                   IN THE SUPREME COURT OF THE STATE OF IDAHO

                                             Docket No. 33943

IN THE MATTER OF THE ESTATE OF             )
JAMES EVERETT MONTGOMERY, JR.,             )
DECEASED.                                  )
------------------------------------------------------
                                           )
NANCY MONTGOMERY,                          )                    Boise, December 2008 Term
                                           )
     Plaintiff-Appellant-Cross Respondent, )                    2009 Opinion No. 29
                                           )
v.                                         )                    Filed: March 4, 2009
                                           )
MANS MONTGOMERY,                           )                    Stephen Kenyon, Clerk
                                           )
     Defendant-Respondent,                 )
                                           )
and                                        )
                                           )
MARY L. SIMMONS, personal                  )
representative of the estate of JAMES      )
EVERETT MONTGOMERY,                        )
                                           )
    Defendant-Respondent-Cross Appellant. )

        Appeal from the District Court of the Fourth Judicial District of the State of
        Idaho, Boise County. Honorable Kathryn A. Sticklen, District Judge. Honorable
        Arnold M. Cherin, Magistrate Judge.

        The decision of the district court is affirmed in part, reversed in part, and
        remanded for further proceedings.

        Marcus, Christian & Hardee, Boise, for appellant. Craig Marcus argued.

        Ringert Clark Chartered, Boise, for respondent Mans Montgomery. James
        Kaufman appeared.

        Stoppello & Kiser, Boise, for respondent Mary L. Simmons. Frank Stoppello
        argued.
               _____________________________________________

HORTON, Justice
        This case concerns the probate of the will of Jim Montgomery (Jim). Appellant Nancy
Montgomery (Nancy) appeals the district court’s affirmance of the magistrate judge’s grant of


                                                         1
partial summary judgment, in which the magistrate judge concluded that Nancy was not an
omitted spouse under I.C. § 15-2-301. Nancy also appeals the district court’s affirmance of the
magistrate judge’s dismissal of her consolidated creditor’s claim suit for untimely service of
process. Finally, Nancy asks this Court to review the district court’s failure to address the
magistrate judge’s order indefinitely deferring resolution of Nancy’s claim for family allowance.
Respondent/Cross-Appellant Mary Simmons (Mary), the personal representative of Jim’s estate,
appeals the district court’s reversal of the magistrate judge’s grant of partial summary judgment
in which the magistrate judge concluded that Nancy and Jim were not engaged in a partnership
that co-owned the Alibi Bar and its related assets.
       We affirm the district court’s decision vacating the magistrate judge’s grant of summary
judgment on the partnership issue and affirming the dismissal of the creditor’s claim suit. We
reverse the district court’s decision affirming the magistrate judge’s grant of partial summary
judgment on the omitted spouse issue.         We further instruct the district court to direct the
magistrate judge to determine Nancy’s entitlement, if any, to a family allowance.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
       Jim was married and the father of two children, Mans Montgomery (Mans) and Dannell
Montgomery, when he met Nancy in late 1986. Jim had previously worked in the food service
industry, but not in the business of selling alcohol by the drink.          Nancy, however, had
considerable experience in the bar business. After meeting Nancy, Jim leased the Alibi Bar
(Alibi) in Boise, Idaho beginning in January 1987. Nancy assisted in setting up the business, and
at about the same time, Jim and Nancy began to live together. Jim subsequently purchased the
Alibi, including real and personal property, in late 1987. Jim was divorced in November 1987.
       Jim purchased a liquor license in March of 1991. The real property and the liquor license
were titled in Jim’s name, although there is evidence that Nancy contributed $2,500 toward the
purchase of the license.
       After owning the Alibi for several years, Jim formed a corporation and a limited liability
company (LLC) for the purpose of limiting personal liability and shielding the bar’s assets. The
parties dispute whether these entities were ever viable, but it is undisputed that none of the Alibi
assets were ever transferred to these entities prior to Jim’s death.
       On July 5, 1990, Jim executed a will in which he bequeathed a house located at 2358
Wyoming Street, Boise, Idaho to Nancy, and left his remaining property to his sons in equal



                                                  2
shares. Jim and Nancy were married on October 17, 1991, and remained married until Jim’s
death on December 2, 2003. During the marriage, Jim sold the Wyoming Street house. Also
during their marriage, Jim and Nancy acquired certain community property by way of joint
tenancies with rights of survivorship, including a condominium in Arizona, and bank, brokerage,
and retirement accounts, all of which passed directly to Nancy upon Jim’s death. Jim’s will,
which was never changed, was admitted to probate and Mary (Jim’s sister) was appointed
personal representative.
       Nancy filed a petition in the probate proceedings seeking an intestate share of Jim’s estate
as an omitted spouse. Mary filed a motion to have an inventory confirmed by the court that
designated the Alibi and related assets as Jim’s separate property. In response, Nancy asserted
that she and Jim were partners in the Alibi business.
       Nancy filed a separate suit in district court as a creditor of the estate, claiming the estate
has been unjustly enriched by her contributions to the Alibi. The creditor’s suit was consolidated
with the probate proceedings before the magistrate judge by agreement of the parties and the
case was scheduled for a jury trial. After considerable discovery, Nancy, Mary, and Mans filed
cross-motions for summary judgment on the omitted spouse and partnership claims. Mary also
moved to dismiss the creditor’s suit.     During this time, Nancy repeatedly sought an order
requiring Mary to pay Nancy a family allowance during the pendency of the probate
proceedings.
       Both sides raised various evidentiary objections to materials submitted in connection with
the cross-motions for summary judgment. At the September 28, 2005 hearing on the parties’
motions, the magistrate judge expressly decided not to decide the admissibility of evidence,
stating that all evidence would be considered and given ―whatever weight‖ the magistrate judge
determined to be appropriate. The magistrate judge then granted summary judgment against
Nancy on the omitted spouse and partnership claims and dismissed the creditor’s suit for
untimely service of process. Finally, the magistrate judge denied Nancy’s motion to set a
deadline for Mary to complete the accounting necessary to calculate Nancy’s family allowance.
       Nancy appealed to the district court, which upheld the magistrate judge’s decision on the
omitted spouse issue, reversed the grant of summary judgment and remanded on the partnership
issue, and affirmed the dismissal of the creditor’s suit. The district court did not address the




                                                 3
issue of Nancy’s claim for family allowance. Nancy timely appealed to this Court and Mary
timely cross-appealed.
                                 II. STANDARD OF REVIEW
       When this Court reviews a decision rendered by a district court acting in its appellate
capacity, it considers the trial court’s decision, and if that decision is free from error and if the
district court affirmed that 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).
       When this Court reviews a trial court’s decision on summary judgment, it employs the
same standard as that properly employed by the trial court when originally ruling on the motion.
Kolln v. Saint Luke’s Reg’l Med. Ctr., 130 Idaho 323, 327, 940 P.2d 1142, 1146 (1997) (citing
Thomson v. Idaho Ins. Agency, Inc., 126 Idaho 527, 529, 887 P.2d 1034, 1036 (1994)). We
construe disputed facts and draw all reasonable inferences in favor of the non-moving party.
Lockheed Martin Corp. v. Idaho State Tax Comm’n, 142 Idaho 790, 793, 134 P.3d 641, 644
(2006). ―Summary judgment is appropriate if the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.‖ Id.
       The fact that both sides moved for summary judgment does not in itself establish that
there is no genuine issue of material fact. Casey v. Highlands Ins. Co., 100 Idaho 505, 507, 600
P.2d 1387, 1389 (1979); Farmer’s Ins. Co. of Idaho v. Brown, 97 Idaho 380, 381-82, 544 P.2d
1150, 1151-52 (1976). Our rules do not contemplate the transformation of the court, sitting to
hear a summary judgment motion, into the trier of fact when the parties file cross-motions for
summary judgment. Moss v. Mid-America Fire and Marine Ins. Co., 103 Idaho 298, 302, 647
P.2d 754, 758 (1982) (citing I.R.C.P. 56(c)). This Court applies an abuse of discretion standard
when determining whether testimony offered in connection with a motion for summary judgment
is admissible. McDaniel v. Inland Northwest Renal Care Group-Idaho, LLC, 144 Idaho 219,
221, 159 P.3d 856, 858 (2007). This Court exercises free review over matters of law. Bolger v.
Lance, 137 Idaho 792, 794, 53 P.3d 1211, 1213 (2002).
                                         III. ANALYSIS
       Before we consider the parties’ cross-motions for summary judgment on the partnership
and omitted spouse issues specifically, we must first review how the trial court handled the
evidence in this case. After addressing the summary judgment decisions, we then address



                                                 4
whether dismissal of the creditor’s claim suit was proper. Finally, we examine Nancy’s claim of
entitlement to a statutory family allowance during probate proceedings.
A. The magistrate judge erred when he granted summary judgment in favor of Mans and
Mary because he did not determine the admissibility of evidence in the first instance.
       At the September 28, 2005 hearing before the magistrate judge, Nancy’s attorney
suggested that, pursuant to Ryan v. Beisner, 123 Idaho 42, 844 P.2d 24 (Ct. App. 1992), prior to
ruling on the motions for summary judgment the court should entertain and resolve Nancy’s
objections to the admissibility of various evidence. Nancy informed the magistrate judge that
her objections rested on grounds of hearsay, relevancy, non-responsive answers, and foundation.
The magistrate judge expressed concern that it would take too much time for him to make
preliminary rulings on the admissibility of each piece of evidence to which an objection had been
made. Instead, while acknowledging that much of the evidence offered by the parties was
inadmissible, the magistrate judge suggested the parties should simply begin to argue, and he
would address evidentiary objections as they came up during the course of argument. Mans’
attorney made his argument on the partnership issue, asserting that Nancy’s testimony on the
issue was barred by Idaho’s ―Deadman’s Statute.‖ At that point, the magistrate judge decided
that the parties should not present any further argument regarding evidentiary objections:
               THE COURT: Mr. Marcus, let me make a preliminary ruling.
               I am going to allow all of the statements and things that are all hearsay of
       friends and relatives, and I will give them whatever weight to which I think
       they’re entitled.
                                                ...
              THE COURT: Frankly, a lot of that stuff is hearsay; and I probably should
       not admit it. You know, I’ve been doing this for 45 years, I guess, in this
       business; and I have been reversed lots of times.
              And the times I get reversed is when I keep evidence out. So my
       philosophy is let it in and weigh it, rather than keep it out and get – and come
       back and try the case again.
       The role of an appellate court is to review a trial court’s evidentiary rulings under the
abuse of discretion standard. Reed v. Reed, 137 Idaho 53, 57, 44 P.3d 1108, 1112 (2002). The
appellate court should consider whether the trial court correctly perceived the issue as
discretionary, whether it acted within the boundaries of its discretion and consistently with
applicable legal standards, and whether it reached its decision by an exercise of reason to
determine whether a trial court has abused its discretion. Id.



                                                 5
       For nearly two decades, the appellate courts of this state have consistently held that the
trial courts must determine the admissibility of evidence as a ―threshold question‖ to be
answered before addressing the merits of motions for summary judgment. Hecla Mining Co. v.
Star-Morning Mining Co., 122 Idaho 778, 784, 839 P.2d 1192, 1198 (1992); Ryan, 123 Idaho at
45, 844 P.2d at 27. We recently reiterated this rule in Gem State Ins. Co. v. Hutchison, 145
Idaho 10, 175 P.3d 172 (2007):
              When considering evidence presented in support of or opposition to a
       motion for summary judgment, a court can only consider material which would be
       admissible at trial. Petricevich v. Salmon River Canal, Co., 92 Idaho 865, 869,
       452 P.2d 362, 366 (1969); I.R.C.P. 56(e). Thus, if the admissibility of evidence
       presented in support of a motion for summary judgment is raised by objection by
       one of the parties, the court must first make a threshold determination as to the
       admissibility of the evidence ―before proceeding to the ultimate issue, whether
       summary judgment is appropriate.‖ Bromley v. Garey, 132 Idaho 807, 811, 979
       P.2d 1165, 1169 (1999) (quoting Ryan, 123 Idaho at 45, 844 P.2d at 27).
145 Idaho at 14, 175 P.3d at 176. In this instance, the magistrate judge refused to apply
governing legal standards, despite having been directed to controlling legal authority. Simply
stated, he failed to do the work required of every trial judge confronted with objections to
evidence offered in connection with a summary judgment motion.             This was an abuse of
discretion.
       A trial court’s failure to determine the admissibility of evidence offered in connection
with a motion for summary judgment is error that may not be remedied on appeal. Gem State,
145 Idaho at 15-16, 175 P.3d at 177-78. This is because the admissibility of evidence is a matter
committed to the discretion of the trial court. Id. at 15, 175 P.3d at 177 (citing Athay v. Stacey,
142 Idaho 360, 366, 128 P.3d 897, 903 (2005)). When the discretion exercised by a trial court is
affected by an error of law, the role of the appellate court is to note the error made and remand
the case for appropriate findings. Id. at 16, 175 P.3d at 178 (citing Miller v. Haller, 129 Idaho
345, 351, 924 P.2d 607, 613 (1996)).
       The magistrate judge’s error did not end with his refusal to rule on objections: he further
determined that it was appropriate to weigh the evidence before him. This represents a violation
of the well-established rule that a trial court, in ruling on a motion for summary judgment, is not
to weigh evidence or resolve controverted factual issues. Am. Land Title Co. v. Isaak, 105 Idaho
600, 601, 671 P.2d 1063, 1064 (1983).
       1. Nancy’s Partnership Claim


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       Idaho has codified the Uniform Partnership Act at title 53, chapter 3. Idaho Code § 53-3-
202(a) defines a partnership as ―the association of two (2) or more persons to carry on as co-
owners a business for profit . . . whether or not the persons intend to form a partnership.‖ Idaho
Code § 53-3-202(c) sets out the following rules for determining whether a partnership exists:
                (1) Joint tenancy, tenancy in common, tenancy by the entireties, joint
       property, common property, or part ownership does not by itself establish a
       partnership, even if the co-owners share profits made by the use of the property.
                (2) The sharing of gross returns does not by itself establish a partnership,
       even if the persons sharing them have a joint or common right or interest in
       property from which the returns are derived.
                (3) A person who receives a share of the profits of a business is presumed
       to be a partner in the business, unless the profits were received in payment:
       (i) Of a debt by installments or otherwise;
       (ii) For services as an independent contractor or of wages or other compensation
       to an employee;
       (iii) Of rent;
       (iv) Of an annuity or other retirement or health benefit to a beneficiary,
       representative, or designee of a deceased or retired partner;
       (v) Of interest or other charge on a loan, even if the amount of payment varies
       with the profits of the business, including a direct or indirect present or future
       ownership of the collateral, or rights to income, proceeds, or increase in value
       derived from the collateral; or
       (vi) For the sale of the goodwill of a business or other property by installments or
       otherwise.
       The official comment to this subsection states in part: ―Whether a relationship is more
properly characterized as that of borrower and lender, employer and employee, or landlord and
tenant is left to the trier of fact.‖ UNIFORM PARTNERSHIP ACT § 202 cmt. (1994).
       The magistrate judge, after noting again that he was weighing the evidence, granted
summary judgment declaring that no partnership existed. The magistrate judge’s weighing of the
evidence was clearly error. There is no written partnership agreement in the record. However,
Nancy presented the testimony of witnesses who claim that she and Jim were engaged in a
partnership. Nancy also presented numerous documents showing that she was involved in
operating the Alibi, including evidence that she contributed her own money towards the purchase
of the liquor license. As it stands, there is evidence in the record tending to show the existence
of a genuine issue of material fact regarding the existence of a partnership. However, until such
time as the trial court rules on the admissibility of this evidence, this Court is unable to determine
whether summary judgment on the partnership issue was appropriate. Thus, we affirm the
district court’s decision vacating the grant of summary judgment on the partnership issue. On


                                                  7
remand, the district court should instruct the trial court to rule on objections prior to determining
whether summary judgment is appropriate as to Nancy’s partnership claim.
        Because the question of how I.R.E. 601(b) should be applied will arise on remand, we
deem it appropriate to briefly address this evidentiary issue. I.R.E. 601(b) is virtually identical to
I.C. § 9-202(3), the so-called ―Deadman’s Statute.‖1                   We have previously described the
appropriate analysis to be applied:
                In Argyle v. Slemaker, 99 Idaho 544, 585 P.2d 954 (1978), we stated that
        ―the statute bars (1) certain persons from testifying (2) in specified actions (3) as
        to certain communications. All three portions of I.C. § 9-202(3) must be satisfied
        in order for the evidence to be barred.‖ Id. at 547, 585 P.2d at 957.
Matter of Estate of Keeven, 110 Idaho 452, 460, 716 P.2d 1224, 1232 (1986). Given the virtual
identity of the rule and the statute, this analysis continues to be appropriate. We have not
interpreted this provision so broadly as to bar testimony concerning a state of affairs or matters
of fact occurring before a decedent’s death. Id. When testimony of an alleged oral agreement is
presented alone, it is inadmissible; however, ―written evidence to substantiate the alleged
agreement‖ is admissible. Id.
        2. Nancy’s Omitted Spouse Claim
        Idaho Code § 15-2-301 is the specific statutory provision relating to omitted spouses and
states in relevant part:
        (a) If a testator fails to provide by will for his surviving spouse who married the
        testator after the execution of the will, the omitted spouse shall receive the same
        share of the estate he would have received if the decedent left no will unless it
        appears from the will that the omission was intentional or the testator provided for
        the spouse by transfer outside the will and the intent that the transfer be in lieu of
        a testamentary provision is shown by statements of the testator or from the
        amount of the transfer or other evidence.
The purpose of this provision is to avoid the unintentional disinheritance of the spouse of a
testator who executes a will prior to the marriage but neglects to revise it afterwards. Estate of
Keeven, 110 Idaho at 457, 716 P.2d at 1229. The provision reflects the view that the spouse’s
intestate share is what the decedent would have wanted the spouse to have if the decedent had
thought about the relationship of his old will to the new situation. Id. at 458, 716 P.2d at 1230.
In some cases, a will executed prior to marriage makes a devise to the testator’s future spouse.


1
          I.C. § 9-202(3) has a comma after the phrase ―estate of a deceased person,‖ whereas that comma is omitted
in I.R.E. 601(b).


                                                        8
Idaho has adopted the view that some such devises preclude the surviving spouse from
qualifying as an omitted spouse under the statute even though the devise was not expressly made
in contemplation of marriage. Id. However, sometimes such a devise can be so minimal and
made in such a way that it appears that the testator failed to provide for the surviving spouse
within the meaning of the statute. Id.
       The surviving spouse bears the burden of proving that the devise does not reflect what the
testator would have wanted. This determination requires consideration of the following factors:
(1) the alternative takers under the will, (2) the dollar value of the testamentary gift to the
surviving spouse, (3) the fraction of the estate represented by the gift, (4) whether comparable
gifts were made to other persons, (5) the length of time between execution of the testamentary
instrument and the marriage, (6) the duration of the marriage, (7) any inter vivos gifts the testator
has made to the surviving spouse, and (8) the separate property and needs of the surviving
spouse. Id. at 458-59, 716 P.2d 1230-31.
       In this case, Jim’s will devises to Nancy a house that his estate no longer owns and
contains no indication that Jim considered Nancy as a future spouse at the time he made it. Thus,
the will is ambiguous as to what Jim intended Nancy, as his surviving spouse, to inherit from his
estate. When a court determines that a document is ambiguous, interpretation of the document
presents a question of fact that focuses upon intent. Carl H. Christensen Family Trust v.
Christensen, 133 Idaho 866, 873-74, 993 P.2d 1197, 1204-05 (1999) (holding issue of settlor’s
intent, as a question of fact, could not be resolved on summary judgment).
       The magistrate judge stated that in his view, Jim did not forget about Nancy as a spouse,
intended her only to have the minimal devise under the will, and made transfers outside the will
which, judging from their value, Jim intended to be in lieu of a devise under the will. In doing
so, the magistrate judge made factual findings regarding Jim’s intent after weighing all the
evidence presented, whether admissible or not. This was error, as stated above, because the
magistrate judge should have determined the admissibility of evidence as a threshold matter and
after doing so, if a genuine issue of material fact existed regarding Jim’s intent, the magistrate
judge was not free to weigh the evidence in order to resolve the factual dispute by way of
summary judgment.
       We also deem it appropriate to provide guidance as to another evidentiary issue that will
arise on remand. The district court determined that statements attributed to Jim submitted by all



                                                 9
parties on the omitted spouse issue were hearsay and would normally be inadmissible; however,
the district court concluded that I.C. § 15-2-301(a), which provides that ―the intent that the
transfer be in lieu of a testamentary provision [may be] shown by statements of the testator‖
creates an exception to the hearsay rule. Accordingly, the district court concluded that the
statements were properly admitted.
       The appropriate analysis is found by reference to the Idaho Rules of Evidence. Idaho
Rule of Evidence 1102 states: ―Statutory provisions and rules governing the admissibility of
evidence, to the extent they are evidentiary and to the extent that they are in conflict with the
applicable rules of Idaho Rules of Evidence, are of no force or effect.‖ See also Richard W.
Effland, Uniform Probate Code Practice Manual 60-61 (Robert R. Wright ed., Association of
Continuing Legal Education Administrators, 1972) (stating ―Nothing in the [omitted spouse]
statute, however, is intended to alter rules of evidence applicable to statements of a decedent.‖).
Thus, we conclude that the omitted spouse statute does not create an exception to the hearsay
rule. Rather, the exception is found in I.R.E. 803(3), which provides:
               A statement of the declarant’s then existing state of mind, emotion,
       sensation, or physical condition (such as intent, plan, motive, design, mental
       feeling, pain, and bodily health), but not including a statement of memory or
       belief to prove the fact remembered or believed unless it relates to the execution,
       revocation, identification, or terms of declarant’s will.
       Several courts have interpreted similar rules to permit admission of hearsay evidence of a
decedent’s state of mind with respect to the execution, revocation, identification, or terms of his
will. In Honey v. Hickey, 760 S.W.2d 81 (Ark. App. 1988), it was alleged that a decedent and
her husband had orally contracted to execute and not revoke mutual wills providing that the
surviving spouse would inherit certain property that would then be divided among the children in
a certain manner. Id. at 81. The decedent violated this alleged agreement by giving the property
to the daughters with a reservation of a life estate. Id. at 81-82. The court ruled that testimony
by the husband’s sister as to hearsay statements made by the husband and wife in her presence at
the time the wills were executed concerned the intent and state of mind of the testators at the
time the wills were executed and thus was not excluded under Arkansas Rule of Evidence
803(3). Id. at 83. In Okken v. Okken Estate, 348 N.W.2d 447 (N.D. 1984), a testatrix left her
entire estate to her second son and gave nothing to her first son. Id. at 449. The court held
evidence from the second son’s wife that the testatrix had told her of her bad relations with the
first son was admissible under Rule 803(3) as evidence of the testatrix’s mental, emotional, or


                                                10
physical condition at the time she made her will. Id. at 451. In Knesek v. Witte, 715 S.W.2d 192
(Tex. App. 1986), the court held that statements by a testatrix’s late husband to a witness that he
and the testatrix had made their wills and that all of the property was going to his nieces and
nephews was admissible under Texas Rule of Evidence 803(3) to show the existence of an oral
contract to make wills. Id. at 197. Similarly, evidence of statements made by Jim as to how he
intended to distribute his property should be admitted if such statements relate to the execution,
revocation, identification, or terms of his will.
         For the foregoing reasons, we reverse the district court’s decision affirming the
magistrate judge’s grant of summary judgment on the omitted spouse issue and affirm the district
court’s decision vacating the grant of summary judgment and remanding on the partnership
issue.   This matter will be remanded to the district court with instructions to vacate the
magistrate judge’s grant of summary judgment on both issues and to remand this case for
proceedings before the magistrate judge consistent with this opinion.
B. The dismissal of Nancy’s creditor’s claim must be affirmed.
         On November 8, 2004, Nancy filed a complaint against Mary and the estate alleging the
estate was unjustly enriched by Nancy’s contributions to the Alibi Bar. In January and February
of 2005, the attorneys for the parties discussed the possibility of Mary’s attorney accepting
service of process on Mary’s behalf. There is a dispute as to whether Mary’s attorney finally
agreed to do so. On June 1, 2005, Nancy’s attorney filed a motion for an order determining that
Mary had been served or, alternatively, enlarging the time for service to July 1, 2005, and the
district court entered an ex parte order extending the service date. Mary was never served with
the motion and only learned of the ex parte order by requesting a copy from the court clerk.
Nancy’s attorney finally served Mary with the complaint and summons on June 4, 2005, 6
months and 27 days after the complaint was filed.
         Following a status conference, the parties stipulated that the creditor’s suit would be
consolidated with the probate proceedings before the magistrate judge. The district court entered
an order consistent with the stipulation on July 21, 2005. Meanwhile, on June 23, 2005, Mary
filed a motion to dismiss the creditor’s suit pursuant to I.R.C.P. 4(a)(2), 12(b)(5), and 12(b)(8).
On October 25, 2005, the magistrate judge signed an order dismissing the creditor’s suit. The
magistrate judge based his dismissal on I.R.C.P. 4(a)(2) (mandatory dismissal where no good




                                                    11
cause shown for untimely service), 12(b)(5) (insufficiency of service of process), and 12(b)(8)
(another action pending between the same parties for the same cause).
        Nancy did not raise any objection to the I.R.C.P. 12(b)(8) grounds for dismissal before
the magistrate judge. Nancy also failed to address the 12(b)(8) grounds for dismissal in her
district court briefs, and the district court did not discuss 12(b)(8). This Court will not address an
issue not raised before the district court sitting in its appellate capacity. Barmore v. Perrone, 145
Idaho 340, 344, 179 P.3d 303, 307 (2008) (citing Craven v. Doe, 128 Idaho 490, 493, 915 P.2d
720, 723 (1996)). Therefore, we do not address Nancy’s arguments regarding I.R.C.P. 4(a)(2)
and 12(b)(5), as the magistrate judge’s 12(b)(8) basis for dismissal stands unchallenged. We
affirm the district court’s decision affirming the magistrate judge’s dismissal of the creditor’s
suit.
C. The magistrate judge should determine and award to Nancy a reasonable family
allowance.
        Nancy moved the magistrate court several times to grant her a family allowance pursuant
to I.C. § 15-2-404. At the September 28, 2005 hearing before the magistrate judge, the attorney
for the personal representative suggested that there was a possibility Nancy had already received
what she was entitled to under this provision and that Mary was therefore in the process of
having an accounting done to make that determination.             The attorney told the court the
accounting would be done in three to four weeks, and the magistrate judge replied:
                THE COURT: Could I get you to agree, when they get that accounting,
        that you have Judge Cockerille determine if there should be a family allowance,
        instead of ruling on it now?
                MR. STOPPELLO: Yes.
The resulting order stated that Mary believed Nancy had received proceeds in excess of the
family allowance and was therefore having an accounting prepared to address the issue. Nancy
filed an objection requesting the court set a January 1, 2006 deadline for the accounting to be
completed. The court rejected the request. Nancy renewed her request for family allowance at
the district court; however, the court made no mention of it. Mary has not completed the
accounting and has not paid any family allowance to Nancy. Nancy has requested that this Court
vacate the orders entered by the magistrate judge allowing Mary to defer making the accounting
and instruct the court to finally determine and pay her family allowance.
        The Idaho legislature repealed the family allowance provision, I.C. § 15-2-404, in the last
legislative session. 2008 S.L. ch. 182, § 4, p. 550. However, new legislation is not given


                                                 12
retroactive effect unless ―expressly so declared.‖ I.C. § 73-101. The legislation repealing I.C. §
15-2-404 does not provide for retroactive effect. Accordingly, we address this claim.
        The granting of a family allowance pursuant to I.C. § 15-2-404 is committed to the
discretion of the trial court. Matter of Bowman’s Estate, 101 Idaho 131, 136, 609 P.2d 663, 668
(1980) (holding no abuse of discretion by the trial court either in granting the family allowance
or in the amount thereof). Abuse of that discretion is found when the reviewing court is
convinced that the award was clearly arbitrary and manifestly unreasonable. Id.
        By declining to set a deadline for the accounting to be completed, the magistrate judge
effectively allowed Mary to withhold any allowance Nancy may have been entitled to throughout
the course of these proceedings, effectively denying Nancy her statutory entitlement. The
magistrate judge, rather than exercising his discretion in the matter, delegated the resolution of
the issue.    Although Mary’s attorney represented that the accounting would be complete
sometime around the end of October 2005, Mary has failed to complete the accounting even
now—three years later. The magistrate judge’s refusal to act was an abuse of discretion, and the
district court should have so held. We now remand with instructions to the district court to direct
the magistrate judge to determine and award to Nancy such family allowance as she is entitled
to, if any.
                                      IV. CONCLUSION
        We affirm the district court’s decision vacating the grant of summary judgment against
Nancy on the partnership issue. We reverse the district court’s decision affirming the grant of
summary judgment against Nancy on the omitted spouse issue. We remand with instructions
that the trial court rule on objections prior to deciding the motions for summary judgment. We
affirm the district court’s decision affirming the dismissal of the creditor’s claim. Finally, we
instruct the trial court to determine what, if any, family allowance is due to Nancy. In view of
the mixed result, no costs are awarded.

        Justices BURDICK, J. JONES, W. JONES and Justice Pro Tem KIDWELL, CONCUR.




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