IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 34790
KENNETH DEAN SCHULTZ, )
)
Plaintiff-Respondent, ) Boise, May 2008 Term
)
v. ) 2008 Opinion No. 82
)
RHONDA RAE SCHULTZ, ) Filed: June 13, 2008
)
Defendant-Appellant. ) Stephen W. Kenyon, Clerk
)
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Terry R. McDaniel, Magistrate Judge.
Magistrate’s order on child custody, reversed and remanded.
Vaughn W. Fisher, Jr., Boise, argued for appellant.
Brooks Law, P.C., Nampa, for respondent. Kimberly Danielle Brooks argued.
__________________________________
BURDICK, Justice
Appellant Rhonda Rae Schultz appeals from a magistrate court’s order requiring her to
return to Idaho with her minor daughter or relinquish custody of the child to Respondent
Kenneth Dean Schultz. We reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Kenneth Dean Schultz (Kenneth) and Rhonda Rae Schultz (Rhonda) were married in
Boise on February 25, 2005. Their only child, Sylvia Susan Schultz (Sylvia), was born on May
21, 2005. Kenneth and Rhonda had a tumultuous relationship, characterized by domestic abuse
since before they married and became parents.
On February 2, 2007, Kenneth was arrested for domestic violence against his wife; he
later pleaded guilty to domestic battery, I.C. § 18-918. After this instance of abuse, Rhonda fled
to Oregon with Sylvia. Rhonda immediately filed for a restraining order in Oregon, which was
granted. A month later, Kenneth filed for divorce in Boise. While that action was pending, the
Oregon court granted Kenneth temporary supervised visitation with Sylvia. The Idaho and
Oregon courts then agreed jurisdiction was proper in Idaho.
1
Seven months after Rhonda fled to Oregon, and four months after the Oregon court
granted him visitation, Kenneth filed a motion requesting that the Idaho court order Rhonda to
return with Sylvia to Boise or surrender custody of the child to Kenneth. Rhonda opposed this
motion, arguing it was not in Sylvia’s best interest to move from Oregon or to live with her
father, whom she had not seen in months. Rhonda also argued, based on Kenneth’s pattern of
domestic abuse, that she feared for their safety should she and Sylvia be ordered to return.
Nonetheless, relying on Hopper v. Hopper, 144 Idaho 624, 167 P.3d 761 (2007), the magistrate
entered an order requiring Rhonda and Sylvia to return to Idaho or requiring Rhonda to
relinquish custody of the child to Kenneth. Four days later Rhonda filed a motion for permissive
appeal and stay, but this was denied. She then petitioned this Court for permission to appeal and
stay the execution of the magistrate court’s order. This Court granted her motion.
II. ANALYSIS
This case presents a single issue: whether the magistrate court abused its discretion by
entering an order requiring Rhonda to return to Idaho with her daughter or relinquish custody of
Sylvia to Kenneth. Additionally, Kenneth requests attorney fees on appeal. We will turn first to
the propriety of the order, and then address the requested fees.
A. The magistrate court abused its discretion by entering the order.
Rhonda argues that the magistrate court abused its discretion by entering an order
requiring her to return to Idaho with Sylvia or to surrender custody of the child to Kenneth.
Child custody determinations are left to the discretion of the magistrate court, and will be
overturned on appeal only for an abuse of discretion. Hoskinson v. Hoskinson, 139 Idaho 448,
454, 80 P.3d 1049, 1055 (2003). This Court reviews discretionary decisions to determine
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
choices before it; and (3) reached its decision by an exercise of reason.” Hopper, 144 Idaho at
__, 167 P.3d at 763. The trial court’s findings of fact will be upheld if there is substantial and
competent evidence supporting them. Id. Here, the order fails under all three prongs of the
discretionary review test.
1. It is unclear whether the magistrate court perceived the custody determination before
it as an issue of discretion.
It is unclear whether the magistrate court perceived the question before it as one of
discretion. Its order states:
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1. Plaintiff’s Motion for Order Requiring Defendant Return Minor
child to Idaho Jurisdiction or in the Alternative Grant Plaintiff
Temporary Custody is hereby granted.
2. Pursuant to Hopper v. Hopper, 2007 Ida. LEXIS 61 (Idaho 2007)
[sic] RHONDA RAE SCHULTZ (hereinafter “Rhonda”) is
ordered to return the minor child SYLVIA SUSAN SCHULTZ,
(hereinafter “Sylvia”) to Idaho jurisdiction within fourteen (14)
days of the entry of this Order.
3. Should Rhonda refuse to return to Idaho with Sylvia, Rhonda
shall be ordered to relinquish custody of Sylvia to KENNETH
DEAN SCHULTZ within fourteen (14) days of the entry of this
Order.
This order does not discuss the standard under which the magistrate considered the
motion, and it does not show that the court understood that granting or denying Kenneth’s
motion was within its discretion. At most, this order cites to the Hopper case, which in turn lays
out the discretionary standard for determining child custody issues and makes clear that the best
interest of the child is of paramount importance in custody determinations. See 144 Idaho at __,
167 P.3d at 763-64. Nonetheless, the court’s citation to Hopper could also demonstrate that it
believed the order was mandated by the holding in Hopper. Indeed, it appears from the whole of
the order that the magistrate believed that Hopper removed his discretion. As such, the
magistrate court abused its discretion.
2. The magistrate court did not act consistently with the applicable legal standards.
Second, the magistrate court did not act consistently with the legal choices presented by
the parties because it is not clear whether the court looked to the child’s best interest and because
its order is not supported by substantial and competent evidence.
We cannot determine from the order whether the magistrate court looked to Sylvia’s best
interest when making its decision. A court must consider the best interest of the minor child
when making custody determinations, and when analyzing this may consider:
(a) The wishes of the child’s parent or parents as to his or her custody;
(b) The wishes of the child as to his or her custodian;
(c) The interaction and interrelationship of the child with his or her parent or
parents, and his or her siblings;
(d) The child’s adjustment to his or her home, school, and community;
(e) The character and circumstances of all individuals involved;
(f) The need to promote continuity and stability in the life of the child; and
3
(g) Domestic violence as defined in section 39-6303, Idaho Code, whether or not
in the presence of the child.
I.C. § 32-717(1). The court may also consider whether one parent commits child custody
interference and any statutory defenses to that crime as defined by I.C. § 18-4506. Hopper, 144
Idaho at __, 167 P.3d at 764. Additionally, a parent leaving Idaho with a child is a factor in
determining the child’s best interest, but not a “determinative condition in a child custody
determination.” Navarro v. Yonkers, 144 Idaho 882, __, 173 P.3d 1141, 1147 (2007).
The magistrate court’s order contains no findings, nor any references to the evidence
before the court which might support its decision, as to what would be in Sylvia’s best interest.
Rhonda introduced unrebutted evidence as to each of the I.C. § 32-717 factors, and Kenneth
introduced evidence on some of the factors. Nevertheless, the court made no findings and did
not determine whether it would be in Sylvia’s best interest to remain with her mother or to return
to Boise. Such a lack of elaboration is considered an abuse of discretion because this Court
cannot review the order to determine whether the lower court acted consistently with applicable
legal standards. See Moye v. Moye, 102 Idaho 170, 172, 627 P.2d 799, 801 (1981).
Kenneth asserts that the magistrate made implicit findings, and that these findings are
supported by substantial and competent evidence. Before analyzing the evidence, however, it is
necessary to address Kenneth’s assertion that Rhonda failed to support her position with
evidentiary facts. Kenneth’s argument is that there are no facts in the record because he was not
afforded an opportunity to cross-examine Rhonda as to any statements she made in her
affidavits. 1 This argument presumes that an affidavit from an interested party is not sufficient
without additional evidence. 2 However, there is no requirement that an interested party
corroborate her testimony, and a court does not err by considering an affidavit from an interested
party without further corroboration. Wait v. Leavell Cattle, Inc., 136 Idaho 792, 798, 41 P.3d
220, 226 (2001). 3 Additionally, in a contested, interlocutory motion, the court may make
inferences from all admissible evidence including affidavits. Therefore, the record contains
sufficient admissible evidentiary facts for this Court to review.
1
Kenneth had the opportunity to submit his own affidavits in response to Rhonda’s opposition to his motion, but did
not take advantage of the opportunity to rebut her testimony.
2
It is unclear from Kenneth’s argument how the Court could still consider his affidavits if we were to accept the
premise of his argument, as he too is an interested party.
3
Although Wait dealt with a motion for summary judgment, the general, evidentiary principle that an interested
party need not corroborate her testimony applies equally well to the current motion.
4
Here, even if the magistrate made the implicit decision that it would be in Sylvia’s best
interest to return to Boise or Kenneth’s custody–and this is not clear from the face of the order–
such a decision is an abuse of discretion. “An abuse of discretion by the trial court occurs when
the evidence is insufficient to support its conclusion that the welfare and interests of a child will
be best served by a particular custody award.” Moye, 102 Idaho at 172, 627 P.2d at 801; see also
Navarro, 144 Idaho at __, 173 P.3d at 1147. It is also an abuse of discretion for the trial court to
over emphasize any one factor. Moye, 102 Idaho at 172, 627 P.2d at 801. All of the relevant
factors impacting the custody decision must be considered and reflected in the record. See id.
In opposition to Kenneth’s motion for a temporary custody order, Rhonda relied on two
affidavits. In her first affidavit, filed prior to Kenneth’s motion in order to support her motion
for temporary support, Rhonda testified:
4) During the course of our marriage Kenneth Dean Schultz physically abused me
on repeated occasions.
....
7) While I lived in marriage with Kenneth Dean Schultz he would not allow me to
take Sylvia to the doctor.
8) While I lived in marriage with Kenneth Dean Schultz he prohibited me from
working and would not allow me to collect government assistance for which I
believe me [sic] and Sylvia to be qualified.
9) While I lived in marriage with Kenneth Dean Schultz he did not obtain medical
insurance for Sylvia or me even though it was available through his employer.
....
11) On February 2, 2007 Plaintiff Kenneth Dean Schultz had been drinking and
wanted me to drink with him. When I refused he became angry. He grabbed me
by my hair and slapped me, knocking me to the ground. He slapped me again
while I was on the ground, then picked me up and physically threw me out the
front door. Sylvia ran out the door behind me and we were both locked out of the
house. I called the police and waited at a neighbor’s house. Kenneth Dean
Schultz was arrested when the police arrived.
....
18) Kenneth Dean Schultz has not seen Sylvia or attempted to make arrangements
to see Sylvia as provided for in the Court Orders from [Oregon] Circuit Judge
Russell B. West.
Then, in her affidavit filed in opposition to Kenneth’s motion, Rhonda testified about the
beginning of her relationship with Kenneth, including living in a van with him while pregnant,
his refusal to help her obtain state assistance, his attempts to convince her to abort their unborn
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child, his refusal to allow her to go on doctor-ordered bed rest, his attempts to cause a
miscarriage by hitting her in the stomach, and his telling her he wished she would miscarry. She
also details four specific instances of domestic violence, each occurring while Kenneth was
drinking. During one, Kenneth slapped Rhonda and then locked her in their bedroom for two
days and would not allow her to see Sylvia. During another instance of abuse, Kenneth hit
Rhonda, pulled her to the ground by her hair, and threw a beer at her, missing and breaking a
nearby lamp. After another instance of abuse where Kenneth threw Rhonda into a wall and
slapped her, she left the home to escape the battery and Kenneth threatened that she would be
sorry for leaving Sylvia with him. Rhonda fled to a neighbor’s home, called the police, and
when they arrived, she recovered Sylvia and they left to stay with Kenneth’s mother in Oregon
for several weeks before returning to Boise. During the final instance of domestic abuse (the
same instance detailed in her first affidavit), Kenneth physically threw Rhonda out of their home
and Sylvia ran after her. Rhonda called the police, who arrested Kenneth. The following
Saturday, February 3, 2007, fearing for her safety and Sylvia’s safety, Rhonda again took Sylvia
to Oregon.
Rhonda also testified that once in Oregon, she petitioned an Oregon court for a
restraining order against Kenneth on Monday, February 5, 2007. This request was granted. She
also took Sylvia to the doctor for shots and check-ups. After staying with relatives, she and
Sylvia lived alone together in an apartment and Rhonda worked full-time. Their home is near a
park and a school; additionally, both mother and child receive assistance from Rhonda’s family
and from various Oregon agencies.
Moreover, Rhonda’s affidavit details that Kenneth contested the restraining order, and
consequently, the Oregon circuit court held a hearing in April 2007. Although Kenneth was to
appear telephonically, he failed to appear and the case continued without his presence. At that
hearing, the court issued a visitation order, allowing Kenneth supervised visitation with Sylvia.
Rhonda then arranged for the visitation, but Kenneth failed to visit Sylvia. When these
arrangements failed, Rhonda attempted to allow Kenneth to visit Sylvia by having his mother
take the child to Boise; Kenneth also declined this visitation arrangement.
Finally, Rhonda testified: “I would like for Sylvia to know her father and I think it is
important that he have a relationship with her. However, I do not want either of us to be alone
with him. I will not feel safe for either of us unless he completes some alcohol rehabilitation
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program and maybe not even then.” Rhonda also stated her belief that Sylvia would no longer
recognize her father, since he has not been visiting her, and stated she wants the two to have a
period of readjustment and familiarization. Rhonda stated she wants Sylvia to remain in the
stable home and community where they now reside.
Kenneth refuted none of Rhonda’s testimony. Nowhere in the record before this Court
does he deny the numerous instances of abuse Rhonda details, nowhere in the record does he
refute that he refused to allow Sylvia to have proper medical and financial support, and nowhere
in the record does he indicate that he has attempted to visit Sylvia or that he has financially
supported her as ordered by the Idaho court. 4
Here, the magistrate failed to consider numerous factors. It appears from the order that
the only factor the court considered was the distance between the father and child created when
Rhonda moved to Oregon. Such an over-emphasis of this single factor is an abuse of discretion.
See Moye, 102 Idaho at 172, 627 P.2d at 801. Additionally, this Court has made clear that a
unilateral move out-of-state by one parent is but one factor to consider when making custody
determinations. Navarro, 144 Idaho at __, 173 P.3d at 1147. 5 The magistrate court also failed to
consider Rhonda’s wishes for Sylvia, the extensive history of domestic abuse between the
parents and in the presence of Sylvia, the fact that Kenneth made no attempts to visit his
daughter either in Oregon or by having his mother bring Sylvia to Boise, or the stability and
community support offered to Sylvia in Oregon. The failure to recognize these factors and use
them to evaluate the best interests of Sylvia constitutes an abuse of discretion. See Moye, 102
Idaho at 172, 627 P.2d at 801.
Likewise, although Rhonda argued that Kenneth’s habitual domestic violence overcame
the presumption that joint custody was in Sylvia’s best interest, the magistrate made no findings
and did not decide this issue. Under Idaho law, it is presumed that a continuing relationship with
both parents is in the child’s best interest. Hopper, 144 Idaho at __, 167 P.3d at 764 (citing I.C.
§§ 32-717B(4), 32-1007, 18-4506). However, this presumption can be overcome if the court
4
Kenneth did pay $1000 temporary support as ordered by the Oregon court.
5
Although the magistrate did not have the benefit of Navarro at the time of his decision, Hopper was specifically
decided on the facts of that case—the mother’s unlawful interference, perjured statements and move out of state.
144 Idaho at __, 167 P.3d at 764.
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finds one parent is a habitual perpetrator of domestic violence. I.C. § 32-717B(5). 6 In light of
the evidence before it, the magistrate court’s failure to address this argument, in addition to its
failure to address I.C. § 32-717(1)(g), was an abuse of discretion; the record does not support
that Sylvia’s best interests would be served by removing her from a stable home with a support
network and returning her to the custody of a father with a history of domestic abuse. See Moye,
102 Idaho at 172, 627 P.2d at 801.
In addition to failing to consider Sylvia’s best interest, the court stated: “Pursuant to
Hopper v. Hopper . . . RHONDA RAE SCHULTZ (hereinafter “Rhonda”) is ordered to return
the minor child SYLVIA SUSAN SCHULTZ, (hereinafter “Sylvia”) to Idaho jurisdiction within
fourteen (14) days of the entry of this Order.” This case, however, is readily distinguishable
from Hopper, and the Hopper case in no way mandates that a court order a parent to return to
Idaho without first determining whether that move would serve the child’s best interest. See
Navarro, 144 Idaho at __, 173 P.3d at 1147.
In Hopper, this Court vacated a custody order that granted custody to the mother who had
moved to Montana with the child and filed a false domestic violence report. We remanded for a
custody hearing “where the father has the opportunity to have the contact with his child to which
he is entitled and the child receives the benefit recognized in our law that it is in the best interest
of the child to have a continuing relationship with both parents.” 144 Idaho at __, 167 P.3d at
764. The Court required that the mother return the child to Idaho, noting that the father’s rights
had been prejudiced by the mother’s crime of absconding with the child and misconduct by filing
a false domestic violence report. Id. This Court refused to allow a parent to commit a crime, tell
falsehoods and gain advantages from that misconduct. Id.
The case before this Court is readily distinguishable from Hopper. First, Kenneth
pleaded guilty to domestic battery; Rhonda did not falsely report that he had committed such an
act. Moreover, it is questionable whether it was criminal for Rhonda to leave for Oregon with
Sylvia, as a valid defense to custodial interference—leaving to protect herself and Sylvia—
appears to exist. See I.C. § 18-4506(2)(a)-(b); Hopper, 144 Idaho at __, 167 P.3d at 764.
6
While there is no finding by the magistrate, four unrefuted instances of domestic abuse, one of which resulted in
Kenneth pleading guilty to domestic battery, could lead to the conclusion that he is a habitual perpetrator of
domestic abuse.
8
Also, a visitation order was entered less than two months after Rhonda and Sylvia moved
to Oregon. Kenneth was afforded the opportunity to have frequent and continuing contact with
Sylvia, yet he made no effort to contact or visit his child. Once a parent has the opportunity to
maintain contact with his child, it becomes his responsibility to take advantage of that
opportunity. See Navarro, 144 Idaho at __, 173 P.3d at 1148 (Eismann, C.J. concurring).
As such, it was error for the magistrate court to fail to analyze Sylvia’s best interest, to
refuse to consider the evidence before it, and to determine that Hopper mandated Rhonda and
Sylvia return to Boise. The magistrate court should have examined all the evidence to determine
Sylvia’s best interest and reached a supported, well-reasoned conclusion before entering its
order. Since the court failed in this duty, it abused its discretion.
3. The magistrate court did not reach its decision through an exercise of reason.
Third, the lack of factual and legal analysis in the magistrate court’s order does not
indicate that it reached its decision through the exercise of reason. The order fails to show that
the court used reason. Indeed, the general citation to Hopper may show that it believed the
decision to grant Kenneth’s motion was mandated. However, when making a custody
determination the court must elaborate on all the factors it considers, including how a move
affects a child’s best interest. See Navarro, 144 Idaho at __, 173 P.3d at 1147.
Therefore, because the magistrate court abused its discretion by failing to recognize that
it had discretion in the matter, by failing to act consistently with applicable legal standards and
consistently with the legal standards applicable to the choices before it, and by failing to reach its
decision through the exercise of reason, we hold the magistrate court abused its discretion.
Consequently, we reverse the order requiring Rhonda to return to Idaho with her daughter or
surrender custody of Sylvia and remand to a different magistrate judge.
B. Kenneth is not entitled to attorney fees.
Kenneth requests attorney fees pursuant to I.C. § 12-121. Idaho Code § 12-121
authorizes the award of attorneys fees to the prevailing party if the Court is “left with the abiding
belief that the appeal was brought or pursued frivolously, unreasonably, and without
foundation.” Wait, 136 Idaho at 799, 41 P.3d at 227. Here, we reverse the magistrate’s order, so
Kenneth is not the prevailing party. Therefore, we decline to award attorney fees.
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III. CONCLUSION
We reverse the magistrate court’s order as the lower court abused its discretion, and
remand to another magistrate judge for further consideration. We decline to award Kenneth
attorney fees. Costs to Appellant.
Chief Justice EISMANN and Justices J. JONES, W. JONES and HORTON, CONCUR.
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