Preview:

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 35509
LARRY C. JOHNSON,                                                                                    )
                                                                                                     )   Boise, May 2009 Term
Plaintiff-Respondent-Cross Appellant,                                                                )
                                                                                                     )   2009 Opinion No.   113
v.                                                                                                   )
                                                                                                     )   Filed:  September 8, 2009
CLAUDIA S. JOHNSON,                                                                                  )
                                                                                                     )   Stephen Kenyon, Clerk
Defendant-Appellant-Cross Respondent.                                                                )
Appeal from the District Court of the Third Judicial District of the State of
Idaho, Canyon County.  Hon. Stephen W. Drescher, District Judge.  Hon. Debra
A. Orr, Magistrate Judge.  Hon. James A. Schiller, Magistrate Judge
The decision of the district court is reversed.  The decision of the magistrate court
to stay proceedings pending appeal is affirmed.
Cosho Humphrey, LLP, Boise, for appellant.  Stanley Welsh argued.  Mackenzie
Whatcott appeared.
Bevis, Thiry & Schindele, P.A., for respondent.  James Bevis argued.  Phillip
Bevis appeared.
HORTON, Justice
This appeal presents questions of jurisdiction over child custody and divorce proceedings.
Appellant/Cross-Respondent Claudia Johnson (Claudia) appeals from a district court’s decision
reversing a magistrate judge’s orders finding that Idaho does not have jurisdiction over the issue
of child custody and dismissing the remaining issues in the parties’ divorce action pursuant to
I.R.C.P. 12(b)(8).   Respondent/Cross-Appellant Larry Johnson (Larry) appeals the magistrate
court’s decision to stay the proceedings upon remand pending the outcome of this appeal.
Because the issue of whether Idaho has jurisdiction over the issue of child custody was not raised
on appeal to the district court, and because the magistrate judge was appropriately concerned
about inconsistent determinations from the Idaho and New York courts on the remaining issues
in the divorce action, we reverse the district court’s decision.   We further hold that it was not
error for the magistrate judge to stay the proceedings pending the outcome of this appeal.
- 1 -




I. FACTUAL AND PROCEDURAL BACKGROUND
Larry and Claudia were married in 1984 and had three children, including two daughters
who were minor children when these proceedings began and who are subjects of this appeal.1
The parties and their children lived in Buffalo, New York, for approximately eleven years before
Larry obtained employment in Caldwell, Idaho.   Larry moved to Caldwell in January of 2006,
and the family sold their house in Buffalo and purchased a home in Caldwell in June of 2006.
Claudia and the children joined Larry in Idaho on July 18, 2006.  Claudia took a job and the girls
enrolled in school.
On October  3,  2006, Claudia and the girls traveled to Pittsburgh, Pennsylvania, and
Claudia did not inform Larry of their whereabouts until late that evening.   Claudia visited an
attorney in New York on October 5, 2006, and served Larry via fax with a summons for a
divorce action.   The next day Larry filed a divorce complaint in Idaho.   On October 20, 2006,
pursuant to a motion filed by Larry, a magistrate judge in Idaho issued an order to show cause
why primary custody of the children should not be awarded to Larry and set the matter for
hearing.  Claudia filed a limited notice of appearance and moved to quash the order.
On October 26, 2006, a New York court issued an order granting temporary custody of
the girls to Claudia and directing that they could not be removed from New York until further
order of the court.  Claudia filed a copy of the order with the Idaho court on November 17, 2006.
On November 29, 2006, after a hearing and telephone conference with the New York judge, the
Idaho magistrate judge entered an order finding that, pursuant to the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), I.C. §§ 32-11-101 et seq., New York is the girls’
home state, that New York has the most significant contacts with the children, and Idaho
therefore does not have jurisdiction over custody issues.
On December 18, 2006, Claudia moved to dismiss the remaining issues in the Idaho
action pursuant to I.R.C.P. 12(b)(8).  Claudia later renewed her motion and submitted a February
7, 2007 order from the New York court stating that New York has jurisdiction over all issues
except in rem jurisdiction over property in Idaho and clarifying that New York has personal
jurisdiction over Larry pursuant to New York’s long-arm statute.   Larry filed a notice of appeal
in New York regarding the February 7, 2007 order.
1                                                                                                    The eldest daughter, E.J., turned eighteen on February 3, 2009.
- 2 -




On February 20, 2007, after a hearing and telephone conference with the New York
judge, the magistrate judge in Idaho entered an order dismissing the remaining issues pursuant to
I.R.C.P. 12(b)(8).   Larry appealed this order.   Claudia moved to dismiss the appeal, and on May
2, 2008, the district court denied Claudia’s motion and reversed the magistrate judge’s orders
regarding jurisdiction over custody issues and dismissing the remainder of the action pursuant to
I.R.C.P. 12(b)(8).   The district court remanded the matter and instructed the magistrate judge to
reconsider the case in light of this Court’s decision in Hopper v. Hopper, 144 Idaho 624, 167
P.3d 761 (2007).  Claudia appealed that decision to this Court.
Upon remand, Larry filed a motion for automatic disqualification of the first judge and a
different magistrate judge assumed the case.   Larry then moved for temporary orders awarding
him summer visitation.   On July 22, 2008, the new magistrate judge issued an order denying
Larry’s request for summer visitation and staying all proceedings pending the outcome of
Claudia’s appeal.  Larry cross-appeals that decision.
II. STANDARD OF REVIEW
This Court reviews the magistrate court record to determine whether there is substantial
and competent evidence to support the magistrate judge’s findings of fact and whether the
magistrate judge’s conclusions of law follow from those findings. If those findings are so
supported and the conclusions follow therefrom and if the district court affirmed the magistrate’s
decision, we affirm the district court’s decision as a matter of procedure.   Losser v. Bradstreet,
145 Idaho 670, 672, 183 P.3d 758, 760 (2008) (citing Nicholls v. Blaser, 102 Idaho 559, 561,
633 P.2d 1137, 1139 (1981)).   This Court freely reviews a lower court’s conclusions of law.
Navarro v. Yonkers, 144 Idaho 882, 885, 173 P.3d 1141, 1144 (2007).
III. ANALYSIS
Claudia first argues that the magistrate judge’s November  29,  2006 order regarding
custody was not properly before the district court because Larry did not appeal that order, and
further that even if that order was before the court, it erred in reversing it because Idaho does not
have jurisdiction over child custody issues.   Claudia next argues that the district court erred in
reversing the magistrate judge’s dismissal of the remaining issues in the action pursuant to
I.R.C.P.                                                                                                12(b)(8)  because  the  magistrate  judge  was  correctly concerned  about  inconsistent
determinations from the Idaho and New York courts.   Larry argues that it was an abuse of
- 3 -




discretion by the magistrate judge to stay the case upon remand pending this appeal.   Finally,
both parties request an award of attorney fees on appeal.  We will discuss each issue in turn.
A. Larry waived the issue of child custody on appeal before the district court, and thus the
court erred in reversing the magistrate judge’s November 29, 2006 order.
Claudia argues that Larry did not appeal the November 29, 2006 order, and she points out
that Larry’s notice of appeal only makes explicit that he was appealing the magistrate judge’s
February 20, 2007 order, which pertains only to the issues of property and debt, divorce, child
support and spousal maintenance.   Idaho Appellate Rule 17(e) states in relevant part, however,
that:
(1) A Designation of the Judgment, Order or Decree Appealed From.
The notice of appeal shall designate the final judgment, order or decree appealed
from which shall be deemed to include, and present on appeal:
(A) All interlocutory judgments, orders and decrees entered prior to the
judgment, order or decree appealed from . . .
Thus, despite the   fact that there is no mention anywhere in Larry’s notice of appeal of
the November 29, 2006 order regarding child custody jurisdiction, pursuant to I.A.R. 17(e), the
notice is deemed to include that interlocutory order.   Even so, we conclude that Larry failed to
present the issue before the district court and that the district court therefore erred in reversing
the magistrate judge’s November 29, 2006 order.
Although Larry requested a transcript of the February 14, 2007 hearing upon which the
February 20, 2007 order is based for his appeal to the district court, he made no such request for
the November 17, 2006 transcript upon which the November 29, 2006 order is based.   In other
words, Larry did not place before the district court the text of the magistrate court’s telephonic
discussion with the New York court and its oral findings regarding child custody jurisdiction.   In
addition, not only does Larry’s lack of a request for a transcript indicate that he was not
appealing the order regarding custody jurisdiction, his brief before the district court did not
identify the magistrate judge’s determination regarding child custody jurisdiction as an issue on
appeal.   Rather, the 21-page brief advanced Larry’s contention that the New York court lacked
personal jurisdiction over him and contained only a single sentence, relegated to a footnote,
which asserted that Idaho also has jurisdiction over child custody due to the children’s significant
connections with Idaho and the availability of substantial evidence regarding the children’s care,
protection, training, and personal relationships.   Moreover, in the last line of the body of his
- 4 -




brief,  Larry  argued  against  the  magistrate  court’s  dismissal  under  I.R.C.P.                    12(b)(8)  while
conceding that Idaho does not have jurisdiction over child custody:                                     “Idaho is the only state with
personal jurisdiction over both parties and subject matter jurisdiction to decide all issues except
for custody.”   (Emphasis added.)
In short, it is evident that Larry did not appeal the custody order.   Even if that was his
intention, he waived the issue of custody by failing to list it as an issue on appeal or legitimately
argue it in his brief.  Rowley v. Fuhrman, 133 Idaho 105, 108, 982 P.2d 940, 943 (1999) (holding
that appellant’s failure to designate and argue an issue on appeal constituted a waiver of the issue
under I.A.R. 35).  Thus, the district court erred in considering the issue.  We therefore reverse the
district court’s decision regarding the magistrate judge’s November 29, 2006 order.
B. The district court erred in reversing the magistrate judge’s February 20, 2007 order
dismissing the remaining issues in the case pursuant to I.R.C.P. 12(b)(8).
After the magistrate judge issued an order finding that New York had jurisdiction over
custody issues, Claudia moved to dismiss the remainder of Larry’s divorce action pursuant to
I.R.C.P. 12(b)(8) on the basis that the same action was pending in a New York court, and the
magistrate court granted that motion.   Larry’s argument with respect to this issue is that the
district court was correct to reverse the magistrate court’s decision because New York did not
have personal jurisdiction over him and, therefore, the New York proceedings were not valid and
would not be entitled to full faith and credit.   Claudia argues that the district court should have
granted her motion to dismiss Larry’s appeal on this issue because, after the magistrate judge
entered the order, Larry appeared in New York court thereby subjecting himself to personal
jurisdiction, thus rendering his appeal moot.    We conclude that the district court erred in
reversing the magistrate judge and in declining to grant Claudia’s motion to dismiss Larry’s
appeal.
A trial court’s determination under I.R.C.P. 12(b)(8) whether to proceed with an action
where a similar case is pending in another court is discretionary.   Klaue v. Hern, 133 Idaho 437,
439, 988 P.2d 211, 213, (1999) (citation omitted).   This Court will not overturn the decision on
appeal unless the trial court abused its discretion.   Id.   When determining whether a trial court
abused its discretion, an appellate court considers (1) whether the lower court correctly perceived
the issue as one of discretion; (2) whether the lower court acted within the boundaries of such
discretion and consistently with any legal standards applicable to the specific choices before it;
- 5 -




and (3) whether the court reached its decision by an exercise of reason.   Sun Valley Shopping
Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991).
Pursuant to I.R.C.P. 12(b)(8), a trial court may dismiss an action where there is “another
action  pending  between  the  same  parties  for  the  same  cause.”                                                   “Two  tests  govern  the
determination of whether a lawsuit should proceed where a similar lawsuit is pending in another
court.   First, the court should consider whether the other case has gone to judgment, in which
event the doctrines of claim preclusion and issue preclusion may bar additional litigation.”
Klaue, 133 Idaho at 440, 988 P.2d at 214 (citation omitted).   At the time the magistrate judge
granted Claudia’s motion to dismiss, the matter had not gone to judgment in New York.                                   “The
second test is whether the court, although not barred from deciding the case, should nevertheless
refrain from deciding it.”  Id.
The magistrate judge’s principal reason for granting Claudia’s motion to dismiss was a
desire not to have “separate orders pending in two separate states.”   The magistrate judge noted
that the New York court had entered an order on February 7, 2007, stating that it had jurisdiction
over all matters related to the divorce action as well as personal jurisdiction over Larry.   Larry’s
New York attorney filed notice that Larry intended to appeal that order.   The magistrate judge
noted this intention, but granted Claudia’s motion to dismiss, telling Larry “[i]f New York
doesn’t have jurisdiction over you and this gets set aside, you certainly can come back in here
and do that.   But at this point in time, New York . . . says that they have jurisdiction over you.”
Considering the magistrate judge’s valid wish to avoid conflicting orders, coupled with the
reasonable invitation for Larry to return to the Idaho court should the New York order be
overturned, it cannot be said that the court abused its discretion in granting Claudia’s motion.
More importantly, after the hearing before the magistrate judge, Larry’s argument that
New York did not have personal jurisdiction over him was mooted by his own actions.2   On
April 20, 2007, Larry entered a notice of appearance with the New York court requesting relief
in the divorce matter.   Larry argues he had not authorized his attorney to make this appearance
on his behalf.   Regardless, on November 13, 2007, Larry’s new attorney appeared before the
New York court.   At that hearing, Larry’s counsel did inform the court that Larry was only there
“under protest.”  His counsel went on to state, however, that he was there “because [Larry] wants
2                                                                                                                       “This court may dismiss an appeal when it appears that only a moot question is involved.   In making this
determination, this court may properly consider facts arising after the entry of the judgment appealed.”   Downing v.
Jacobs, 99 Idaho 127, 127-28, 578 P.2d 243, 243-44 (1978) (citations omitted).
- 6 -




to get the rest of these issues litigated.”   The New York court noted that Larry could not appear
and simultaneously contest personal jurisdiction, and instructed Larry that if he wished to
maintain his objection to personal jurisdiction, he needed to leave and proceed by default.
Larry’s attorney, rather than withdrawing and accepting a default judgment replied:                                    “He’s here,
we’re ready to proceed.”   By this action, according to New York law, Larry submitted to New
York’s jurisdiction.    Henderson v. Henderson,  160 N.E.  775  (N.Y.  1928)  (holding that the
general rule in New York is that when a defendant becomes an actor in a suit to the extent of
participating in the merits he submits to the personal jurisdiction of the court).   Furthermore, in
so doing, Larry effectively resolved the issue of personal jurisdiction, which was the basis for his
appeal from the February 7, 2007 order, thereby entitling that order to full faith and credit in
Idaho.   Burns v. Baldwin, 138 Idaho 480, 485, 65 P.3d 502, 507 (2003) (holding that where the
question of jurisdiction is fully and fairly litigated and finally decided, the judgment rendered by
the sister state is entitled to full faith and credit).
For these reasons, we conclude that the district court erred in reversing the magistrate
judge’s order granting Claudia’s motion to dismiss pursuant to I.R.C.P. 12(b)(8) and in denying
Claudia’s motion to dismiss Larry’s appeal.  We therefore reverse.
C.  It was not an abuse of discretion for the new magistrate judge to stay the action upon
remand pending the outcome of this appeal.
Upon remand from the district court, the new magistrate judge declined Larry’s motion
requesting that the court order summer visitation and instead stayed the proceedings pending the
outcome of Claudia’s appeal.    Pursuant to I.A.R.  13(b)(14), this was within the magistrate
judge’s authority.3   Before the magistrate court, Larry conceded that the judge had the power to
stay proceedings; however, he argues that by not immediately ordering Claudia to return the
children to Idaho pursuant to Hopper, the court abused its discretion.
3                                                                                                                      I.R.C.P. 83(i)(2) provides that “[d]uring the pendency of an appeal from the magistrate’s division to the
district court, and any further appeal to the Supreme Court, the magistrate shall have the same powers and authority
granted to a district judge by rule 13(b) of the Idaho Appellate Rules during an appeal to the Supreme Court.”
I.A.R. 13 states in relevant part that:
In civil actions, unless prohibited by order of the Supreme Court, the district court shall have the
power and authority to rule upon the following motions and to take the following actions during
the pendency on an appeal;
(14) Stay execution or enforcement of any judgment, order or decree appealed from, other than a
money judgment, upon the posting of such security and upon such conditions as the district court
shall determine.
- 7 -




The magistrate judge’s comments clearly reflect that he recognized that the decision
whether to grant the stay was committed to his discretion.    In denying Larry’s motion and
staying the proceedings, the magistrate judge observed that “[i]f the Supreme Court says, [the
initial magistrate judge] was correct and New York should have taken jurisdiction, then my trial
that I try pending appeal is a total waste of time, effort and money.”   The court went on to state
that one purpose behind the UCCJEA is to avoid conflicting orders from different jurisdictions
and that:                                                                                                “New York has entered its orders.   If I enter conflicting orders, then how do we
enforce that?”  In light of these statements from the trial court, we conclude that the decision was
consistent with applicable legal standards and reflected the exercise of reason.  We conclude that
the magistrate judge did not abuse his discretion by staying proceedings pending the outcome of
this appeal.
D.  No attorney fees are awarded in this appeal.
Larry seeks attorney fees pursuant to I.C. § 12-121; however, he is not eligible for such
an award as he has not prevailed on appeal.   I.C. § 12-121.   Claudia, also pursuant to I.C. § 12-
121, seeks an award of attorney fees incurred in defending against Larry’s cross-appeal, in which
she has prevailed.   The Court is authorized to award attorney fees under that provision if it is left
with  an  abiding  belief  that  the  appeal  was  brought,  pursued,  or  defended  frivolously,
unreasonably, or without foundation.    Burns v. Baldwin,  138 Idaho at  487,  65 P.3d at  509
(citation  omitted).                                                                                     We  are  unable  to  conclude  that  Larry’s  cross-appeal  was  pursued
unreasonably or without foundation.  We therefore decline to award Claudia her attorney fees.
IV. CONCLUSION
We reverse the decision of district court and affirm the newly-assigned magistrate judge’s
decision to stay proceedings pending appeal.   We do not award attorney fees on appeal.   We
award costs on appeal to Claudia.
Chief Justice EISMANN, Justices J. JONES, W. JONES and Justice Pro Tem TROUT
CONCUR.
- 8 -

Download johnson-20v-20-20johnson-20-20final.pdf

Idaho Law