JANE DOE 2016 v. JOHN DOE (2016)

APPELLANT'S BRIEF IN SUPPORT OF PETITION FOR REHEARING

I. INTRODUCTION

This matter came before the Supreme Court of Idaho as Supreme Court Docket No, 43920-2016. This Court issued 2016 Opinion No. 121 on November 2, 2016. Appellant now petitions this Court for a rehearing pursuant to Idaho Appellate Rule 42.

II. ISSUES PRESENTED ON PETITION FOR REHEARING

1. Whether this Court erred in holding that the evidence was insufficient to establish that Leslie engaged in alienating behaviors?

2. Whether this Court erred in holding that the facts did not establish a material and substantial change of circumstances?

3. Whether this Court's rulings on alienation and material and substantial changes of circumstances will lead to more litigation?

4. Whether this Court erred by reinstating the First Custody Order, as opposed to remanding this case to the magistrate?

III. ARGUMENT

Decisions regarding child custody are committed to the sound discretion of the magistrate, and the magistrate's decision may be overturned on appeal only for an abuse of discretion. McGriff v. McGriff, 140 Idaho 642, 645 (2004). Unless such discretion is abused, the court's judgment as to custody will not be upset on appeal. Hoskinson v. Hoskinson, 139 Idaho 448, 454 (2003). An 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 a particular custody award or modification. McGriff at 645. This Court reviews a custody decision by asking whether the trial court; (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) reached its decision by an exercise of reason. Hoskinson at 454.

Once a custodial order is entered, the party seeking to modify it must first demonstrate that a material and substantial change of circumstances has occurred since the entry of the last custodial order. Brownson v. Allen, 134 Idaho 60, 62-63 (2000). The party seeking modification has the burden of justifying a change in custody, and although the threshold question is whether a permanent and substantial change in the circumstances has occurred, the paramount concern is the best interest of the children. Id. at 63.

This Court has stated on countless occasions that Appellate courts are not permitted to substitute their own view of the evidence for that of the trial court. McGriff at 645; Levin v. Levin, 122 Idaho 583, 586 (1992); Brownson at 63; Doe v. Doe, 149 Idaho 669, 671 (2010); Nelson v. Nelson, 144 Idaho 710, 713 (2007); and Reed v. Reed, 157 Idaho 705, 710 (2014). It is the responsibility of the trial court to judge the credibility of witnesses and weigh conflicting evidence. Reed at 710. Moreover, in considering findings of fact made by the trial court, the reviewing court must review the evidence in the light most favorable to the party who prevailed at trial. McGriff at 645-646; Pieper v. Pieper, 125 Idaho 667, 669 (Idaho Ct. App. 1994). Further, an award of attorney fees is appropriate if the appellant simply invites the appellate court to second-guess the trial court on conflicting evidence. Doe v. Doe. 149 Idaho 669, 675 (2010); and Reed v. Reed, 137 Idaho 53, 62 (2002).

1. This Court's holding that the evidence was insufficient to establish that Leslie engaged in alienating behavior was incorrect.

This Court found that the magistrate erred when he concluded that Leslie had engaged in alienating behavior. Initially, this Court stated that “the magistrate court cited this principle of law (alienation) and identified several facts that supported the conclusion that Mother engaged in alienating behavior”. See page 10 of the November 2, 2016 Opinion. However, this Court, then, concluded that the evidence was insufficient to conclude that Leslie did in fact engage in alienation. This conclusion should be amended, as to make such a conclusion is to simply second guess the magistrate's conclusion.

Leslie failed to challenge the factual findings of the magistrate. Thus, all of the factual findings must be assumed to be true. Thereafter, the only way to overturn the magistrate's conclusion of alienation, is to determine that the facts found by the magistrate do not rise to the level of alienation, on an abuse of discretion standard. This issue is even more problematic in this case, as there is no “bright line rule” for alienation, which has been established by this Court. Rather, a finding of alienation, is subject to an abuse of discretion standard of review. In other words, based upon the uncontroverted facts, is it reasonable for the magistrate to have concluded that there was alienation? Here, there can be no doubt. The magistrate heard all of the evidence at trial. He witnessed the demeanor of each of the witnesses. He was in a unique position to consider all of the evidence. He saw the affects of Leslie's behaviors on David's relationship with the children. In his Findings of Fact and Conclusions of Law, he outlined all of the facts which he, as the trier of the facts, believed led to a finding of alienation. The only way for this Court to conclude that the magistrate abused his discretion is to second guess the magistrate's conclusion and to re-weigh the evidence, which is not proper, yet that is exactly what has happened in this case.

Certainly, one can disagree with the magistrate's conclusions regarding alienation, however, this is not the standard on appeal. Rather, the appellate court should simply review the conclusion under an abuse of discretion standard, to determine if the magistrate's conclusion was arrived upon through an exercise of reason and whether he acted within the boundaries of his discretion. The magistrate clearly did so in this case. This Court should not substitute its opinion for that of the magistrate, even if it disagrees with the magistrate's decision, which is clearly the case.

The simple fact that this Court went through several of the magistrate's factual findings, which led to his conclusion of alienation, in an attempt to discredit his conclusions, illustrates, that this Court was re-weighing the evidence in an effort to substitute its opinion for that of the magistrate. The effect of this decision is vast. Essentially, this Court addressed several issues related to alienation, and determined, as a matter of law, that they do not amount to alienation. This is illustrated by the following:

a. Idaho Falls move. The magistrate witnessed the adverse effects that the move had on David's joint legal custody rights. Leslie took the children to Idaho Falls to let them pick out which school they would like to attend, without discussing the same with David. She got them excited about a move which she did not bother to discuss with David. Thereafter, she sent a text to the children demeaning David. The magistrate witnessed, first-hand how this affected David's relationship with his children. As to the youngest three children, his relationship was initially damaged, but was repaired, due to David's diligence as a father. Unfortunately, David's relationship, due to the move, was severely damaged in relation to the older two children, which is unfortunate, as he had a very positive relationship with Alison and Emily, before the move. There is no question, that these facts (which were unchallenged) can, and do, lead to a conclusion of alienation.

However, this Court, rather than considering these unchallenged facts, re-weighed the evidence. In particular, this Court found no blame in Leslie's actions related to the Idaho Falls move. In fact, her actions were condoned. This is not proper on appeal.

Further, in re-weighing the evidence, this Court focused solely on the move, itself. However, it is not the move that was the key fact addressed by the magistrate in concluding that Leslie engaged in alienation. Rather, his focus was the way Leslie went about the move. She did not involve David. She got the children's hopes up. She moved, knowing there was an order (Ex Parte Order entered August 13, 2013)¹ that prevented her from doing so. The magistrate found that this type of behavior, was a key factor in the destruction of David's relationship with Alison and Emily. This is a rationale conclusion that is supported by the evidence.

In regard to the move itself, this Court essentially concluded, that it was not a big deal to relocate, with the children, without David's approval. This is evidenced by the following statement: “[requiring Father to drive an additional twenty minutes to Idaho Falls is little additional burden”. See November 2, 2016 Opinion, p. 14. Again, this is simply substituting the appellate court's opinion for that of the magistrate. The magistrate did not believe that the move would have a minimal effect on David as a parent. Specifically, the magistrate stated:

But I just think the kids need to come back to Rexburg and go to school here, and I don't want to change custody one iota. But I want dad to have what he had when I issued by ruling on April․

․

That's what I want to have happen because I think that that's what, that's why I ruled the way I ruled, that's why I gave dad what I gave him. I want that to be sustained.

Tr. (September 3, 2013) p. 120, L. 5-16. Certainly, in some cases, a move to a city thirty minutes (30) minutes away may not be substantial. But in others, it is substantial. That is a decision for the fact finder to make. In this case, the move would have drastically affected David's ability to see and enjoy the children on a daily basis. David had extended weekends ² as well as weeknight visits so that he could stay involved with the children and their schooling. The extra time to drive them to and from school, its corresponding activities and to Leslie's is not only a burden on David's visitation, but also on the children's time. The point is clear. The magistrate had the ability to hear and see, first hand, all of the evidence regarding this issue. His decision related to these affects on the children has simply been discounted and substituted by this Court. The issue about whether or not she could move was not even an issue on appeal. For this Court to state its opinion about Leslie's move is not appropriate, and it further illustrates how the crucial point of the manner in which Leslie's actions associated with this move, damaged the children's relationships with David, was missed by this Court.

b. Discussing legal proceedings. This Court is essentially holding that discussing court proceedings with children (but perhaps just teenagers), is, as a matter of law, not alienation. This is problematic. Once again, in some cases, this may not be alienation, but in others, it may very well be alienation. In this case, the magistrate found that Leslie discussed the following with Alison and Emily: the fact that David was seeking custody, the fact that she was having her deposition taken, the fact that she and David were trying to settle the case, and the fact that this litigation was costing her money. He also found that Leslie discussed parenting decisions with the children related to the 2014 summer visitation issue, and with the magistrate's decision to require the children to move back to Rexburg after the Idaho Falls move. The magistrate then concluded, in this case, that these facts arose to alienation. This is clearly supported as Alison and Emily (the two children with whom Leslie discussed most of these matters) have virtually no relationship with David, and the other three children, still have a relationship with David. The magistrate was in a much better position to judge the effect of discussing these matters with the children on David's relationship with the children, in this case. Surely, this Court is not holding that it is never alienation if a parent speaks to teenaged children about legal proceedings?

e. Alison and Emily. This Court determined that Leslie accommodated and encouraged the children to go on their visits with David. This is in direct contradiction to the factual findings of the magistrate which were not challenged by Leslie. Again, this is another example whereby the evidence was simply re-weighed by the appellate court. The magistrate found that Alison and Emily follow Leslie's rules, and that it was her obligation to ensure that the girls spent time with David. The magistrate also found that Leslie did not believe that weeknight visits were that big of a deal. The magistrate was there to judge the testimony and evidence, regarding the fact that Alison and Emily rarely visit David. None of these facts were challenged. This Court has simply substituted its opinion for that of the magistrate on this issue.

d. Summer of 2014. This Court is essentially holding that a parent cannot be punished for seeking input on custody matters from their children. A hard and fast rule in this regard, is not appropriate. This should be reviewed on a case-by-case basis to determine if there was an abuse of discretion. David already had a strained relationship with Alison and Emily, when Leslie, rather than simply telling the children how the summer of 2014 visitation would be, involved the children in the decision. It is conceded that there are times when involving the children in such a decision can be appropriate. However, this is not that case, as found by the magistrate. This Court should not second guess the magistrate's decision in this regard, especially, when the underlying facts were not challenged by Leslie.

e. Ring ceremony. The magistrate found that Leslie was the reason the children refused to attend her brother's ring ceremony. Why else would the children all be excited to attend, until they knew it was to be attended at Leslie's parent's home? The record is clear that Leslie had told the children negative matters about her parents. This was found to be evidence of alienation.

This Court held that “we unequivocally conclude that the evidence the magistrate court focused on to determine Mother was engaging in alienating behavior is insufficient as a matter of law to establish alienation.” See November 2, 2016 Opinion, p. 13. In other words, as a matter of law, the facts of this case, do not arise to alienation. This is problematic, as there is no clear test for alienation. Rather, the finding of alienation is a discretionary decision for the magistrate. In this case, the magistrate did not abuse his discretion, as he reached his conclusion through an exercise of reason.

It is clear that this Court does not agree with the outcome of this case. However, if the proper standard of review is followed, the magistrate's determination that Leslie engaged in alienation, must be upheld, as the same was not an abuse of discretion.

2. The Court's ruling that the facts did not establish a material and substantial change of circumstances was incorrect.

This Court specifically found that the “remaining facts the court focused on do not demonstrate a material and substantial change in circumstances that warranted a change in custody,” This conclusion was made in direct contradiction to the magistrate's conclusion regarding the finding of material and substantial changes of circumstances, when he stated the following:

There is no question that there had been an ample showing of material and substantial changes in circumstances since the Order was entered based upon the trial held March, 2013. This is illustrated by the following: there have been numerous changes to the summer schedules, Leslie has engaged in alienating behaviors, Alison and Emily have virtually no relationship with David, and Leslie has moved in violation of the Court's order.

R. V. II, p. 674.

This Court has erred in overturning the magistrate's conclusion that there was a material and substantial change of circumstances, regardless of the decision related to alienation. The key, once again, is that Leslie failed to challenge the magistrate's findings of fact, and thus, they must be deemed correct. Thus, her only challenge was that the facts presented, can, in no way, amount to a sufficient showing of material and substantial changes of circumstances. The magistrate clearly found that there had been such a showing, and he did not abuse his discretion in making this finding.

In this portion of the Opinion, this Court has engaged in simply second guessing the magistrate's conclusions that there was not a sufficient showing of a material and substantial change in circumstances. There are ample facts in the record to support the magistrate's conclusion. This Court should not engage in second guessing the magistrate's conclusion on this issue, as the magistrate was at trial, he heard all of the evidence first hand, and he perceived all of the witnesses testimony, so that he could judge their credibility. He witnessed the fact that the parties' summer schedules had constantly changed; he witnessed David's devastation, due to the fact that he no longer has a relationship with Alison and Emily; and he witnessed the effects on the children, related to Leslie's Idaho Falls move, which clearly violated the Decree related to the fact that the parties' had joint legal custody and the Ex Parte Order.

This Court cannot truly conclude that if two of the parties' five children are not even remotely following the current custody order, and have virtually no relationship with their father, that there has been no material and substantial change of circumstances as a matter of law. David has no relationship with his two oldest daughters. They do not follow the custody schedule, at all. Simply put, how can this fact, alone, not establish a material and substantial change of circumstances, as a matter of law? This Court should not have engaged in second guessing the magistrate on this conclusion, as this Court has said it would not do on countless occasions. The magistrate heard the evidence, and he made a reasonable decision within the boundaries of his discretion. This Court may not like the ultimate decision he made, but that is not for this Court to second guess.

As this Court stated in McGriff, “if the trial court finds ‘any change which is evident’ representing a material circumstance that affects the best interest of the child in a custody proceeding, not only does the trial court have the discretion to make such findings if the evidence supports them, it is required to do so”. McGriff at 647. Moreover, this Court, in McGriff upheld the magistrate's conclusion that there had been a material and substantial change of circumstances, due to the fact that the children were having difficulty handling the twice weekly change of residence and that the father was continuing to refuse to communicate with the mother. Id. Compared to this case, those issues are minimal. Here, the two older children are not having difficulty, rather, they rarely come to visit David. Further, they have virtually no relationship with David. It is a very slippery slope, to engage in second guessing a magistrate on this issue, who was present at trial to hear all of the evidence, to determine the credibility of the witnesses, and to see the devastation in David, due to the fact that he has virtually no relationship with Alison and Emily.

This Court not only found that the facts of this case, although uncontested, do not rise to the level of a material and substantial change of circumstance; but, that the magistrate, abused his discretion by making a determination that the facts of this specific case supported a material and substantial change in circumstance. This was error, as it was simply an attempt to substitute the appellate court's decision for that of the magistrate's determination.

3. This Court's decisions related to alienation and material and substantial changes of circumstances will simply lead to more litigation.

One of the additional concerns with this decision, is that it appears that this Court is steering away from its longstanding position of not second guessing the magistrate's determination and not substituting its opinion for that of the magistrate. This will cause litigants to appeal nearly every custody decision, and they can cite to this case, and simply ask the appellate court to take another look at the evidence. This should not be the rule of law, as it has never been such.

At the very least, any finding of alienation and/or any conclusion that a material and substantial change of circumstances has been found, will be appealed based on the rationale in this opinion,

4. This Court, at the very least, should remand this case for further proceedings by the magistrate, as opposed to simply reinstating the First Custody Order.

Assuming that this Court is not willing to adjust its ultimate Opinion, David requests that this Court remand this case for further proceedings, as opposed to simply reinstating the First Custody Order.

This Court must acknowledge that this decision, if the First Custody Order is simply reinstated, will have a profound effect on the children. From the time the Judgment and Order Modifying Prior Court Orders was entered on September 15, 2015, until the First Amended Judgment and Order Modifying Prior Court Orders was entered on February 17, 2016, David had primary physical custody of the three youngest minor children. Thereafter, from approximately February 17, 2016, forward, David and Leslie have shared custody on an equal basis, with the children rotating on a week-to-week basis. To now determine that the children should reside primarily with Leslie, as this Court has done, does not allow for a focus on the best interests of these children. These are not assets that can easily change hands. They are children, and the magistrate should be allowed to consider this Court's decision (if no changes are otherwise made, as requested herein), and determine, based upon said decision, whether there has been a sufficient showing of a material and substantial change of circumstances, to make any changes of the custodial arrangements. If the focus is truly the children's best interests, there can be no other answer.

IV. CONCLUSION

Based upon the foregoing, David, respectfully requests that this Court grant a rehearing.

AARON J. WOOLF, ESQ. Attorney for Appellant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I am a licensed attorney in Idaho, with my office in Idaho Falls, and that on the 17 of November, 2016,1 served a true and correct copy of the following-described document on the parties listed below, by mailing, with the correct postage thereon, or by causing the same to be hand delivered.

DOCUMENT SERVED:

APPELLANT'S BRIEF IN SUPPORT OF PETITION FOR REHEARING

PARTIE SERVED:

Paul B. Rippel, Esq.

Hopkins, Roden, Crockett, Hansen & Hoopes

428 Park Avenue

Idaho Falls, Idaho 83402

☐ Mailing ☐ Hand Delivery ☐ Fax

AARON J. WOOLF, ESQ.

FOOTNOTES

1.   It should be clarified that although it is true that the Divorce Decree did not prohibit Leslie from moving with the children to Idaho Falls, the Ex Parte Order entered August 13, 2013, did prevent the minor children from moving to Idaho Falls, which Leslie completely ignored. See R. V. I. p. 473-75. Further, it must be recalled that David has joint legal custody, and thus, decisions regarding relocating should be discussed between the children, as they effect the best interests of the children. See R. V. I. p. 613.

2.   David had visitation with the children the 1st, 3rd, and 5th weekend of each month during the school year from Friday after school until Monday morning when school commences. See R. V. J. p. 613.