordon was awarded reasonable visitation. In the years following the divorce, Gordon filed several motions to modify the child custody provisions of the divorce decree because of his growing frustration in exercising his visitation rights. None of these motions was successful. Specifically, Gordon appealed to the district court from the denial of his July, 1984, request for modification and from the order granting Pamela’s request for an increase in child support. When the district court, sitting in its appellate capacity, reversed the magistrate’s decision and remanded for the trial court to take more evidence, Pamela filed this appeal.

Pamela claims that the district court reviewed more than the issues Gordon had raised in his appeal from the magistrate’s decision. Pamela argues that the basis for the district court’s reversal and remand, that is, the unrecorded in camera interview of the children and the scope of the evidence, should not have been considered by the district court sua sponte. It is Pamela’s position that, because the district court ruled that the burden of proof issues raised by Gordon were correctly decided by the magistrate, the district court acted beyond its authority in reversing and remanding. We agree for the following reasons.

The scenario in this case is unusual in that the hearing on Gordon’s motion for modification was conducted three years after the date of the motion. Originally set for a hearing on August 3,1984, the motion for modification and the accompanying motion for contempt against Pamela were continued by stipulation of the parties, due to pregnancy complications which Pamela was having. On August 3, 1984, the children were with Gordon as part of his summer visitation, and the continuance was conditioned upon the children remaining in Gordon’s custody pending any hearing on the show cause order.

When Pamela failed to advise Gordon of a date when she would be able to attend a hearing on the motions filed by Gordon, and when she informed Gordon that she intended to register the children in school in Utah, Gordon sought an ex parte order granting to him the temporary custody of the children. A “temporary” ex parte order was signed by the magistrate in order to keep the children in Idaho and to maintain the jurisdiction of the Idaho courts over the children. The September 6, 1984, “temporary” ex parte order was to remain in force until changed by a subsequent order. For reasons unknown, the order was not challenged by Pamela, and the children stayed with Gordon from that date in 1984 through the date of the hearing before the magistrate in August, 1987, during which time Pamela exercised liberal visitation with the children. Finally, a hearing was noticed in August, 1987, to dispose of Gordon’s two motions, which were supported by his affidavit alleging that Pamela had engaged in a pattern of interfering with his visitation, contrary to court orders and agreements between the parties, and which continued through the date of the motion. In July, 1987, Pamela filed a petition to modify the temporary custody established by the ex parte order, requesting that the parties be granted joint custody of the children, with actual physical custody in her, as had been established in the original decree. She also filed a motion to increase child support. For economy’s sake, all of the motions in the case were set for hearing on the same date. At the conclusion of the two-day hearing, the magistrate made findings that the burden of proof on Gordon’s modification request remained on Gordon, and that he had not met his burden. The magistrate rejected Gordon’s argument that the custody under the “temporary” ex parte order had shifted the burden to Pamela to prove a change in circumstances before physical custody of the children could be restored to her. The magistrate entered an order as follows: (1) granting to the parties joint custody, but denying Gordon’s motion for modification of the physical custody of the children, (2) denying Gordon’s motion to find Pamela in [637]*637contempt, (3) terminating the “temporary” ex parte order, and (4) granting Pamela’s request for increased child support.

In its opinion on Gordon’s appeal, the district court affirmed the increase of child support. The court also agreed with the magistrate’s conclusions that the burden of proof on the request to modify physical custody was on Gordon and that he had failed to show a substantial change in circumstances up to the date of the motion which would justify that physical custody be awarded to him. Effectively, the district court affirmed the magistrate’s decision, responding to each of the issues raised by Gordon’s appeal. We, in turn, uphold these rulings of the district court.

However, the district court further ruled sua sponte that the magistrate’s decision should be reversed because of error and remanded with instructions to the magistrate to correct these errors. The district court first advised that a record must be made of any in camera interview with the children, if that interview was to be part of the basis for the magistrate’s decision. In addition, the district court concluded that the magistrate had improperly restricted the evidence that Gordon was allowed to present on the modification. Due to the district court’s determination that the trial court should hear all of the evidence of the events and the circumstances from the date of Gordon’s motion for modification, July 25, 1984, through the date of the hearing, August 19, 1987, the district court vacated the magistrate’s decision and remanded for additional evidence to be taken.

Although the effect of the district court’s opinion was not to change the physical custody of the children from Pamela to Gordon, Pamela appealed the decision of the district court. She seeks reversal of the district court’s remand, which obviously would lead to further consideration of Gordon’s modification request. Gordon did not cross appeal.

Our review of the magistrate’s decision following an interim appeal to the district court is a matter of free review. Robinson v. Joint School District No. 331, 105 Idaho 487, 670 P.2d 894 (1983); Hentges v. Hentges, 115 Idaho 192, 765 P.2d 1094 (Ct. App.1988). We examine the record of the trial court independently of, but with due regard for, the district court sitting as an appellate court. State v. Bitt, 118 Idaho 584, 798 P.2d 43 (1990); Harney v. Weatherby, 116 Idaho 904, 781 P.2d 241 (Ct.App. 1989).

Pamela argues that the reversal by the district court was error in that there was sufficient evidence for the trial court to conclude that the custody of the children should continue as in the original decree. In a divorce action, the modification of an existing decree rests in the sound discretion of the trial court. Chislett v. Cox, 102 Idaho 295, 629 P.2d 691 (1981); Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784 (1963).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Nath
52 P.3d 857 (Idaho Supreme Court, 2002)
Gorski v. Ragains
Court of Appeals of Tennessee, 1999

Cite This Page — Counsel Stack

Bluebook (online)
818 P.2d 339, 120 Idaho 635, 1991 Ida. App. LEXIS 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mills-v-mills-idahoctapp-1991.