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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 36572
IN THE MATTER OF JOHN DOE,                                                                         )
a minor child.                                                                                     )   Boise, August 2010 Term
)
                                                                                                   )   2010 Opinion No.   96
JOHN DOE I,                                                                                        )
                                                                                                   )   Filed: September 7, 2010
Plaintiff-Respondent,                                                                              )
                                                                                                   )   Stephen W. Kenyon, Clerk
v.                                                                                                 )
)
JANE DOE,                                                                                          )
)
Defendant-Appellant.                                                                               )
Appeal from the District Court of the Fifth Judicial District of the State of Idaho,
in and for Twin Falls County.  The Hon. Thomas D. Kershaw, Magistrate Judge.
The order of the magistrate court is affirmed.
Bauer & French, Boise, for appellant. Charles B. Bauer argued.
Paula B. Sinclair, Twin Falls, for respondent.
EISMANN, Chief Justice.
This is an appeal from an order modifying the custody provisions in a divorce decree on
the ground that Mother was engaging in a pattern of dysfunctional behavior showing that she
was completely irrational with regard to sharing custody of their child with Father and that
Mother’s behavior was negatively impacting the child’s relationship with Father.   We affirm the
order of the magistrate court.
I.  FACTS AND PROCEDURAL HISTORY
John Doe I (Father) and Jane Doe I (Mother) were married on August 30, 2003, but they
separated about four months later.   They have a son who was born in March of 2004.   On
November 5, 2004, Father filed for divorce, and the divorce decree was entered on September 9,




2005.   The parties were granted joint legal and physical custody of their son, with Mother being
granted primary physical custody.   Father was to have ―the right to actual physical custody of
said child at such times and in such a way as to assure said child a frequent and continuing
contact with both parties, in order that each of said parties might foster and preserve the parent-
child relationship.‖
On June 27, 2007, Father filed a motion to modify the decree to grant him sole legal
custody and primary physical custody of the parties’ son on the ground that Mother had engaged
in a pattern of denying him access to the child.   The motion was tried during six days from
August 27 to December 12, 2008.1   After post-trial briefing by the parties, on February 13, 2009,
the Magistrate entered findings of fact and an order granting Father’s motion.
Based upon Mother’s course of conduct since the divorce, the magistrate found:   ―It must
be said that she is completely irrational on the subject of sharing this child with his father.   She
seems strangely unaware of the inconvenience and difficultly which her actions cause to others,
and of the damage which these behaviors can do to her child.‖   Noting that Mother continued
attempting to deny Father access to their son while the motion to amend the decree was pending,
even up to a week or two before the trial started, the magistrate wrote that he ―is not persuaded
that                                                                                                                   [Mother] understands her dysfunctional role in these problems; or has, at present, the
maturity to change it.‖   The magistrate concluded that the best chance for the parties’ son to be
raised by mature adults was for Father to have primary physical custody.   Father had remarried
in April 2006.
After denying Mother’s motion for reconsideration, the court entered an order on April
16,  2009, modifying the divorce decree by granting Father sole legal custody and primary
physical custody of the parties’ son.   The order also set forth the specific times that Mother
would have physical custody.   Mother requested permission to appeal directly to this Court, and
we granted that motion.  She then timely filed a notice of appeal.
II.  ISSUES ON APPEAL
1.  Did the magistrate abuse his discretion in modifying the divorce decree?
2.  Is Father entitled to an award of attorney fees on appeal?
1 The trial was originally scheduled for two days.   When it was not concluded within that time frame, the court and
counsel had to find additional available dates for completing the testimony, which were four days in December.
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III.  ANALYSIS
A.  Did the Magistrate Abuse His Discretion in Modifying the Divorce Decree?
―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, 995 P.2d 830, 832-33 (2000).   The
trial court must base its decision regarding custody on the best interests of the child.   King v.
King, 137 Idaho 438, 444-45, 50 P.3d 453, 459-60 (2002); Idaho Code § 32-717(1).                        ―[T]he
determination of whether to modify child custody is left to the sound discretion of the trial court,
and this Court will not attempt to substitute its judgment and discretion for that of the trial court
except in cases where the record reflects a clear abuse of discretion.‖   Levin v. Levin, 122 Idaho
583, 586, 836 P.2d 529, 532 (1992).
Mother lists four issues on appeal that, in essence, contend that the magistrate abused his
discretion in modifying the custody provisions of the divorce decree.  We will discuss each issue
separately.
1.   Mother contends that changing custody in this case because the parties were in
conflict is punitive and inconsistent with Idaho law.    Mother characterizes the decision
changing custody as merely punishing her because the parties could not get along.   In making
that argument, she quotes from Kalousek v. Kalousek, 77 Idaho 433, 439, 293 P.2d 953, 957
(1956), wherein we stated:                                                                              ―Custody of children in divorce cases must always be determined
upon the basis of the welfare of the children.   It cannot be used as a means of punishment or
reward of either parent.‖                                                                               Mother contends, ―The yardstick for determining custody is, and
should be, the welfare and best interests of the child.   Once [sic] looks in vain in this record for
any substantial evidence [the child’s] welfare is being directly and systematically harmed by
either of these parents and their squabbling.‖
In Kalousek, the trial court changed custody of the parties’ twelve-year-old daughter from
the mother to the father because the mother, who lived in Utah, had failed to deliver the child to
the father in Idaho for his three-month summer visitation.   The trial court found that mother had
done so for the purpose of alienating the child’s affections for her father.   During the hearing on
the motion to change custody, the child testified that she did not want to live with her father.
This Court held that mother’s conduct in that case did not warrant transferring custody to the
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father because there was no showing that the child’s welfare was adversely affected by mother’s
conduct.  Id.
Years after Kalousek was decided, the legislature amended the statute regarding child
custody.   Former Idaho Code § 32-705 provided, ―In an action for divorce the court may, before
or after judgment, give such direction for the custody, care and education of the children of the
marriage as may seem necessary or proper, and may at any time vacate or modify the same.‖
Ch. 378, § 3, 1980 Idaho Sess. Laws 961, 962.  In 1980, the legislature amended and renumbered
the statute so that it provided as follows,                                                             ―In an action for divorce the court may, before and
after judgment, give such direction for the custody, care and education of the children of the
marriage as may seem necessary or proper in the best interests of the children.                         .‖   Id.
Although the statute has since been amended, it still provides that the custody determination,
including any modification, shall be ―as may seem necessary or proper in the best interests of the
children.‖  Idaho Code § 32-717(1).
Thus, the issue is whether there is substantial and competent evidence to support the
magistrate’s conclusion that changing physical custody was in the child’s best interests.   In this
case, there was evidence that Mother’s conduct was directly affecting the child’s relationship
with Father.  It is unnecessary to recount all of such conduct, but describing some of it will put in
context the impact it was having on the parties’ son.
Shortly after their son was born, Father would call to arrange times with Mother when he
could visit their son.   When he would arrive for the scheduled visitation, Mother and their son
would  be  gone.     Father  then  tried  dropping  by  unannounced  for  visitations,  but  that
understandably annoyed Mother and her parents, with whom she was living.
Father filed for divorce, and the parties agreed to a child custody arrangement, with the
assistance of a clinical social worker.   The times that Father was to have physical custody were
not specified, but were to be determined by agreement with Mother.   Father started having
physical  custody  on  Saturdays,  and  then  it  expanded  to  Saturdays  and  Sundays,  but  not
overnight.   When their son reached age two and one-half, Father had visitation every other
weekend, including overnight on Saturday.   Mother would bring their son to Father’s residence
in Twin Falls on Friday evenings, and Father would return the child to Mother’s residence near
Burley on Sunday.   Although Father was generally able to exercise his visitation rights, Mother
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engaged  in  various  types  of  conduct,  in  their  son’s  presence,  that  simply  amounted  to
harassment.
Mother’s conduct included falsely telling Father that he could not exercise visitation
because their son was sick and, at another time, falsely telling Father that she had to take the
child to the emergency room after picking him up from Father’s house.   Once, she told Father
that the time for visitation had to be changed because she was getting married and moving across
the state.   Two days later, she told him that her fiancé had been killed in a car accident.   The
entire story was false, and at trial she lied about having made those statements, even though they
had been recorded by Father.    She also called the police, falsely claiming that Father had
harassed her and yelled at her when he picked up their son for visitation.   Because Father had
begun recording some of his contacts with Mother, he was able to show the officer that Mother’s
allegations were false.   When Mother would not allow Father to have their son at a family
reunion that included members of Father’s family who had come from other states and from
Mexico, Father drove some family members past Mother’s house so they could at least see the
child, who was playing outside.   Mother responded by attempting to obtain a domestic violence
protection order against Father.  Another time, Mother and Father agreed that Father could return
their son from visitation at 7:00 p.m.   At about 6:00 p.m., she called Father and told him she had
changed her mind and demanded that the child be returned immediately.   Father agreed to do so,
and as he was driving to Mother’s residence with the child Mother called the police to report that
Father had not returned the child at the time stated in the custody order.   After Father remarried,
Mother refused several  times to drop the child off at  Father’s home because he was  not
physically present and Mother refused to leave the child with his stepmother.   One of the times,
Father was in the bathroom, but Mother would not believe the stepmother when she said that was
where Father was.  At other times, Father was not yet home from work.
The above incidents are a sample of Mother’s behavior.   There were also numerous
incidents of Father calling to talk with Mother, and her responding by hanging up the telephone
or by simply putting it down and walking away.    When Mother would have a telephone
conversation with Father, she was very argumentative.   Many of these incidents occurred in the
presence of the parties’ son.   When Father would try to talk to Mother when she brought their
son to Father’s house, she would not respond but merely walk away.   After driving a ways down
the street, she would often telephone Father and begin arguing with him.
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The parties stipulated to an order appointing as the court’s custodial expert a clinical
social worker who had been doing child custody evaluations for about twenty-five years.   She
submitted a written report and recommendations and was called by Mother as a witness.   The
custodial expert testified that Mother was demanding, arbitrary, and capricious in front of the
parties’ son and that he had begun mimicking her.   Mother was pulling the child into her drama,
and her conduct was ―seriously unhealthy‖ for the child regarding his relationship with Father.
In Mother’s presence, the child would refer to Father by his first name, rather than by ―Daddy,‖
and would not show affection to Father.  Once Mother would leave, the child’s conduct changed.
He wanted Father and stepmother to hold him and became very comfortable.   The expert stated
that the current relationship was very detrimental to the child and if he remained in Mother’s
home, he would not grow up feeling like he could love both parents.   In her written report, the
expert concluded, ―[Mother’s] behaviors demonstrate she cannot handle the responsibilities of
primary custodian as they relate to noninterference with the father’s relationship with the child.
This is having a detrimental effect on the child.‖   The magistrate did not conclude that Father
was faultless or that he handled the situations perfectly, but it found that ―the problem clearly lies
mostly with [Mother’s] immaturity.‖
The magistrate did not change custody simply because the parties could not get along.
There was substantial evidence that Mother’s behavior was contrary to the child’s best interests.
Although the magistrate did not expressly state that the change in custody was in the child’s best
interests, such a finding is implicit in the magistrate’s written decision.   In setting forth the
applicable  law,  the  magistrate  began  by writing,                                                    ―In  decisions  concerning  the  custody of
children, the welfare and best interests of the child is of paramount importance.‖   The magistrate
found, ―It must be said that [Mother] is completely irrational on the subject of sharing this child
with his father.   She seems strangely unaware of the inconvenience and difficulty which her
actions cause to others, and of the damage which these behaviors can do to her child.‖   The
magistrate wrote that ―children should be raised by mature adults‖ and concluded that the child’s
―best chance for such a parent-child relationship is at present in the home of his father.‖   Finally,
the magistrate found that ―stability for this child will be promoted by primary residence with his
father.‖   The magistrate did not err in concluding that changing physical custody was in the
child’s best interests.
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2.   Mother contends that changing custody because of alleged violations of existing
custody  orders  rather  than  enforcing  the  orders  by  means  of  contempt  powers  was
inconsistent with joint custody.   With respect to the change in physical custody, Mother argues
that there were only a few times that she actually violated a court order regarding custody and
that the magistrate should simply have exercised its contempt powers rather than changing
custody.   In support of that argument, Mother quotes from In re Marriage of Hansen, 616 P.2d
567, 571 (Or. Ct. App. 1980), where the court said, ―[W]e show little regard for our own decrees
if, instead of enforcing them by means of our contempt powers, we throw up our hands and order
a change in custody—a change which punishes the children too much and the mother not
enough.‖
Mother does not cite anything in the record indicating that the magistrate changed
custody simply because she had violated custody orders several times.    The magistrate did
mention that shortly before trial Mother had violated a custody order , but not as a ground for
changing custody.  Rather, it was an example of Mother’s conduct that was inconsistent with her
contention that she had recently seen the light and would change her behavior.   The magistrate
wrote:
However, it must be said that she is completely irrational on the subject of sharing
this child with his father.   She seems strangely unaware of the inconvenience and
difficultly which her actions cause to others, and of the damage which these
behaviors can do to her child.   A review of her conduct, which is only partly
described above, makes this conclusion inescapable.                                                    [Mother] cannot really deny
this, but wishes the court to believe that in recent months she has seen the light
and that things have improved.   There is some basis in the evidence for a hope
that things have improved in the very recent past.   However, as recently as the
summer of 2008, when [Father] was supposed to get a week with [the child] in
July and another week in August, he was unable to get his week in July and he got
time in August only after forcing the matter through his attorney.   This was just a
week or two before the trial started.   The court is not persuaded that [Mother]
understands her dysfunctional role in these problems; or has, at present, the
maturity to change it.
Mother also contends that there is nothing in the record supporting the magistrate’s
findings that Mother ―is completely irrational on the subject of sharing this child with his father‖
and that she ―seems strangely unaware of the inconvenience and difficultly which her actions
cause to others, and of the damage which these behaviors can do to her child.‖   The findings are
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amply supported by three and one-half years of Mother’s behavior and the testimony of the
court’s custodial expert.
Finally, there is no requirement that the magistrate first seek to change Mother’s conduct
through repeated contempt proceedings before changing custody.    The magistrate’s primary
concern was the best interests of the child, and under the circumstances of this case he did not
abuse his discretion in changing physical custody without first using his contempt powers.
3.   Mother contends that the magistrate’s reliance on the expert’s recommendation
was error.   In her written report, the custodial expert recommended that Father be granted sole
legal custody of the parties’ son.   At trial, she explained her reasons for that recommendation as
follows:
Because there is no communicating with mother.   There is no getting
agreements.    There is no follow through on agreements.    There is just this
acrimony and conflict.   Somebody needs to be able to make decisions and do it,
and mom has shown me that she can’t - she can’t do it.  She just can’t do it.   Dad
can.   And I don’t have any indication from father that he really is interested in
keeping mother out of this child’s life.  I feel he would insure that she had contact
and that she would be able to maintain a relationship.
But as far as them agreeing on things and talking about things and really
sharing this child, it’s not happening.   Somebody has got to be able to make
decisions, reasonable responsible decisions for the child.   In my opinion, that’s
dad.
On cross examination, the expert added, ―Now the sole custody is because mom has been
totally, in my mind, intractable on the issue for three and a half years after having lots of
professional intervention [from the expert and two parenting coordinators] . . .                        .‖
Idaho Code § 32-717B(1) states, ―The court may award either joint physical custody or
joint legal custody or both as between the parents or parties as the court determines is for the best
interests of the minor child or children.‖   Subsection (4) of the statute provides, insofar as is
relevant to this case, that ―absent a preponderance of the evidence to the contrary, there shall be a
presumption that joint custody is in the best interests of a minor child or children.‖
The magistrate court awarded sole legal custody of the parties’ son to Father.  The reason
for doing so was as follows:
The court is not persuaded that [Mother] understands her dysfunctional role in
these problems; or has, at present, the maturity to change it.   The court wishes to
implement the statutory preference for joint custody, but the court also believes
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that children should be raised by mature adults, and concludes that [the child’s]
best chance for such a parent-child relationship is at present in the home of his
father.  Sole legal custody with [Father] also gives [the child] his best chance for a
proper, ―joint custody‖ relationship with both of his parents.
Mother challenges the  award of sole legal  custody to  Father, arguing,                               ―People get
divorced because they can’t get along.   If the law says that people that don’t get along can’t have
joint custody, we have just eliminated joint custody from Idaho’s law.   This is not the intent of
Idaho’s joint custody presumption.‖
The magistrate did not grant sole legal custody to Father merely because the parties
―don’t get along.‖    The magistrate had evidence of Mother’s three and one-half  years of
intransigence.   In addition to evidence of various instances of Mother’s conduct, the custodial
expert testified:
The mom’s behavior is intractable inability to change these dysfunctional
patterns that is in her interest to change.   She simply, they seem to be out of her
grasp.   She has this need for drama, dramatic attention to be brought to herself, to
be the center of attention.   She engages in provocative behaviors, behaviors to
enlist argumentative responses.   She shifts in her emotional presentation.   She’s
often coy and coquettish, and then goes to being a victim, victimized, to being
imperious in her presentation.   And there is an aspect that seems to enjoy the
litigious nature in keeping the matter focused and in the forefront.   These are all
kind of behavioral indicators that something is going on.
―It is the province of the trial court to weigh conflicting evidence and to judge the
credibility of witnesses.‖   King v. King, 137 Idaho 438, 442, 50 P.3d 453, 457 (2002).   The
magistrate’s findings are supported by substantial and competent evidence.   Mother has not
shown that the magistrate erred in relying upon the expert’s testimony or that, under the
circumstances of this case, he abused his discretion by awarding Father sole legal custody of the
parties’ son.
B.  Is Father Entitled to an Award of Attorney Fees on Appeal?
Father seeks an award of attorney fees on appeal pursuant to Idaho Code  §  12-121.
Attorney fees can be awarded on appeal under that statute only if the appeal was brought or
defended frivolously, unreasonably, or without foundation.   Gustaves v. Gustaves, 138 Idaho 64,
71, 57 P.3d 775, 782 (2002).   An award of attorney fees is appropriate if the appellant simply
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invites the appellate court to second-guess the trial court on conflicting evidence.   Mother’s
appeal is driven by her dissatisfaction with the magistrate’s factual findings and exercise of
discretion, and she has done little more than invite this Court to second-guess those findings and
that exercise of discretion.   Consequently, we award Father attorney fees on appeal.   Reed v.
Reed, 137 Idaho 53, 62, 44 P.3d 1108, 1117 (2002).
IV.  CONCLUSION
We affirm the order of the magistrate court.   We award costs, including attorney fees, to
respondent.
Justices BURDICK, J. JONES, W. JONES and HORTON CONCUR.
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