               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38558

TIMOTHY M. WEIMAR,                               )     2012 Unpublished Opinion No. 401
                                                 )
       Plaintiff-Appellant,                      )     Filed: March 13, 2012
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
MARIE B. GALLEGOS,                               )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
       Defendant-Respondent.                     )     BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Kathryn A. Sticklen, District Judge; Hon. David E. Day,
       Magistrate.

       District court’s intermediate appellate decision upholding decree of divorce and
       judgment entered in the magistrate division, affirmed.

       Ian W. Gee, Garden Valley, for appellant.

       Respondent did not participate on appeal.
                ________________________________________________
WALTERS, Judge Pro Tem
       This is an appeal from an intermediate appellate decision of the district court, which
affirmed a decree of divorce and judgment entered in the magistrate division. The issue on
appeal relates to the determination of value of the community real property owned by the parties.
The district court upheld the decision of the magistrate.        We affirm the district court’s
intermediate appellate decision affirming the magistrate’s determination.
                                                I.
                                 FACTS AND PROCEDURE
       According to the facts found by the magistrate, the parties were married on July 3, 2005.
The appellant husband filed an action for divorce in 2009, and the matter was heard by the
magistrate in March 2010. During the trial, the parties agreed to the distribution of part of the
personal property that had been owned by each of them prior to the marriage and part of the
personal property that had been acquired during the marriage. They also agreed to a partial



                                                1
allocation of the debts between them. A major issue addressed at the trial concerned the value of
the parties’ residence in Garden Valley, Idaho, the amount of the indebtedness against that
property, and to whom the home should be awarded. Other issues related to the division of the
balance of the parties’ personal property and the allocations of the remainder of the parties’
debts. The magistrate’s distribution of the personal property and the allocation of debts other
than the indebtedness on the real property have not been challenged on this appeal.
       The real property had been acquired on August 18, 2005. Although the home was
originally titled solely in the respondent wife’s name, because of financing issues related to the
husband’s bad credit history, it was later refinanced and the wife quitclaimed the property into
both of their names. Neither party disputed that the real property was community in nature.
Based on the testimony of the parties and their witnesses and on the documents admitted in
evidence, the magistrate made the following findings of facts relevant to the disputed issues
concerning the real property (referring to the appellant as “Tim” and to the respondent as
“Marie”):
       1. As of January 6, 2010, $292,538.79 was owed on the Garden Valley property.
       This included $6,305.84 in unpaid interest and $2,185.60 in late charges. Neither
       party offered more current evidence of the debt secured by the Garden Valley
       property.
       2. An appraisal dated June 28, 2006 stated the value of the Garden Valley
       property at $370,000 using a sales comparison approach. A later appraisal done
       for Tim stated the value at $305,000 as of October 2, 2009 (identified as the
       “third” appraisal, but no other appraisal was mentioned). While the later appraisal
       is more current, it is suspect for a number of reasons. First, it shows the gross
       living area above grade at 179 sq. ft. less than the 2006 appraisal. Second, the
       comparable sales used were not from near proximity to the home because of the
       lack of comparable sales in the area. Finally, as Marie noted, the more recent
       appraisal notes the absence of a central heating system that Marie said had been in
       place and it is clear that Tim had removed some fixtures (an expensive stone sink
       is notable) from the home before the appraisal was done. On the other hand, the
       2006 appraisal gave a higher value even though the home was clearly unfinished
       at that time. The substantial additional work done after that appraisal would be
       expected to significantly increase the value of the home. No evidence was
       presented concerning market and economic changes that may have effected [sic]
       the value of the home. The current assessed value by the Boise County Tax
       Collector is $344,510. Based on the conflicting evidence, I find that the 2006
       appraisal, Exhibit A, more accurately states the value of the house and I find the
       house has a value of $370,000.
               ....



                                                2
       5. Throughout the course of this action and until the closing minutes of argument
       at the conclusion of the trial, a major issue was which party should be awarded the
       Garden Valley residence. In the end, Tim asked that it be awarded to him and
       Marie stated that she did not wish to have it because she was afraid for her safety
       if she lived there. Neither party asked that the residence be sold or divided in any
       way other than awarding it to Tim.

       In his conclusions of law, the magistrate stated:
               Pursuant to Idaho Code § 32-712, the court must assign the community
       property in such proportions as the court deems just. Unless there are compelling
       reasons otherwise, there is to be a substantially equal division in value,
       considering debts. This is a matter committed, in the first instance, to the
       discretion of the court, which discretion must be based on an exercise of reason
       and not abused. I find no reason for a division which is other than substantially
       equal, though it may not be mathematically identical.

       The magistrate then published a table setting forth the division of property and allocation
of debts between the parties. The table assigned a total value of property to the appellant in the
amount of $376,792 and debts of $339,140.            It assigned a total value of property to the
respondent in the amount of $12,542 and debts of $16,144.              In order to accomplish a
substantially equal division between the parties of their assets and debts, the magistrate
concluded that a payment by the appellant to the respondent of the sum of $20,627 was required.
The magistrate explained:
               Pursuant to the above table showing the assignment of community
       property and debt, Tim will receive a net distribution of $37,652, while Marie will
       receive a net of <$3,602>, as she is receiving more debt than property. The
       assignment of community property and responsibility for community debt set
       forth above was largely (though certainly not entirely) by agreement of the
       parties. It is impossible to accomplish the intent of the parties concerning
       assignment of the community residence and the various debts and still accomplish
       a substantially equal division. Since Tim is receiving $41,254 more in net
       community assets than is Marie, the division can only be equalized by granting
       Marie a judgment against Tim in the amount of $20,627.

       Judgment was entered accordingly, and the appellant timely appealed to the district court.
The district court affirmed the magistrate’s determination. The appellant appeals to this Court
from the district court’s intermediate appellate decision.




                                                 3
                                                II.
                                             ISSUES
       The appellant raises three issues.     First, he contends that the magistrate abused his
discretion when the magistrate disregarded the 2009 appraisal of the parties’ real property and
relied instead upon the appraisal from 2006 to establish the $370,000 evaluation of the property
in 2010. Next, the appellant asserts that the magistrate violated Idaho Rule of Evidence 402
when the magistrate admitted in evidence the 2006 appraisal. Finally, the appellant contends that
the magistrate abused his discretion when he ignored the valuation of $344,510 for the parties’
real property shown by the Boise County Tax Assessment.
                                               III.
                                  STANDARD OF REVIEW
       When reviewing a decision of the district court acting in its appellate capacity, this Court
directly reviews the district court’s decision. Mackowiak v. Harris, 146 Idaho 864, 865, 204
P.3d 504, 505 (2009). If substantial and competent evidence supports the magistrate’s findings
of fact, and the magistrate’s conclusions of law follow from those findings, and if the district
court affirms the magistrate, 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). 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. Where lower court decisions are matters of discretion, the trial court has broad
authority and will only be overturned if an abuse of discretion can be shown. See Hentges v.
Hentges, 115 Idaho 192, 195, 765 P.2d 1094, 1097 (Ct. App. 1988). An abuse of discretion will
be found if the magistrate failed to give consideration to relevant factual circumstances, Rohr v.
Rohr, 128 Idaho 137, 141, 911 P.2d 133, 137 (1996); Yost v. Yost, 112 Idaho 677, 680, 735 P.2d
988, 991 (1987); Margairaz v. Siegel, 137 Idaho 556, 558, 50 P.3d 1051, 1053 (Ct. App. 2002);
or if the magistrate’s findings are not supported by the evidence, Biggers v. Biggers, 103 Idaho
550, 555, 650 P.2d 692, 697 (1982); Rohr v. Rohr, 126 Idaho 1, 3, 878 P.2d 175, 177 (Ct. App.
1994); or if the magistrate does not correctly apply the law, Moffett v. Moffett, 151 Idaho 90, 93,
253 P.3d 764, 767 (Ct. App. 2011) (citing Nicholls v. Blaser, 102 Idaho 559, 561, 633 P.2d 1137,
1139 (1981)). See also Theiss v. Theiss, 112 Idaho 681, 682, 735 P.2d 992, 993 (1987). In
matters of discretion, we examine: (1) whether the lower court rightly perceived the issue as one


                                                4
of discretion; (2) whether the court acted within the boundaries of such discretion and
consistently with any rules applicable to specific choices; and (3) whether the court made its
decision by an exercise of reason. Hopper v. Hopper, 144 Idaho 624, 626, 167 P.3d 761, 763
(2007); Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993,
1000 (1991).
                                               IV.
                                         DISCUSSION
A.     Magistrate’s Discretionary Decision
       The appellant asserts that the magistrate abused his discretion by determining that, for the
purposes of dividing the community property and allocating the debts of the parties, the 2006
appraisal of the value of the parties’ residence should be used. He argues that the magistrate
failed to act within the boundaries of his discretion by improperly applying the applicable legal
standards. We disagree.
       The magistrate was presented with three statements of value of the real property: (1) the
2006 appraisal for $370,000; (2) the 2009 appraisal for $305,000; and (3) the 2010 Boise County
Tax Assessor’s valuation of $344,510. The appellant asserts that the magistrate should have
chosen the most recent appraisal to set the value of the real property, even though the magistrate
explained why he chose the 2006 appraisal.
       To say that the magistrate was required to choose one of these estimates over the other
two would remove from the magistrate the authority to exercise his discretion in determining
which of the values should be adopted for the purposes of dividing the parties’ assets and debts.
The magistrate, in his detailed decision containing his findings of fact and conclusions of law,
clearly indicated that he knew he was confronted with making a discretionary decision. He set
forth his rationale for using the 2006 appraisal rather than the 2009 appraisal. The magistrate
determined that the latter appraisal was “suspect” due to differences in the gross living area
reported, the lack of the use of comparable sales from nearby homes, and evidence that appellant
had removed some expensive fixtures and a heating system prior to the valuation.               The
magistrate noted that the 2006 appraisal was conducted prior to completion of the construction of
the residence. The magistrate reasoned that, had the construction been complete, it would have
significantly increased the value of the home after 2006. The magistrate specifically noted that
neither party presented any evidence concerning market and economic changes that might have


                                                5
affected the value of the home. Also, while the magistrate recognized that the Boise County Tax
Assessor’s valuation had been submitted as evidence, he was not obligated to accept it as the sole
and absolute basis for setting the value of the property, in the exercise of his discretion.
       We agree with the observation of the district court on the intermediate appeal. The
magistrate’s reasoning and conclusions depended largely on credibility determinations drawn
from conflicting evidence, which must be liberally construed in favor of the judgment entered.
Kohring v. Robertson, 137 Idaho 94, 99, 44 P.3d 1149, 1154 (2002) (citing Sun Valley Shamrock
Res., Inc. v. Travelers Leasing Corp., 118 Idaho 116, 118, 794 P.2d 1389, 1391 (1990). The
questions of credibility of witnesses, weight to be given the testimony and reasonable inferences
to be drawn from the evidence, are all matters solely within the province of the trial court.
Ransom v. Topaz Mktg., L.P., 143 Idaho 641, 643, 152 P.3d 2, 4 (2006). The inferences of the
magistrate were based on more than a scintilla of evidence and, therefore, were grounded on
substantial and competent evidence and made with an exercise of reason. The magistrate’s
decision clearly survives the scrutiny that the appellate courts utilize in examining the exercise of
a trial court’s discretion. Hopper, 144 Idaho at 626, 167 P.3d at 763; Sun Valley Shopping Ctr.,
119 Idaho at 94, 803 P.2d at 1000. We concur with the district court that the appellant has not
shown an abuse of discretion on the part of the magistrate.
B.     Idaho Rule of Evidence 402
       Appellant argues that the 2006 appraisal was not relevant for the purposes of the present
valuation of the real property at the time of trial in 2010 and that the magistrate, therefore,
violated Idaho Rule of Evidence 402 by admitting the 2006 appraisal as evidence. Rule 402
specifies, in relevant part, “Evidence which is not relevant is not admissible.”               Appellant
recognizes, however, that Idaho Rule of Evidence 401 also provides, “‘Relevant’ evidence
means evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence.”
       The record shows that although appellant objected to the admission of the 2006 appraisal
on grounds of relevancy, the magistrate admitted the appraisal into evidence after hearing
respondent’s counter-argument that the appraisal was relevant to show the amount of the original
loan against the property, to show that there was a discrepancy between the square footage
shown by the 2009 appraisal when compared with the 2006 appraisal, and to show that items


                                                  6
were missing from the 2009 appraisal that had been evaluated in the 2006 appraisal. Respondent
suggested a comparative usefulness for the appraisal as a challenge to the accuracy of the other
appraisals.
        Appellant now asserts that the admission of the 2006 appraisal was only for a limited
purpose and that the magistrate should not have used that evidence to arrive at the value of the
real property. We disagree. The transcript of the trial demonstrates that when the magistrate
overruled the appellant’s objection, the magistrate noted that “the older [the appraisal] is, the less
relevant it is . . .” and further noted that respondent was also “offering it for other purposes for
which it appears to be relevant.” (Emphasis added.) It is clear that the magistrate did not rule
that the evidence was only partially relevant, nor did he limit the scope or admissibility of the
evidence.
       The appellant’s assertion that the magistrate essentially acknowledged that the 2006
appraisal was irrelevant is incorrect. The clear holding of the magistrate as shown in the record
is that the 2006 appraisal could be less relevant than a more recent appraisal, but was
nevertheless relevant for other purposes, such as regarding the original loan value and to
challenge the accuracy of the other appraisals. The district court correctly observed that to the
extent the appellant has argued that the relevance was limited to square footage alone, and not
the final valuation, it is indisputable that square footage is directly relevant to the final valuation
and price of a property.      Furthermore, the magistrate completely and fully overruled the
appellant’s objection; he did not partially sustain the objection, partially overrule the objection,
or admit the appraisal only for a limited purpose. In making its ruling, the magistrate stated,
“The objection is overruled, and [the 2006 appraisal] will be admitted.” At that point, the 2006
appraisal was admissible and was relevant to the valuation of the residence. There was no
violation of the rules of evidence respecting relevancy of evidence.
C.     The 2010 County Tax Assessment
       Finally, the appellant argues that the magistrate erred when the magistrate did not adopt
the Boise County Tax Assessment of $344,510 as the value for the parties’ real property. The
appellant seems to believe that the magistrate reached his ultimate conclusion by simply
assuming that the 2006 appraisal figure remained accurate above all other appraisals, including
the tax assessment. However, as noted by the district court on the intermediate appeal, from a
reading of the magistrate’s reasoning as it appears in the record, the magistrate considered all the


                                                  7
evidence, including that the value of the home may have increased after the 2006 appraisal and
subsequently decreased after the market downturn, in addition to the removal of fixtures and lack
of a heating system that previously existed in the home. The magistrate gave the tax assessment
due consideration as an appropriate source of information, which was properly considered along
with other evidence and the magistrate’s own credibility determinations.              There is no
requirement that a trial court must accept a local tax assessment as the sole and exclusive
calculation for determining the value of property in a divorce action.
                                                V.
                                         CONCLUSION
       The magistrate did not abuse its discretion in arriving at the value of the parties’
community real property. The intermediate appellate decision of the district court, upholding the
decree of divorce and judgment, is affirmed.
       Judge MELANSON, CONCURS.
       Judge LANSING, SPECIALLY CONCURRING
       I concur in the foregoing opinion, but add some further explanation of my conclusion that
the magistrate’s valuation finding was justified by the evidence. As the Court’s opinion points
out, “The magistrate’s reasoning and conclusions depended largely on credibility determinations
drawn from conflicting evidence . . . .” The district court, on intermediate appeal, expanded on
this point, noting that “when the magistrate weighed the evidence he took additional factors into
consideration, including his credibility determinations regarding the parties. When the court
performed this analysis, it did so with all prior experience from having dealt with the parties, and
with its superior knowledge of the parties, circumstances, and issues involved.” The district
court then observed that Timothy Weimar’s admission to removing at least one fixture, an
expensive sink, from the house “has further implications than simply increasing the value by the
amount of the sink.     It allows the magistrate to make inferences as to Weimar’s overall
credibility, which appears to have been one factor heavily considered by the magistrate.” I
endorse the district court’s observations and note that there also was at trial other evidence that




                                                 8
may have undermined Weimar’s credibility in the eyes of the magistrate, including evidence that
he had altered a document that he proffered as evidence. 1
       On this record, Weimar has not shown that the magistrate’s valuation finding, which was
based in part on credibility determinations, was unsupported by the evidence.




1
        Our record also includes a judgment of conviction for criminal contempt against Weimar,
which was issued after the divorce trial and decree but was based upon a motion and affidavit
filed prior to the trial in this matter. The contempt judgment states that the court found beyond a
reasonable doubt that Weimar, either in person or through an agent, deleted files and documents
from a computer “in willful violation of the court’s orders.” The court found that his actions
“prevented Ms. Gallegos from properly preparing for trial of the divorce action and prevented
the court from having evidence necessary to determine the value and appropriate division of
community assets.” The magistrate court then concluded: “Given the willfulness of
Mr. Weimar’s acts and the impact it had on the ability of the court to fairly determine the
underlying divorce action, and given that Mr. Weimar provided demonstrably dishonest
testimony at the contempt trial showing his continued contempt of the authority of the court, I
find that the maximum penalty provided by statute is warranted.” Weimar does not challenge the
contempt determination in this appeal.

                                                9
