                  IN THE SUPREME COURT OF THE STATE OF IDAHO

                                         Docket No. 39789

PEDRO A. PELAYO,                                      )
                                                      )
                                                             Idaho Falls, May 2013 Term
     Plaintiff-Appellant,                             )
                                                      )
                                                             2013 Opinion No. 76
v.                                                    )
                                                      )
                                                             Filed: June 21, 2013
BERTHA ALICIA PELAYO,                                 )
                                                      )
                                                             Stephen W. Kenyon, Clerk
    Defendant-Respondent.                             )
______________________________________                )

        Appeal from the District Court of the Seventh Judicial District of the State of Idaho,
        Bingham County. Hon. Darren B. Simpson, District Judge.

        The decision of the district court is affirmed.

        Jonathan W. Harris, Blackfoot, for appellant.

        David N. Parmenter, Blackfoot, for respondent.
                                  _____________________


J. JONES, Justice.
        Pedro Pelayo appealed certain rulings of the magistrate court in his divorce action,
including the award of spousal maintenance to his wife, Bertha. The district court upheld the
challenged rulings and Pedro appealed to this Court.
                                         I.
                          FACTUAL AND PROCEDURAL HISTORY
        Pedro and Bertha were married in Mexico on May 7, 1984. During the course of their
marriage they had three children. However, at the time of their divorce proceedings, only one of
their children, A.P., born in 1992, was a minor. While married, Pedro and Bertha acquired three
pieces of real property: (1) a home in Blackfoot, located on Airport Road (the Airport Road
Property); (2) land on the Fort Hall Indian Reservation (the Fort Hall Property); and, (3) property
purchased in Mexico. Their primary residence before the divorce was the Airport Road Property.
        On June 18, 2009, Pedro filed a complaint for divorce, alleging that irreconcilable
differences prevented continuation of the marriage. Bertha filed a counterclaim along with her



                                                  1
answer, seeking divorce on grounds of adultery.
        Prior to trial, the parties entered into a stipulation. The stipulation provided in relevant part:
(1) Bertha would have actual physical custody of A.P.; (2) Pedro would take the Fort Hall Property
with an assigned value of $125,000; (3) the Airport Road Property would be listed and sold as soon
as possible, but that in the meantime Bertha could continue to reside there; (4) Pedro would
continue to make payments on the Airport Road Property until it sold; and (5) after the sale of the
Airport Road Property, Pedro would pay Bertha $62,500, representing her one-half interest in the
Fort Hall Property.
        The magistrate court accepted the parties’ stipulation and the matter proceeded to a court
trial. On May 18, 2010, the magistrate court issued its Memorandum Decision and Judgment
Regarding Divorce, Custody and Child Support. The Memorandum Decision provides that: (1)
irreconcilable differences warranted granting the divorce; (2) Bertha is entitled to the Mexico
Property without an offset; (3) Pedro’s average gross income is $49,000 1 and his monthly child
support payment is $558; (4) Pedro must pay Bertha $800 per month in spousal maintenance for
seven years and $400 per month thereafter until Bertha is age sixty-two (six additional years); and
(5) Pedro must pay a portion of Bertha’s attorney fees, not to exceed $2,500.
        The Memorandum Decision noted that evidence was provided by Bertha that “gave the
court high suspicion of adulterous behavior on the part of Pedro,” and that “neither party had been
particularly kind to one another for a significant period.” Ultimately, the magistrate court found
that “the marriage [was] irretrievably broken and the differences between the parties appear as the
primary ‘cause’” for the divorce. Accordingly, on September 1, 2010, the magistrate court issued a
Decree of Divorce, citing irreconcilable differences as the grounds for divorce.
        Pedro appealed the magistrate’s decision to district court. In his appeal brief, Pedro argued
that the magistrate court erred by: (1) awarding the Mexico Property to Bertha without an offset or
credit in his favor; (2) considering his alleged adultery in making a spousal maintenance award; (3)
awarding Bertha spousal maintenance that was punitive and amounted to permanent support; (4)
setting his annual income for the purposes of child support at $49,000; and (5) awarding Bertha
attorney fees.
        The district court held oral argument on November 28, 2011, and issued its Decision and

1
  Although the magistrate court found that Pedro’s average gross income was approximately $49,000.00, the court
set his income for the purpose of calculating child support payments at $45,000 after finding that $4,000 of Pedro’s
income was for voluntary overtime and not to be included in calculating child support. See infra Part C.


                                                         2
Order on Appeal on January 23, 2012. The district court affirmed the magistrate court on all counts
except its disposition of the Mexico Property, which is not at issue in this appeal. Following the
decision of the district court, Pedro timely filed a notice of appeal to this Court.
                                                       II.
                                            ISSUES ON REVIEW
    I.          Did the district court abuse its discretion by affirming the magistrate’s award
                of spousal maintenance to Bertha?
    II.         Did the district court err in affirming the magistrate court’s finding that
                Pedro’s annual income was $49,000 for the purposes of calculating his child
                support payments?
    III.        Did the district court abuse its discretion by affirming the magistrate court’s
                award of attorney fees to Bertha under I.C. § 32-704(3)?
    IV.         Is either party entitled to attorney fees on appeal?
                                                  III.
                                              DISCUSSION
           A.      Standard of Review.
           When this Court reviews the decision of a district court sitting in its capacity as an
appellate court, the standard of review is as follows:
           The Supreme Court reviews the trial court (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. 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.
Bailey v. Bailey, 153 Idaho 526, 529, 284 P.3d 970, 973 (2012) (quoting Losser v. Bradstreet,
145 Idaho 670, 672, 183 P.3d 758, 760 (2008)). Thus, this Court does not review the decision of
the magistrate court. Id. “Rather, we are ‘procedurally bound to affirm or reverse the decisions of
the district court.’” Id. (quoting State v. Korn, 148 Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1
(2009)).
           Prior to Losser, when this Court reviewed a district court acting in its appellate capacity
the standard of review was: “when reviewing a decision of the district court acting in its
appellate capacity, this Court will review the record and the magistrate court’s decision
independently of, but with due regard for, the district court’s decision.” Losser, 145 Idaho at 672,
183 P.3d at 760. After Losser, this Court does not directly review a magistrate court’s decision.
Id. Rather, it is bound to affirm or reverse the district court’s decision. See Bailey, 153 Idaho at
529, 284 P.3d at 973; Korn, 148 Idaho at 415 n.1, 224 P.3d at 482 n.1.


                                                    3
        In this case, both Pedro and Bertha have misstated the standard of review that this Court
applies to appeals from the district court acting in its appellate capacity. Both parties’ arguments
on appeal ask this court to directly review the decisions of the “trial court,” which was the
magistrate court in this case. This presents a potential problem because under Losser we are
procedurally bound to focus our review on the decision of the district court. However, since the
issues raised on appeal are primarily based on factual determinations made by the magistrate
court and because under Losser we still review the magistrate record to determine whether
substantial, competent evidence supports the challenged factual determinations of the magistrate,
we will proceed to consider the appeal. Litigants who fail to properly comprehend the standard
of review for an appeal from the district court should not assume that this will always be the
case.
        B.     The district court did not err in affirming the magistrate court’s spousal
               maintenance award.
        In its Memorandum Decision, the magistrate court ordered Pedro to pay Bertha spousal
maintenance of $800 per month for seven years, commencing July 1, 2010, and $400 per month
until Bertha reaches age sixty-two, an additional six years. The magistrate court found that spousal
maintenance was warranted because even with an unequal distribution of the marital assets, Bertha
would have a cash flow problem due to lack of employment, lack of English speaking skills, and
limited employment history. The magistrate court stated that “Pedro, on the other hand, will have
ongoing income around $50,000 per year plus benefits, a paid-for piece of real property and
virtually no consumer debt.”
        The district court upheld the magistrate court’s spousal maintenance award. The district
court determined that the magistrate court had considered the relevant factors for awarding spousal
maintenance, acted consistently with the legal standards, and reached its decision through an
exercise of reason. Furthermore, the district court found that the magistrate’s Memorandum
Decision “was supported by substantial, competent evidence in the record and his conclusions
follow from his findings.”
        Pedro argues on appeal that the magistrate court erred in making a spousal maintenance
award because: (1) Pedro’s alleged adultery should not have been considered in making the award;
(2) the court abused its discretion by awarding Bertha spousal maintenance when she can support
herself; and, (3) the spousal maintenance award was punitive rather than rehabilitative. Although
Pedro argues that magistrate court erred in granting the award, we must review the district court’s


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affirmance.
               1.      A trial court may consider fault, including alleged adultery, in making
                       an award of spousal maintenance.
       Based on the factors in I.C. § 32-705, the magistrate court found that Bertha lacked
sufficient income to support herself even with full time employment available to her. Specifically,
the court considered Bertha’s “lack of employment, lack of English speaking skills and limited
recent employment history” before ordering that Pedro pay Bertha monthly spousal support.
Additionally, in an unrelated portion of the Memorandum Decision addressing the “Grounds for
Divorce,” the magistrate judge stated “[c]ertainly, evidence was provided that gives the court high
suspicion of adulterous behavior on the part of Pedro, which the court has considered when
addressing spousal support.”
       On appeal to this Court, Pedro argues that the magistrate court erred as a matter of law by
improperly considering his alleged adultery in making the maintenance award. Pedro argues that
where a divorce is granted based on irreconcilable differences, the fault of either party should not
be considered in awarding spousal maintenance. Additionally, Pedro argues that even if adultery
could be considered in making a spousal maintenance award, it should not be in this case because
Bertha failed to prove that he committed adultery by “very clear and conclusive” evidence.
       Bertha contends that Pedro’s adultery argument is without merit for two reasons. First,
Pedro has not produced any case law, nor does any exist, which establishes that adultery should not
be considered in making a spousal maintenance award where a divorce is predicated on
irreconcilable differences. Second, Bertha argues that I.C. § 32-705 does not require that “fault” be
proven by very clear and convincing evidence. Alternately, Bertha contends that even if Pedro’s
alleged adultery should not have been considered by the magistrate court, enough of the factors
from I.C. § 32-705 remain satisfied to justify the maintenance award.
       Pedro made precisely the same argument to the district court, which found that Pedro’s
argument lacked merit because the spousal maintenance statute, I.C. § 32-705, explicitly listed
“fault” as a factor that may be considered in making a spousal maintenance award. The district
court concluded that the magistrate judge had “substantial and competent evidence, coupled with
his judgment of the credibility of the witnesses, upon which to find that both parties bore some
fault in the disintegration of the marriage, but that Bertha was the more innocent of the two.”
Additionally, the district court concluded that even if fault had not been considered by the
magistrate court, the remaining factors from I.C. § 32-705 supported the award.


                                                 5
       Spousal maintenance awards are governed by I.C. § 32-705, 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.
(Emphasis added). Fault is not a prerequisite to an award of spousal maintenance. Tisdale v.
Tisdale, 127 Idaho 331, 334, 900 P.2d 807, 810 (Ct. App. 1995). However, it is one of the many
factors that I.C. § 32-705 allows the trial court to consider in ordering an award of spousal
maintenance. Id.; I.C. § 32-705(2)(g).
       Pedro’s claim that the court erred in considering his alleged adultery in granting spousal
maintenance to Bertha is without merit. First, marital fault, which includes adultery, is one of the
many factors that I.C. § 32-705 expressly allows a trial court to consider when making a spousal
maintenance award. Second, nothing in the statutory language or this Court’s previous
interpretation of I.C. § 32-705 requires that fault be shown by “very clear and conclusive”
evidence as Pedro suggests. It is clear from Pedro’s briefing that in making his “very clear and
conclusive” evidence argument he has confused the standard for showing “fault” with the
standard for granting a divorce based on adultery. Pedro cites to Brammer v. Brammer, 93 Idaho
671, 471 P.2d 58 (1970), to support his claim that adultery may only be considered when it is
proven by “very clear and conclusive” evidence. In Brammer, this Court stated, “it is a matter of
public policy that divorces, especially on the ground of adultery, should be granted only upon
very clear and conclusive evidence.” Id. at 674, 471 P.2d at 61. Thus, Brammer’s “very clear and
conclusive” standard is only warranted when proving adultery as the grounds for divorce, not for



                                                 6
showing “fault” under I.C. § 32-705. Furthermore, Pedro’s alleged adultery is irrelevant in this
appeal because the district court found that the spousal maintenance award in this case was
warranted regardless of Pedro’s fault because after the divorce “Bertha would not have sufficient
property to provide for her reasonable needs and would be unable to support herself though
employment.”
               2.      The magistrate court did not abuse its discretion by granting Bertha
                       spousal maintenance.
       On appeal to this Court, Pedro argues that it was an abuse of discretion for the magistrate
court to grant Bertha a spousal maintenance award because she did not meet the threshold
requirements. The basis of Pedro’s argument is that “[c]learly, Bertha can support herself through a
combination of the property she received and through employment income.” Furthermore, Pedro
contends that based on Bertha’s current circumstances she “can live on the $16,000 to $17,000 per
year she can earn as” a minimum wage worker.
       Bertha argues that the award of spousal maintenance is left to the sound discretion of the
trial court. Furthermore, Bertha contends that without spousal maintenance, the marital property
she received in the divorce is not sufficient under I.C. § 32-705(1)(a) to “provide for her needs
according to the standard of living established during the marriage.” Bertha also contends that the
maintenance award was proper because under I.C. § 32-705(1)(b) the evidence showed that she
would be unable to support herself otherwise.
       Pedro made the same argument on appeal to the district court. Finding no merit in Pedro’s
argument, the district court upheld the spousal maintenance award. The district court recognized
that perhaps Bertha could meagerly support herself though the sale of all her assets, teamed with
her potential employment income. However, the district court found that whether a dependent
spouse can merely support themselves is not the test to determine if spousal maintenance is
warranted. Rather, the proper inquiry is whether spousal maintenance is necessary to support the
dependent spouse’s “standard of living established during the marriage.” Because of the disparity
in income between Pedro and Bertha, and the obvious decrease in Bertha’s standard of living after
the divorce, the district court found that the spousal maintenance award was proper.
       “Whether to award spousal maintenance under [I.C. § 32-705] 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). “[R]eview of a lower court’s exercise
of discretion is conducted under a three-tiered inquiry: ‘(1) whether the lower court rightly


                                                 7
perceived the issue as one of discretion; (2) whether the court acted within the outer boundaries
of such discretion and consistently with any legal standards applicable to specific choices; and
(3) whether the court reached its decision by an exercise of reason.’” Id. at 678, 152 P.3d at 549
(quoting Chandler v. Chandler, 136 Idaho 246, 249, 32 P.3d 140, 143 (2001)).
        The district court did not err in affirming the magistrate court’s award of spousal
maintenance because the magistrate court did not abuse its discretion in ordering the award. First,
the magistrate court perceived the issue as being one of discretion—this is evident from the
magistrate’s Memorandum Decision. Second, the magistrate court, in ordering Pedro to pay Bertha
spousal maintenance, acted within the outer bounds of its discretion and consistently with the law.
The magistrate court recognized that spousal maintenance was governed by I.C. § 32-705 and
proceeded to find that maintenance was warranted because, after the divorce, Bertha lacked
sufficient income to provide for her reasonable needs or to support herself, even with full time
employment. Third, the magistrate court reached its decision though an exercise of reason.
Because the magistrate court did not abuse its discretion by ordering Pedro to pay spousal
maintenance, it was not an error for the district court to affirm the magistrate court’s order.
                3.      The sum and duration of Bertha’s spousal maintenance award did not
                        amount to a punitive award.
        As an alternative argument, Pedro contends that even if the magistrate court did not err by
granting a spousal maintenance award, the amount and duration of the award was punitive rather
than rehabilitative. Pedro argues that the thirteen-year award is “defective because it amounts to an
award of permanent maintenance whereby Bertha has no incentive to get full time employment”
and should be reversed or modified. Furthermore, Pedro argues that the award cannot be upheld
because Bertha failed to “buttress her claims for spousal maintenance with a budget or
enumeration of her expenses.”
        In response, Bertha argues that just because the magistrate court considered Pedro’s alleged
adulterous behavior does not make the spousal maintenance award punitive. Bertha further argues
that it is clear from the Memorandum Decision that the spousal maintenance award was designed
to fill the financial gap left after the parties’ divorce, not to punish Pedro. Bertha contends that
multiple factors from I.C. § 32-705(2) support affirming the duration of the maintenance award.
First, pursuant to subsection (2)(a), Bertha argues that without spousal maintenance she would not
be able to independently meet her own needs. Second, Bertha argues under subsection (2)(c) that
the long duration of the parties’ marriage―twenty-six years―warrants a substantial award. Third,


                                                   8
under subsection (2)(d), Bertha argues that the award was proper because her age, and physical and
emotional condition demonstrate that her income potential is limited and will become increasingly
limited as she ages. Lastly, Bertha argues that the award was proper because, under subsection
(2)(e) Pedro will be able to support himself even in light of the spousal maintenance award.
        In response to Pedro’s argument that Bertha’s spousal maintenance award was punitive, the
district court stated:
        As for [the magistrate’s] spousal maintenance award being punitive, rather than
        rehabilitative, given the disparity in income levels between Bertha and Pedro,
        Bertha’s limited ability to speak English, her age, and her minimal prior work
        history, the award is hardly punitive to Pedro. Indeed, under the circumstances
        presented in the record, much less of an award to Bertha would have, for all intents
        and purposes, been akin to punishment for having supported her family by staying
        home. Even with the award, and her entry into the workforce, Bertha is left much
        lower on the economic scale than is Pedro.
        “Under I.C. § 32-705(1), the trial court may grant support where the spouse seeking the
award has shown that he or she (a) lacks sufficient property to provide for his or her reasonable
needs; and (b) is unable to support himself or herself through employment. Reasonable needs,
under Idaho law, account for the standard of living established during the marriage.” Stewart,
143 Idaho at 680, 152 P.3d at 551. The duration of a spousal maintenance award should be
determined through an analysis of the factors listed in I.C. § 32-705(2), which include “duration
of the marriage; the age, physical condition, resources, and employability of the spouse seeking
the award; the ability of the spouse from whom the award is sought to provide it; the fault of
either party; and any tax consequences.” Id. This Court “do[es] not expect mathematical
precision in calculating to the dollar how much maintenance is required, nor must the record
support a specific amount. There must simply be substantial and competent evidence which
provides a basis for the amount awarded.” Wilson v. Wilson, 131 Idaho 533, 536, 960 P.2d 1262,
1265 (1998).
        The district court’s holding that the magistrate’s spousal maintenance award was not
punitive is supported by the magistrate court’s record. The magistrate judge, at a post-trial motion
hearing stated that “the maintenance award was primarily based on need” and that “[t]he fault
factor was a factor, but only that.” No evidence indicates that the magistrate court awarded
Bertha spousal maintenance in order to punish Pedro. Rather, the weight of the evidence supports
the conclusion that Bertha was awarded spousal maintenance because she lacked sufficient
property to support herself and was unable to support herself through employment.


                                                 9
       In 2007, Pedro earned $48,675 and in 2008, he earned $50,980. The record indicates that
Bertha only worked periodically in the warehouse of Wada Farms from 1997 to 2006. Bertha
testified that her work with Wada consisted of planting and harvesting potatoes and working in the
company’s warehouse—labor that the magistrate recognized had “significant physical demands.”
While working at Wada Farms, Bertha earned approximately $4,000 in 2002, $7,262 in 2003,
$13,120 in 2004, $15,503 in 2005, and $8,665 in 2006, before leaving to care for her
grandchildren. Importantly, the magistrate court did not award Bertha indefinite support. Instead,
the magistrate judge tied the length of his award—thirteen years—to the age at which Bertha will
first be eligible for Social Security, sixty-two, a fact that this Court found very persuasive in
Stewart. See Stewart, 143 Idaho at 680, 152 P.3d at 551 (upholding a twelve year spousal
maintenance award that provided support to a dependent wife until she reached age sixty-two).
       Furthermore, the magistrate court correctly considered factors from I.C. § 32-705(2) in
order to set the amount and duration of the award. The magistrate noted that: (1) Bertha lacked
English language skills; (2) was currently unemployed; (3) lacked any significant employment
history; (4) had been married to Pedro for twenty-six years; and, (5) that Pedro would be able to
meet his needs while helping to meet Bertha’s. Lastly, the fact that Bertha did not provide the
magistrate court with a budget or enumeration of her expenses is irrelevant because mathematical
precision in calculating a spousal maintenance award is not required. The district court
appropriately affirmed the magistrate’s decision on this issue.
       C.      While the district court mistakenly assumed that Pedro’s gross income for the
               purpose of child support payments was $49,000, such error did not affect
               Pedro’s substantial rights.
       On appeal to this Court, Pedro argues that the magistrate court erred in setting his annual
income for the purpose of child support payments at $49,000. Specifically, Pedro argues that the
magistrate court erred when it included his overtime wages, $14,000 per year, in his gross income
for the purposes of calculating his child support payment. He claims those overtime wages were
voluntarily earned, and as such should have been excluded under section 6(a)(1)(ii) of the Idaho
Child Support Guidelines (I.C.S.G.).
       Bertha argues that Pedro’s overtime income should not be deducted from his gross income
for the purpose of calculating his child support payments, because he failed to provide the requisite
evidence for income to be excepted under I.C.S.G. § 6(a)(1)(ii).
       On appeal to the district court, Pedro made the same argument—that the magistrate court


                                                 10
erred in setting his annual income at $49,000 because $14,000 was from voluntary overtime work,
and voluntary income should be excluded from his gross income for the purposes of calculating his
child support payments under I.C.S.G.§ 6(a)(1)(ii). The district court, believing that the magistrate
court set Pedro’s child support income at $49,000, found that substantial and competent evidence
supported setting Pedro’s annual child support income at $49,000.
       The Idaho Child Support Guidelines define the term “Gross Income” as “income from
any source, and includes, but is not limited to, income from salaries, wages, commissions,
bonuses.” I.C.S.G. § 6(a)(1)(i). However, income received from employment in excess of a forty
hour week shall be excluded from gross income under the Guidelines if the party demonstrates
and the Court finds that:
       (1) the excess employment is voluntary and not a condition of employment; and
       (2) the excess employment is in the nature of additional, part-time employment, or
       is employment compensable as overtime pay by the hour or fractions of the hour,
       and (3) the party’s compensation structure has not been changed for the purpose
       of affecting a support or maintenance obligation, and (4) the party is otherwise
       paid for full time employment at least 48 weeks per year, and (5) child support
       payments are calculated based upon current income.
I.C.S.G. § 6(a)(1)(ii). The district court found that “Pedro offered none of this evidence” and
only provided vague testimony that his overtime was voluntary, which was contradicted by other
witnesses. As a result, the district court affirmed the magistrate’s court’s gross income
calculation, which it mistakenly believed to be $49,000.
       Although both parties represented to the district court that Pedro’s gross income for the
purpose of calculating child support was set by the magistrate at $49,000, the record shows that
the magistrate court set Pedro’s income at $45,000. As a maintenance worker at General Mills,
Pedro earned an hourly wage of $16.23. Accordingly, Pedro’s base annual income, working forty
hours per week, was $35,000. However, because Pedro was also compensated for his overtime,
his average annual wage for 2007 and 2008 was $49,000. At trial, Pedro attempted to show that
the $14,000 per year that he received in overtime was voluntary and, as such, should not be part
of his gross income for the purpose of calculating his child support payment.
       The magistrate court record never expressly indicates whether I.C.S.G. § 6(a)(1)(ii) was
invoked in order to exclude some portion of Pedro’s overtime income. However, the Case
Summary accompanying the Memorandum Decision expressly states that Pedro’s “ICSG
income” is $45,000. Additionally, at a post-trial motion hearing the magistrate judge indicated



                                                 11
that he had decreased Pedro’s annual income under I.C.S.G. § 6(a)(1)(ii), stating:
       [T]his is one of those balancing situations where I see that the, the technical
       requirements of proving overtime potentially are, are -- involuntarily overtime are
       not met, but kind of overgirding [sic] that whole thing is that these are his average
       earnings. His average earnings are higher than that for a significant period… So I,
       I sort of adjusted it downward from his average earnings taking, taking into
       consideration that, you know, he -- some of that was certainly voluntary, but he
       had -- a good chunk of that was voluntary as well.
(Emphasis added). Based on the Case Summary and the magistrate judge’s language, the record
shows that Pedro’s annual income for the purpose of child support was set at $45,000.
       It is not entirely clear that the district court adopted the $49,000 income figure, but it is
understandable that it might have done so. Both parties contended, incorrectly, that the
magistrate had established the $49,000 figure. It appears that both parties were laboring under a
misimpression as to what the magistrate had done and that this resulted in the district court’s
error. However, the error is harmless and of no import. See I.R.C.P. 61 (“The court at every stage
of the proceeding must disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties.”) The magistrate court found, and the district court agreed, that
Pedro had failed to establish the amount of overtime that was strictly voluntary in nature and
Pedro has not directly attacked the $555.74 per month support payment that the magistrate
determined to be appropriate.
       D.      The district court did not err in affirming the magistrate court’s grant of
               attorney fees to Bertha.
       In its Memorandum Decision, the magistrate court ordered Pedro to pay a portion of
Bertha’s attorney fees in an amount not exceeding $2,500. The magistrate court found that I.C. §
32-704(3) allowed it to apportion attorney fees to Bertha based on the parties’ financial resources.
The magistrate court cited to Jensen v. Jensen, 128 Idaho 600, 602, 917 P.2d 757, 759 (1996), to
conclude that a disparity in income alone is sufficient to support a finding that the higher income
spouse should pay a share of the other spouse’s attorney fees.
       The district court affirmed, finding that the magistrate court properly considered the
relevant factors outlined in I.C. § 32-704(3), and that substantial and competent evidence of the
disparity in income warranted saddling Pedro with a portion of Bertha’s attorney fees.
       On appeal to this Court, Pedro argues that the magistrate court abused its discretion by
requiring that he pay a portion of Bertha’s attorney fees. Pedro argues that the magistrate court
abused its discretion for two reasons: (1) Jensen does not stand for the proposition that disparity in


                                                 12
income alone is sufficient to support a finding that the higher income spouse should pay the other
party’s attorney fees; and, (2) the magistrate court did not make any specific findings under I.C. §
32-704(3). Bertha contends that Pedro is incorrect on both grounds and that the magistrate court’s
award of attorney fees under I.C. § 32-704(3) was supported by the evidence and the law.
       Idaho Code 32-704(3) provides:
       The court may from time to time after considering the financial resources of both
       parties and the factors set forth in section 32-705, Idaho Code, order a party to
       pay a reasonable amount for the cost to the other party of maintaining or
       defending any proceeding under this act and for attorney’s fees.

“Section 32-705 sets forth a number of factors which the court must consider in determining
whether to order a party to pay the costs and fees of the other party in a domestic relations
matter.” Noble v. Fisher, 126 Idaho 885, 891, 894 P.2d 118, 124 (1995). Relevant factors from
I.C. § 32-705 include: “the financial resources of the spouse seeking [attorney fees], including
the marital property apportioned to said spouse, and said spouse’s ability to meet his or her needs
independently.” I.C. § 32-705(2)(a). “[I]n order for an appellate court to uphold a lower court’s
award of attorney fees pursuant to I.C. [§] 32-704, the lower court must have considered and
cited factors listed in I.C. [§] 32-705 in its decision.” Jensen, 128 Idaho at 606, 917 P.2d at 763
(citing Noble, 126 Idaho at 891, 894 P.2d at 124). “Unless the court’s decision cites the
legislative factors and demonstrates that such factors were considered, the award of attorney fees
is subject to being reversed and remanded.” Id.
       In this case, the magistrate court extensively analyzed the factors listed in I.C. § 32-705,
and cited to them prior to awarding Bertha attorney fees. The magistrate specifically considered:
Bertha’s inability to support herself, the longevity of the parties’ marriage, and Bertha’s limited
English skills, age, and lack of employment history. The court also considered the fact that Pedro
would be able to adequately care for himself in light of the spousal maintenance award. Because
the magistrate court properly considered and cited to the factors listed in I.C. § 32-705, the
district court did not err in affirming Bertha’s award of attorney fees.
       E.       Bertha is entitled to attorney fees on appeal under I.C. § 12-121.
       Both parties argue that they are entitled to attorney fees on appeal under I.C. § 12-121.
Pedro argues that he is entitled to attorney fees because Bertha cannot defend the magistrate
court’s ruling, which was full of obvious and prejudicial errors, without doing so in a frivolous
manner. Conversely, Bertha believes that Pedro has pursued this appeal frivolously and


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unreasonably by ignoring the rulings of both the magistrate court and the district court.
       Under I.C. § 12-121, “[i]n any civil action, the judge may award reasonable attorney’s
fees to the prevailing party.” I.C. § 12-121. “An award of attorney fees under [I.C.] § 12-121 is
not a matter of right to the prevailing party.” Michalk v. Michalk, 148 Idaho 224, 235, 220 P.3d
580, 591 (2009). However, I.C. § 12-121 “permits the award of attorney[] fees to the prevailing
party if the court determines the case was brought, pursued or defended frivolously,
unreasonably or without foundation.” Commercial Ventures, Inc. v. Rex M. & Lynn Lea Family
Trust, 145 Idaho 208, 218–19, 177 P.3d 955, 965–66 (2008). When deciding whether attorney
fees should be awarded under I.C. § 12-121, the “entire course of the litigation must be taken
into account and if there is at least one legitimate issue presented, attorney fees may not be
awarded even though the losing party has asserted other factual or legal claims that are frivolous,
unreasonable, or without foundation.” Michalk, 148 Idaho at 235, 220 P.3d at 591.
       In this case, Bertha is the prevailing party and we find that Pedro has pursued this appeal
frivolously and without foundation. He has merely retreaded arguments made without success
below. We are asked to second-guess decisions that were properly made by the magistrate judge
and upheld by the district judge. Accordingly, Bertha is entitled to attorney fees under I.C. § 12-
121.
                                              IV.
                                          CONCLUSION
       The decision of the district court, acting in its appellate capacity, is affirmed.
Additionally, Bertha, as the prevailing party, is entitled to attorney fees and costs on appeal.


       Chief Justice BURDICK, and Justices EISMANN, W. JONES and HORTON CONCUR.




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