IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37383
JANA S.A. MOFFETT, )
) 2011 Opinion No. 23
Plaintiff-Appellant, )
) Filed: April 27, 2011
v. )
) Stephen W. Kenyon, Clerk
BRIAN S. MOFFETT, )
)
Defendant-Respondent. )
)
Appeal from the District Court of the Second Judicial District, State of Idaho,
Idaho County. Hon. John H. Bradbury, District Judge; Hon. Michael J. Griffin,
Magistrate.
District court’s appellate decision affirming magistrate court’s divorce judgment,
affirmed in part, reversed in part, and case remanded.
Clark and Feeney, LLP, Lewiston, for appellant. Charles M. Stroschein argued.
The Cox Law Firm, Boise, for respondent. Sean C. Beaver argued.
________________________________________________
LANSING, Judge
In this divorce case, Jana Moffett appeals from the district court’s appellate decision
affirming the magistrate court’s rulings regarding spousal maintenance, child support,
community property division, and attorney fees. We affirm in part, reverse in part, and remand
to the magistrate court for further proceedings.
I.
BACKGROUND AND PROCEDURE
Brian and Jana Moffett were married in 1990, and three children were born of the
marriage. In July of 2003, Jana filed for divorce. By her amended complaint she sought division
of the community property, primary physical custody of the children, an award of child support,
and an award of spousal maintenance. Pursuant to the parties’ pretrial stipulation, and pending
adjudication on the merits, the magistrate ordered Brian to pay $1,200 monthly temporary child
support.
1
On July 26-27, 2004, trial was held. On July 28, 2004, the magistrate court entered a
written decree of divorce stating that “all other (trial) issues” were reserved. On August 11,
2004, the magistrate filed an order which contained the court’s findings of fact and conclusions
of law. Therein, the magistrate granted Jana primary physical custody of the children, directed
an equal division of the community property with each party receiving a total equity award of
approximately $98,000, denied Jana’s request for maintenance, and ordered Brian to pay $1,925
per month in child support. The magistrate’s child support award was inclusive of $165 per
week in child care costs that were, at the time of trial, being incurred by Jana. Because this order
resolved all of the remaining trial issues, it was effectively a final judgment or decree.
Both parties filed post-judgment motions requesting changes in the judgment. Jana’s
motion sought equal division of an omitted asset, Brian’s 401(k) retirement account. The
magistrate, however, effectively denied Jana’s motion by awarding the 401(k) account solely to
Brian. Brian’s motion requested a recalculation of the child support amount. Specifically, he
sought to eliminate the child care costs as a component of child support and to replace this
provision with one ordering a pro rata sharing of these costs, whatever they may be, in
proportion to guideline income. Before this request was heard on the merits, Jana filed a motion
for contempt against Brian for failure to pay child support. Following a hearing, the court
granted Brian’s motion.
Jana appealed to the district court, which affirmed the magistrate’s rulings. Jana now
appeals to this Court.
II.
ANALYSIS
Jana contends that the magistrate erred by: denying her request for spousal maintenance;
modifying the child support amount while Brian was in contempt or, alternatively, improperly
receiving post-trial evidence that resulted in the reduction of the monthly child support award;
awarding the 401(k) account solely to Brian; and denying her request for attorney fees.
On review of a decision of the district court, rendered in its appellate capacity, we review
the decision of the district court directly. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d
758, 760 (2008). We examine the magistrate record to determine whether there is substantial
and competent evidence to support the magistrate’s findings of fact and whether the magistrate’s
conclusions of law follow from those findings. Id. An abuse of discretion will be found if the
2
magistrate’s findings of fact are not supported by substantial evidence or if the magistrate does
not correctly apply the law. Nicholls v. Blaser, 102 Idaho 559, 561-62, 633 P.2d 1137, 1139-40
(1981).
A. Idaho Code § 32-705 Spousal Maintenance
We address first Jana’s assertion that the magistrate erred by denying her request for
spousal maintenance. Such requests are governed by Idaho Code § 32-705(1), which provides:
1. Where a divorce is decreed, the court may grant a maintenance order if
it finds that the spouse seeking maintenance:
(a) Lacks sufficient property to provide for his or her
reasonable needs; and
(b) Is unable to support himself or herself through
employment.
2. The maintenance order shall be in such amounts and for such periods of
time that the court deems just, after considering all relevant factors which may
include:
(a) The financial resources of the spouse seeking
maintenance, including the marital property apportioned to said
spouse, and said spouse’s ability to meet his or her needs
independently;
(b) The time necessary to acquire sufficient education and
training to enable the spouse seeking maintenance to find
employment;
(c) The duration of the marriage;
(d) The age and the physical and emotional condition of the
spouse seeking maintenance;
(e) The ability of the spouse from whom maintenance is
sought to meet his or her needs while meeting those of the spouse
seeking maintenance;
(f) The tax consequences to each spouse;
(g) The fault of either party.
Whether to award spousal maintenance under this statute is discretionary and “requires
the court to give due consideration to each party’s financial needs and abilities.” Stewart v.
Stewart, 143 Idaho 673, 679, 152 P.3d 544, 550 (2007). The Stewart Court further stated that
“‘reasonable needs,’ under Idaho law, account for the standard of living established during the
marriage.” Id. at 680, 152 P.3d at 551. Jana asserts that the magistrate court erred in denying
maintenance because it did not expressly consider the standard of living established during the
marriage and misapplied other statutory factors, including the financial needs and abilities of the
3
parties. We conclude that Jana has failed to present an adequate record to demonstrate error by
the magistrate.
In order to be eligible for spousal maintenance under subsection (1) of the statute, Jana
was required to establish that in light of the community property division, she lacked sufficient
property to provide for her reasonable needs and that she was unable to support herself through
employment. Id. Jana presumes that because the judgment identified Brian’s income as $66,000
per year for child support purposes, this amount necessarily established the parties’ standard of
living during the marriage. Even assuming that Jana’s premise is valid, the standard of living
during the marriage is but one piece of the initial maintenance inquiry and the magistrate’s
failure to expressly consider it does not, by itself, establish court error.
Given the limited trial transcript in this appeal, which includes only Brian’s testimony,
the only appellate record of most of the relevant factors here is that presented in the magistrate’s
order, which provides sparse specific information. 1 In denying maintenance, the magistrate
court stated that it considered, among other things, “Jana’s ability to earn an income, the assets
awarded to her, the liquidity of those assets,” “Jana’s health,” and “the time necessary for Jana to
better her employability.” These are all appropriate considerations under I.C. § 32-705(1). More
specifically, the magistrate found that Jana did not work during the last five years of the marriage
but had worked in the health field in the past, that she was currently working full-time as the unit
supervisor for the emergency room at a local hospital where she was earning approximately
$15,000 per year, and that “Jana estimated that it would take two to two and a half years to earn
her RN.” The magistrate also found that Jana has a neurological condition that resulted in an
18% loss of effective use of her legs, that she had recently had gall bladder surgery and that she
may have to have a hysterectomy. The magistrate awarded Jana community property with an
equity value of approximately $98,000. Of this amount, $24,000 consisted of liquid assets. The
magistrate also considered “Brian’s ability to pay maintenance while supporting himself and
paying child support.” From these and other findings the magistrate concluded that spousal
maintenance “is not appropriate.”
1
Jana did not file a motion requesting that the magistrate court amend its findings of fact
or for it to make additional findings of fact. See I.R.C.P. 52(b).
4
Thus, the magistrate implicitly found that Jana had sufficient property to provide for her
reasonable needs and that she would be able to support herself once she obtained her nursing
certification. The evidence upon which many of these findings were made is not in the record in
this appeal because Jana has not provided it. Consequently, our record on appeal does not
contain much of the information ordinarily used to determine whether an award of maintenance
would be appropriate, such as: (1) the requesting spouse’s monthly take-home pay, living
expenses, and debt; (2) the non-requesting spouse’s monthly take-home pay, living expenses,
and debt; and (3) the standard of living established during the marriage (other than Brian’s salary
at the end of the marriage). See generally Hoskinson v. Hoskinson, 139 Idaho 448, 462-63, 80
P.3d 1049, 1063-64 (2003). We will not presume error where we have no record to assess the
merits of the magistrate’s treatment of the relevant statutory factors. State v. Beason, 119 Idaho
103, 105, 803 P.2d 1009, 1011 (Ct. App. 1991). Therefore, the district court’s appellate decision
affirming the magistrate’s denial of spousal maintenance is affirmed.
B. Child Support
Jana apparently testified at trial that she was working full-time and was incurring $660
($165 per week) in monthly work-related child care expenses for the three children. The
magistrate’s initial judgment ordered Brian to pay $1,925 per month in child support and
included the child care expenses in this amount. Brian filed a timely post-judgment motion
seeking relief from this award. He contended that the magistrate should, consistent with Idaho
Child Support Guideline 8(a), 2 remove the child care expenses from the basic child support
award and order that each party pay a share of child care expenses directly to the provider in
proportion to their guideline income. Before the matter was heard, Jana filed a motion for
contempt against Brian for failing to pay child support as required by the magistrate’s pretrial
order. Jana then contended that Brian’s post-judgment motion should be treated as one to
modify child support and invoked Idaho decisional authority that bars a modification of child
support whenever the movant is in contempt of court for failing to pay child support.
2
Idaho Child Support Guideline Section 8(a) provides, in part: “A basic child support
calculation does not cover work-related child care expenses. The court may order a sharing of
reasonable work-related child care expenses incurred by either party in proportion to their
Guideline Income.” I.R.C.P. 6(c)(6), Section 8(a).
5
At the hearing, Brian was allowed to examine Jana on this issue. She admitted that she
had not been incurring the awarded $165 weekly child care costs since the trial because, with
Brian not paying child support, she could not afford the child care service and she qualified for a
free child care program. Jana said that Brian was about $10,000 in arrears on his child support
payments. At the close of evidence, the magistrate sided with Jana on the child care issue,
apparently accepting her argument that no modification of child support is allowed in Idaho if
the moving party is in contempt for failure to pay child support. The magistrate said that with
respect to the work-related child care expenses, “as long as child support is not being paid I’m
not going to change that.” The magistrate then held Brian in contempt for, among other things,
failure to pay child support.
In its subsequent written order, however, the court changed its ruling on the child care
expense issue, explaining:
In calculating child support, the court considered, among other matters,
work-related child care costs incurred by Jana Moffett. Based upon the evidence
at the hearing on November 10, 2004 those work related child care expenses are
not being incurred. Jana Moffett testified that the two younger children are
enrolled in a free after school program, and the older child watches the two
younger children for a short time before their mother gets home from work. Jana
Moffett testified that she does not hire child care providers because Brian Moffett
has not paid child support.
At the most recent hearing the court indicated that it was not inclined to
modify the work related child care figures because Brian Moffett was not paying
child support as ordered. However, upon a further review of IRCP 6(c)(6),
Section 8(a) the court concludes that the proper way for work related child care
costs to be allocated [sic], and the court does hereby Order that Brian Moffett pay
80% of any such work related child care costs directly to Jana Moffett or the child
care provider and Jana Moffett pay the other 20% of such costs.
Accordingly, the court deleted the child care expenses from its prior child support award,
reducing the amount to $1,337 per month, backdated to the day of trial. On intermediate appeal,
the district court affirmed the magistrate’s rulings.
In this appeal, Jana challenges this decision on the basis that Idaho case law disallows
modification of child support if the moving party is in arrears on the child support obligation.
Jana relies on a line of Idaho authority that bars a “modification” of child support while the
movant is in contempt for failing to pay all previously-ordered support. See Lusty v. Lusty, 70
Idaho 382, 388, 219 P.2d 280, 284 (1950); Hoagland v. Hoagland, 67 Idaho 67, 69, 170 P.2d
6
609, 610 (1946); Brown v. Brown, 66 Idaho 625, 628, 165 P.2d 886, 887 (1946); Sauvageau v.
Sauvageau, 59 Idaho 190, 193, 81 P.2d 731, 732 (1938); Rodriguez v. Rodriguez, ___ Idaho ___,
___ P.3d ___ (Ct. App. Mar. 10, 2011); Nab v. Nab, 114 Idaho 512, 517-18, 757 P.2d 1231,
1236-37 (Ct. App. 1988). 3
We are not persuaded that these authorities precluded the magistrate’s amendment of the
judgment here, for Brian’s motion was not a motion to modify child support under I.C. § 32-709
based upon a change in circumstances. Instead it was a timely post-trial motion authorized by
I.R.C.P. 59(e) to obtain relief from the judgment due to an error of law in applying the child
support guidelines that was made by the magistrate court in its initial decision. Requests for the
correction of errors of law are permissible under that rule. Barmore v. Perrone, 145 Idaho 340,
344, 179 P.3d 303, 307 (2008). We decline to apply the “no modification while in contempt”
rule outside of the true modification context. To do so would preclude the pursuit of motions
cognizable under the Idaho Rules of Civil Procedure to correct judicial clerical errors or errors of
law. Such motions are not true modification proceedings, and to bar them would improperly
punish the payor parent and bestow a windfall on the payee parent for a mistake of the court.
Jana next argues that even if Brian’s motion is not treated as one to modify child support,
the order altering the child support award was based in part on new evidence that Jana was not
incurring any child care expenses, and the magistrate failed to identify any rule of civil procedure
that would allow Brian to present this new evidence post-trial. This assertion is without merit.
That a trial court did not identify a rule authorizing its action does not, by itself, establish
reversible error. Fix v. Fix, 125 Idaho 372, 376, 870 P.2d 1331, 1335 (Ct. App. 1993). Instead,
as the party claiming error on appeal, it is Jana’s burden here to demonstrate that the submission
of the post-trial and post-judgment evidence allowed here was not authorized by Idaho law.
Jana’s appellate brief makes an attempt to do so by oblique reference to a number of civil rules
that clearly do not apply. There are, however, at least two rules that authorized the receipt of
new evidence after the court trial in this case. First, the court may have treated Brian’s motion as
one seeking a partial new trial under I.R.C.P. 59(a), which provides that a new trial may be
granted “on all or part of the issues in an action” for various reasons, including “that [the
3
The line of Supreme Court authority appears to be a particularized application of the
“unclean hands” doctrine, derived from the traditional view that “in Idaho, an action for divorce
is an action in equity.” Rudd v. Rudd, 105 Idaho 112, 116, 666 P.2d 639, 643 (1983).
7
decision] is against the law. . . .” I.R.C.P. 59(a)(6). Further, “[o]n a motion for new trial in an
action tried without a jury, the court may open the judgment if one has been entered, take
additional testimony, amend findings of fact and conclusions of law or make new findings and
conclusions, and direct the entry of a new judgment.” I.R.C.P. 59(a)(7). In addition, I.R.C.P.
60(b) authorizes the presentation of new evidence, see Lowe v. Lym, 103 Idaho 259, 263, 646
P.2d 1030, 1034 (Ct. App. 1982), and subsection (b)(5) of the rule provides for relief from a final
judgment if “it is no longer equitable that the judgment should have prospective application.”
Here, the monthly child support award payments in the judgment were clearly prospective in
nature in that they continued into the future. See Rudd v. Rudd, 105 Idaho 112, 118-19, 666 P.2d
639, 645-46 (1983). Thus, the magistrate court did not err in admitting new evidence on Brian’s
motion.
Finally, even assuming that the evidence was wrongly allowed, it is also Jana’s burden on
appeal to establish that the error was prejudicial to her in that it affected the magistrate’s
decision. Here, it does not appear that the magistrate’s order changing the child support
calculation was based to any significant degree on the new evidence presented. Although the
order modifying the decree noted Jana’s testimony that she was not currently incurring child care
expenses, the order further stated that the decision to remove the child care costs from its child
support award and replace it with an order that each party share responsibility for child care costs
in proportion to their Guideline income was made after “further review” of Child Support
Guideline 8(a), which rule authorizes precisely that procedure.
For these reasons, the district court’s appellate decision affirming the magistrate’s rulings
with regard to the child care expenses is affirmed.
C. Unequal Division of Community Property
Next we consider Jana’s argument that the magistrate court made an unequal division of
community property when it made the post-judgment award of the entire 401(k) account to
Brian. We agree.
Unless there are compelling reasons for a different allocation, community property must
be divided substantially equally between the parties. I.C. § 32-712(1)(a). The judgment here
shows that the magistrate court’s intent was to divide the community property substantially
equally. In the initial judgment, Jana received a total equity award (value of awarded community
8
property minus allocated community debt) of $98,701.49 while Brian received a total equity
award of $98,185.83.
Following entry of the judgment, Jana filed a timely motion for disposition of an omitted
asset because the magistrate had failed to place a value on or award Brian’s 401(k) account as
part of the community property division. Jana sought an equal division of the account, and Brian
agreed that the account had been omitted and said that he “expected” that each party would
receive a one-half share, but he sought an offset for $2,375 in related funds that had been
awarded to Jana separately in the judgment. At a hearing on the motions, the court informed the
parties that it had already filed an order awarding the entire 401(k) account to Brian because that
had been the court’s intention but the court had inadvertently failed to so state in the judgment.
Jana responded that awarding the entire 401(k) solely to Brian would result in an unequal
division of community property. The court disagreed, stating that by its calculations there was
only a few hundred dollars difference in the community property awards to the parties. The
magistrate court apparently believed that it had included the value of the 401(k) account in
arriving at the substantially equal division of the community property provided in the judgment
and had merely failed to list the asset in the award to Brian. The court was mistaken in this
belief, however, for the value of the 401(k) account was not included in the judgment’s division
of community property. Thus, the issue becomes whether the award of the entire 401(k) account
to Brian resulted in a substantially unequal division of community property.
On intermediate appeal, the district court correctly determined that the value of the
401(k) account was not included in the judgment and that, depending upon the monetary value
assigned to the account, Brian had received an equity award ranging between $118,185.83 and
$144,995.83. Nevertheless, due to an error in its mathematical calculations, the district court
incorrectly concluded that the division of community property was substantially equal even after
assignment of the account to Brian.
As noted above, the original judgment awarded $98,701.49 net community property
value to Jana and $98,185.83 to Brian. A trial exhibit firmly established the value of the 401(k)
plan at the time of trial as $35,117.64. 4 Therefore, the magistrate’s award of the 401(k) plan
4
A trial exhibit showed a “total plan balance” of $46,810 with an “outstanding loan
balance” of $11,700, reducing the effective “plan balance” to $35,117.64. Brian’s trial testimony
establishes that while the divorce proceedings were pending he took out the loan from the 401(k)
9
solely to Brian raised Brian’s award to $133,303.47, while Jana’s award remained at $98,701.49.
This is plainly not an equal division of community property.
We hold that the value of the 401(k) plan is $35,117.64, but we must remand to the
magistrate to correct the community property awards to provide a substantially equal division
between the parties. In making its determination, the magistrate must take into account an
additional provision in the judgment, which states:
Instead of paying child support Brian continued to pay money into his
401K program. Between the date of separation and the date of trial Brian paid
over $4,750.00 into his 401K plan (in addition to making repayments each pay
day on his loan against his 401K plan). Therefore, it is further Ordered that Brian
pay $2,375.00 to Jana within 45 days of this order and provide proof to the court
that he has done so. Failure to comply with this order may result in contempt
sanctions.
The record does not reflect whether Brian has made this payment. If so, because the magistrate
court’s intent in ordering this payment is unclear, the magistrate will need to determine whether
this payment was to be credited against Brian’s child support obligation or was treated as part of
the community property division. This determination will necessarily affect the ultimate division
of community property.
The district court’s appellate decision affirming the magistrate’s division of community
property is reversed, and the matter is remanded to the magistrate court for further proceedings in
accord with this opinion.
D. Attorney Fees
The magistrate’s judgment provided, without citation to a statute or reference to a request
by either of the parties, that the parties would bear their own attorney fees. Jana contends that
and bought a 1999 Chevrolet pickup. In the division of community property, the magistrate
valued that pickup at $11,500 and awarded it to Brian. Thus, the debt owed to the 401(k)
account and the truck are effectively the same asset: “Cash” from the 401(k) account was traded
for a community property truck, which was ultimately accounted for in the community property
division. Consequently, the value of the 401(k) was the “plan balance” of $35,117.64. The
judgment assigned “any debt on the 401(k) plan” to Brian, but Brian is not entitled to any
reduction of his community property equity for the outstanding loan balance because in actuality,
it is not a “debt.” The 401(k) may be viewed as a specialized form of a savings account.
Although Brian is required by law to replace the sum he withdrew from the account, he is in
effect repaying himself by re-depositing money into his own account.
10
the magistrate erred in denying her request for attorney fees under I.C. § 32-704(3), primarily
because of the disparity of income between the parties. We decline to address the issue on the
merits because we have no record showing this issue was presented in the trial court.
It is the responsibility of the appellant to provide a sufficient record to substantiate his or
her claims on appeal. Hyde v. Fisher, 146 Idaho 782, 786, 203 P.3d 712, 716 (Ct. App. 2009);
State v. Murinko, 108 Idaho 872, 873, 702 P.2d 910, 911 (Ct. App. 1985). In the absence of an
adequate record on appeal to support the appellant’s claims, we will not presume error. Beason,
119 Idaho at 105, 803 P.2d at 1011. To obtain relief, Jana must first show that she properly
framed and preserved the issue by requesting attorney fees pursuant to I.C. § 32-704(3) in the
magistrate court. Quintana v. Quintana, 119 Idaho 1, 6, 802 P.2d 488, 493 (Ct. App. 1990). She
has failed to do so. The record contains no written motion by Jana for attorney fees under I.C.
§ 32-704(3). The only transcript in the record on appeal is a partial trial transcript containing
only Brian’s testimony. This partial transcript contains no oral motion by Jana requesting
attorney fees.
On appeal, Jana implies that she adequately preserved the issue before the magistrate
because she requested attorney fees in her amended complaint, which requests in the prayer for
relief “that the defendant be ordered to pay attorney’s fees. . . .” However, the amended
complaint did not reference I.C. § 32-704(3) or, for that matter, any other statute, rule or basis for
the requested award of fees. In Garner v. Bartschi, 139 Idaho 430, 437-38, 80 P.3d 1031, 1038-
39 (2003), Bartschi asserted on appeal that the district court erred by denying her request for
attorney fees which, she contended, were authorized under provisions in two contracts and under
I.C. § 12-120(3). Bartschi contended that a prayer for relief in her answer requesting “attorney’s
fees” sufficiently preserved her request on these bases. Our Supreme Court disagreed, holding:
“A party claiming attorney fees must assert the specific statute, rule, or case
authority for its claim.” MDS Investments, L.L.C. v. State, 138 Idaho 456, 465, 65
P.3d 197, 206 (2003). It is not sufficient to make a generalized request for
attorney fees. Crea v. FMC Corp., 135 Idaho 175, 181, 16 P.3d 272, 272 (2000).
“‘[I]t is incumbent on the moving party to assert the grounds upon which it seeks
an award of attorney fees. The district judge is not empowered to award fees on a
basis not asserted by the moving party.’” Id. (quoting Bingham v. Montane
Resource Assoc., 133 Idaho 420, 424, 987 P.2d 1035, 1039 (1999)).
Garner, 139 Idaho at 438, 80 P.3d at 1039.
11
Thus, Jana’s generalized request in her amended complaint for “attorney fees” was
insufficient to constitute a viable request for attorney fees pursuant to I.C. § 32-704(3). Because
Jana has failed to provide a record of any request below for I.C. § 32-704(3) attorney fees, the
magistrate court had no authority to award attorney fees on this basis. Id. Therefore, the district
court’s appellate decision affirming the magistrate court on this issue is affirmed.
E. Attorney Fees and Costs in this Appeal
In a one-sentence conclusion to her appellant’s brief, Jana asks for attorney fees and costs
on appeal. We decline to address Jana’s request for attorney fees because it is unsupported by
argument or authority, see Bartosz v. Jones, 146 Idaho 449, 463-64, 197 P.3d 310, 324-25
(2008), and because it cannot be said that she is the prevailing party on appeal. Because each
party has prevailed in part, costs on appeal are not awarded.
III.
CONCLUSION
The district court’s appellate decision affirming the magistrate court on the division of
community property is reversed and the matter is remanded to the magistrate for further
proceedings in conformity with this opinion. In all other respects, the district court’s appellate
decision is affirmed.
Judge GUTIERREZ and Judge MELANSON CONCUR.
12