                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 42588




KRISSY M. LAMONT,                                    )
                                                     )
     Plaintiff-Respondent,                           )   Boise, March 2015 Term
                                                     )
v.                                                   )   2015 Opinion No. 40
                                                     )
MATTHEW J. LAMONT,                                   )   Filed: April 21, 2014
                                                     )
    Defendant-Appellant.                             )   Stephen W. Kenyon, Clerk
_____________________________________                )




       Appeal from the Magistrate Court of the Seventh Judicial District of the
       State of Idaho, Lemhi County. Hon. Stephen J. Clark, Magistrate Judge.

       The order of the magistrate court is affirmed. Attorney’s fees and costs on
       appeal to respondent.

       Law Office of Joshua A. Garner, PLLC, Rexburg, attorneys for appellant.
       Joshua A. Garner argued.

       Snook Law Office, Salmon, and Brady Law, Chtd., Boise, attorneys for
       respondent. Chip D. Giles argued.
                                ________________________

W. JONES, Justice
                                    I. NATURE OF THE CASE
       This expedited, permissive appeal presents a child custody dispute. Appellant Matthew
Lamont and Respondent Krissy Lamont were married and have two minor children. After the
divorce, Krissy was granted primary physical custody of the children, and until recently Krissy
and Matthew resided in Salmon, Idaho. In June of 2014, however, Matthew learned that Krissy
planned to relocate with the children to Meridian, Idaho. He filed a petition in magistrate court to
modify the divorce decree to obtain primary physical custody of the children. Krissy filed a




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cross-petition to relocate the children to Meridian. After a hearing, the magistrate court denied
Matthew’s motion and granted Krissy’s motion. Matthew appeals to this Court. We affirm.
                            II. FACTUAL AND PROCEDURAL BACKGROUND
          On May 29, 2009, Krissy and Matthew divorced. Krissy and Matthew have two minor
children: T.L. and M.L., who were thirteen years old and eleven years old, respectively, at the
time of the magistrate court’s decision. Krissy was granted primary physical custody of the
children after the divorce, and Matthew had visitation consisting of six overnights every other
week and “a two week block” in the summer. Under this visitation schedule, the children spent
approximately sixty percent of their time with Krissy and forty percent of their time with
Matthew. The visitation schedule was based on Krissy and Matthew both residing in the Salmon
area. 1
          On June 18, 2014, Matthew filed a petition for modification of the child custody order.
Matthew alleged that Krissy intended to relocate the children from Salmon. He requested that the
magistrate court grant him primary physical custody of the children. On June 27, 2014, Krissy
answered and filed a counter-petition for modification, seeking to relocate the children from
Salmon to Meridian and to modify Matthew’s visitation schedule based on the relocation. On
August 13, 2014, the magistrate court held a hearing on Krissy’s and Matthew’s motions to
modify child custody wherein both parties presented evidence.
          On August 28, 2014, the magistrate court issued its findings of fact and conclusions of
law. Ultimately, the magistrate court concluded that it was in the best interests of the children to
allow the relocation. The magistrate court granted Krissy’s motion to relocate and denied
Matthew’s motion. The magistrate court ordered that Matthew was entitled to visitation at least
once a month for a minimum of three days. The magistrate court explained that the visits would
occur on extended holidays or school breaks, and the magistrate court outlined the specific dates
in its decision. If there was no holiday or break that month, the magistrate court ordered that the
visit would begin on Thursday evening and end at noon on Sunday. The magistrate court
recognized: “[T]he scheme would mean that the children would miss a day of school. But the
alternative is a series of weekend visits where 10 hours of each visit would be eaten up by
transportation.” The magistrate court also ordered that Matthew would have the children in the


1
 Before this visitation schedule, the parties had other issues with the divorce decree and had returned to court
multiple times.


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summer, starting two weeks after school ended until two weeks before school started. On August
28, 2014, the magistrate court issued an order granting Krissy’s motion.
       Matthew filed a motion for a permissive appeal pursuant to Idaho Appellate Rule (I.A.R.)
12.1. On September 26, 2014, the magistrate court denied Matthew’s motion. On November 7,
2014, the Court granted Matthew’s request for a permissive appeal and expedited the appeal.
                                      III. ISSUES ON APPEAL
1.     Whether the magistrate court abused its discretion by denying Matthew’s motion for
       primary physical custody and allowing Krissy to relocate with the children.
2.     Whether either party is entitled to attorney’s fees on appeal.
                                     IV. STANDARD OF REVIEW
               This is a permissive appeal under [I.A.R.] 12.1, and as such, the Court
       reviews the magistrate judge’s decision without the benefit of a district court
       appellate decision. Roberts v. Roberts, 138 Idaho 401, 403, 64 P.3d 327, 329
       (2003). A trial court’s child custody decision will not be overturned absent an
       abuse of discretion. Id. A trial court does not abuse its discretion as long as the
       court “recognizes the issue as one of discretion, acts within the outer limits of its
       discretion and consistently with the legal standards applicable to the available
       choices, and reaches its decision through an exercise of reason.” Id. When the trial
       court’s decisions affect children, the best interests of the child is the primary
       consideration. Id. at 403–04, 64 P.3d at 329–30.
Suter v. Biggers, 157 Idaho 542, 545–46, 337 P.3d 1271, 1274–75 (2014).
              “An abuse of discretion occurs when the evidence is insufficient to
       support a magistrate’s conclusion that the interests and welfare of the children
       would be best served by a particular custody award or modification.” Nelson v.
       Nelson, 144 Idaho 710, 713, 170 P.3d 375, 378 (2007). When reviewing the
       magistrate court’s findings of fact, this Court “will not set aside the findings on
       appeal unless they are clearly erroneous such that they are not based upon
       substantial and competent evidence.” Id. Even if the evidence is conflicting,
       findings of fact based on substantial evidence will not be overturned on appeal.
       Id.
Peterson v. Peterson, 153 Idaho 318, 320–21, 281 P.3d 1096, 1098–99 (2012) (citation omitted).
                                          V. ANALYSIS
A.     The magistrate court had substantial and competent evidence to support its findings
       of fact.
       Matthew challenges four factual findings by the magistrate court as lacking substantial
and competent evidence. We hold that the magistrate court had substantial and competent
evidence for its findings of fact.
       1.      The children’s preference to live with Krissy


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       First, Matthew challenges the magistrate court’s findings on the wishes of the children.
The magistrate court found: “the interview with [Ann Just of Family Court Services] shows the
children to be struggling with the issue of where to live. They are however united in desiring to
live primarily with their mother with frequent visitation with Mr. Lamont.” Based on our review
of Just’s report, the magistrate court’s findings are supported by substantial and competent
evidence. More importantly, the magistrate court’s written and oral statements show that the
magistrate court did not perceive its finding on the children’s wishes as an unequivocal factor in
favor of relocation. The magistrate court found that the children were “struggling with the issue
of where to live.” Further, the magistrate court stated at the hearing that it did not see the
children’s desire to live with Krissy “as a ‘yes’ or no,’” but rather “sort of somewhere in the
gray, on a continuum.” The magistrate court also stated that it would be “weighing that out”
along with the other relevant factors. We conclude that the magistrate court’s findings on the
wishes of the children were not clearly erroneous.
       2.      Krissy is a superior parent
       Second, Matthew challenges the magistrate court’s finding: “The mother is a superior
parent and has been the primary caregiver, although that gap has diminished during the years.”
We believe that Matthew misreads the magistrate court’s finding. The magistrate court did not
find that Krissy was “the” superior parent, as represented by Matthew. Both Krissy and Matthew
submitted evidence of their parenting skills, on which the magistrate court made factual findings
supported by substantial and competent evidence. The magistrate court clearly stated on the basis
of evidence presented by Krissy and her witnesses and Matthew and his witnesses that both
parents were fit and exhibited excellent parenting skills. The magistrate court found that Krissy
was a superior parent and the primary caregiver, but also that Matthew “has a good relationship
with the children” and that the parties “have been virtually sharing the care of the children.”
Specifically, the magistrate court found that Matthew “supports the children in their activities.”
The magistrate court based its findings regarding both parents and their close, supporting
parental relationship to the children on substantial and competent evidence. Thus, the magistrate
court’s characterization of Krissy as “a superior parent” does not imply that the magistrate court
found that Krissy was the superior parent. This finding does not indicate that Krissy was the
better parent, that Matthew was the inferior parent, or that the magistrate court was comparing




                                                4
their parenting abilities. The argument submitted by Matthew to challenge this finding is
misleading. There was no error.
         3.     The Salmon School District’s poor financial condition
         Third, Matthew challenges the magistrate court’s finding: “In relying upon the current
state of the schooling in Salmon, along with the other factors noted above, the Court can
conclude that it is in the best interests of the children to allow the relocation.” Matthew argues
that the magistrate court erred by relying on “the current state of the schooling” because the
evidence did not support a finding that the Salmon School District was “underfunded and in
flux.”
         The magistrate court had substantial and competent evidence for its findings on the
Salmon School District. Jim Smith, the part-time school superintendent, agreed that one of the
reasons he was hired was “related to a negative budget issue.” He testified that “financially the
district was in trouble.” Smith also testified that there was no doubt that he would have to make
budget reductions, which were “almost always people.” James Robert Infanger previously served
on the school board for six years, and he testified about the state of the school district as well. He
testified that “our district’s underfunded.” He explained that they closed down one school when
he was on the board and they recently closed down the junior high school. With the close of the
junior high school, Infanger also explained that the school district had only one gym for six
teams. He also testified:
         What I really feel bad about is, the kids in Salmon don’t have a lot of
         opportunities. . . . [M]y wife and I considered moving from Salmon . . . just
         because the kids in the community don’t really have the same opportunities as the
         kids outside of Salmon. There’s so many more programs, so many more sports
         programs.
He further elaborated that other school districts “just have so many more opportunities that our
poor little district just doesn’t have. We just don’t have the money to provide the same
educational opportunities.” In addition, Krissy’s former coworker in the school district testified
that the electives offered by the school were limited and the students had to pay for additional
electives online. Finally, Krissy discussed the opportunities for the children in the Meridian
School District. She also briefly discussed the consolidation of the Salmon schools, the Salmon
schools’ low ratings, and the lack of staff.
         Based on this testimony, the magistrate court made multiple findings regarding the
Salmon School District. The magistrate court found:


                                                  5
        [T]he Salmon School District does have financial issues. The Court cannot
        disregard the testimony of the superintendent of the Salmon Schools who painted
        a different picture of the school system. He acknowledged it to be underfunded
        and in flux. A former Salmon School District Board Member, Mr. Infanger,
        considered moving from the area because of the quality of the schools. . . . Never
        the less [sic], the educational needs of the children have been met. The children
        do not have any ongoing special needs and as a result the school although
        challenged appears to be functioning.
The magistrate court also found that the quality of schooling in Salmon was adequate, but there
were more opportunities for electives, sports, and extracurricular activities in the Meridian
school system. The magistrate court recognized that it “has concerns about the future” of the
Salmon schools due to “ongoing financial issues.” The magistrate court stated: “The Salmon
School District, while meeting the needs of the children, does not have the options which the
Meridian School District provides. Given the testimony of the superintendent, as well as Mr.
Infanger the former Board member, it does not appear to be getting any better.” The magistrate
court then considered “the current state of the schooling in Salmon,” among other factors, to
determine the children’s best interests. Based on the testimony discussed above, the magistrate
court had substantial and competent evidence to support its findings on the Salmon School
District.
        Further, Matthew submits that the magistrate court’s decision was “confusing and
appears contradictory” because the magistrate court also found that the comparison of Salmon
and Meridian was neutral. We disagree. A review of the magistrate court’s findings shows that
the magistrate court separated its analysis of (1) the children’s educational opportunities in the
two school districts and (2) the children’s general well-being in the two locations. Matthew’s
argument regarding these factual findings is unconvincing.
        4.     Krissy’s lack of employment opportunities in Salmon
        Fourth, Matthew challenges the magistrate court’s multiple findings regarding Krissy’s
possible employment opportunities in Salmon. The magistrate court found that Krissy’s income
from her new job with Meridian School District was “above that which she would have been able
to secure in the Salmon area” and “provides enhanced income opportunities . . . that cannot be
matched in the Salmon area.” The magistrate court also found, “The move to Meridian not only
gives Ms. Lamont financial opportunity and the ability to more successfully care for her children,
but should she remain in Salmon finances would pose a substantial hardship. Financially, there is
both a pull towards Meridian and a push from Salmon.” In its conclusion, the magistrate court


                                                6
found, “For the mother the financial move makes sense not only because of the positive aspects
of her job, but the negative job factors in Salmon.”
       The magistrate court’s findings were not clearly erroneous. Krissy testified that she
applied for her current job with the Meridian School District because she knew “there were
going to have to be cuts” in the Salmon School District. She earned $18.27 per hour with the
Meridian School District plus benefits such as health insurance, life insurance, and retirement.
Krissy stated that to her knowledge there were no jobs available in Salmon with a wage of
eighteen dollars an hour plus benefits.
       She further testified that she can “help” her children “more financially now” with her new
job. Prior to her employment with the Meridian School District, Krissy worked full-time as an
administrative assistant, support clerk, and federal programs director/coordinator for the Salmon
School District with a wage between eleven and twelve dollars an hour plus health insurance.
Superintendent Smith testified that he viewed Krissy’s position in the Salmon School District as
possibly “an excessive position” and identified it for possible reduction. He also testified that if
Krissy remained employed with the Salmon School District, there would have been a significant
salary reduction and “possibly worse.” He posited that her hourly wage would have been reduced
to nine dollars an hour and her time cut in half to twenty hours a week. Smith also explained that
there was no possibility that Krissy could have stayed on with the Salmon School District with
the same income as before the budget cuts.
       Further, he testified that no one had been hired to replace Krissy yet and other employees
had taken on Krissy’s job responsibilities for the time being. Krissy also explained: “[O]bviously
there were going to be financial cutbacks in our family. I don’t feel I could have raised them
making $9 an hour at 20 hours a week, and pay my rent and take care of them.” She recognized,
however, that she did not apply for any other jobs in the Salmon area. She checked with the local
hospital after her offer to work in Meridian, but there were no job openings. Based on evidence
in the record, the magistrate court had substantial and competent evidence for its findings on
Krissy’s lack of employment opportunities and likelihood of financial hardship in Salmon.
B.     The magistrate court did not abuse its discretion by allowing Krissy to relocate with
       the children to Meridian.
       Matthew argues that the magistrate court’s decision to allow relocation ignored the
preference for joint custody. He submits that Krissy failed to present sufficient evidence to rebut
the presumption of joint custody and to show that relocation was in the children’s best interests.


                                                 7
Specifically, Matthew explains that he now has only forty overnights with the children during the
school year, compared to 121 overnights prior to the new visitation schedule. He contends that
Krissy failed to present sufficient evidence to “demonstrate that this drastic shift in custody was
in the children’s best interest.” He further contends that allowing the children to remain in
Salmon is preferable because Krissy would have no less than six overnights with the children
each month due to the Salmon schools’ four-day school week.
       “A party seeking to modify a previously existing custody order must first demonstrate
that a material, substantial change in circumstances occurred since the earlier custody order. A
court then will determine custody and where the children will reside using the best interests of
the child standard” provided in Idaho Code section 32-717. Suter v. Biggers, 157 Idaho 542, 546,
337 P.3d 1271, 1275 (2014) (citation omitted). In this case, Matthew does not challenge the
magistrate court’s finding that a material, substantial change in circumstances occurred due to
Krissy’s relocation.
       “Idaho Code § 32-717 provides a directive for the trial court to determine the best interest
of the children when making a custody decision. The statute sets forth non-exclusive factors to
aid in making its determination.” Hoskinson v. Hoskinson, 139 Idaho 448, 454, 80 P.3d 1049,
1055 (2003) (citation omitted). Idaho Code section 32-717 states in this respect:
               (1) In an action for divorce the court may, before and after judgment, give
       such direction for the custody, care and education of the children of the marriage
       as may seem necessary or proper in the best interests of the children. The court
       shall consider all relevant factors which may include:
               (a) The wishes of the child’s parent or parents as to his or her custody;
               (b) The wishes of the child as to his or her custodian;
               (c) The interaction and interrelationship of the child with his or her parent
               or parents, and his or her siblings;
               (d) The child’s adjustment to his or her home, school, and community;
               (e) The character and circumstances of all individuals involved;
               (f) The need to promote continuity and stability in the life of the child; and
               (g) Domestic violence as defined in section 39-6303, Idaho Code, whether
               or not in the presence of the child.
I.C. § 32-717(1). “This list of factors is not exhaustive or mandatory and courts are free to
consider other factors that may be relevant.” Peterson v. Peterson, 153 Idaho 318, 322, 281 P.3d
1096, 1100 (2012) (quoting Bartosz v. Jones, 146 Idaho 449, 454, 197 P.3d 310, 315 (2008)).
       For relocation cases specifically, the Court has recognized:




                                                 8
       [I]t would not be particularly helpful for this Court to enunciate a laundry list of
       factors that could or should be considered in this type of case. Factors relevant in
       some relocation cases may be irrelevant in others and, under the current
       framework, trial courts are free to consider factors unique to each case.
Bartosz, 146 Idaho at 456, 197 P.3d at 317. “Courts may consider factors not enumerated in
section 32-717” to determine whether relocation is in the best interests of the children. Id. at 455,
197 P.3d at 316.
       “Under Idaho law, unless one parent is a habitual perpetrator of domestic violence, it is
presumed that an award of joint custody serves a child’s best interest.” Id. at 456, 197 P.3d at
317 (citing I.C. § 32-717B(1), (4)–(5)). “The presumption may be overcome by a preponderance
of the evidence.” Id. at 456 n.5, 197 P.3d at 317 n.5 (citing I.C. § 32-717B(4)). “The presumption
in favor of joint custody is not equivalent to a presumption against a custodial parent relocating
with a child.” Id. at 456, 197 P.3d at 317. “Idaho law does not impose a presumption against
relocation.” Peterson, 153 Idaho at 324, 281 P.3d at 1102. “[T]he best interest of the child
standard governs relocation decisions.” Bartosz, 146 Idaho at 456, 197 P.3d at 317. “A parent’s
move is only one factor to be considered when awarding custody.” Id. at 457, 197 P.3d at 318.
       Generally, “[t]he party seeking modification has the burden of justifying a change in
custody.” Suter, 157 Idaho at 546, 337 P.3d at 1275 (quoting Woods v. Sanders, 150 Idaho 53,
57, 244 P.3d 197, 201 (2010)). That burden shifts to the relocating party, however, when
relocating the child would violate the previous custody arrangement. Id. at 547, 337 P.3d at
1276. “Once the parent seeking permission to relocate proves that relocation is in the child’s best
interest, he or she will be allowed to move with the child.” Bartosz, 146 Idaho at 456–57, 197
P.3d at 317–18.
       In this case, the magistrate court first discussed in great detail the evidence presented at
the hearing. The magistrate court outlined Krissy’s employment, parenting skills, and
relationship with the children. The magistrate court reviewed the advantages and disadvantages
to living in Meridian. The magistrate court discussed Matthew’s family environment with
Jennifer, Matthew’s and Jennifer’s employment, Matthew’s parenting skills, and his relationship
with the children. The magistrate court then reviewed the advantages and disadvantages to living
in Salmon. Finally, the magistrate court made findings on the wishes of the children and
miscellaneous matters. We recognize that the magistrate court’s factual findings were extensive
and thorough.



                                                 9
       After these comprehensive findings, the magistrate court considered the statutory factors
in Idaho Code section 32-717(1) and the relevant non-statutory factors. The magistrate court
stated that the following statutory factors were in favor of the relocation:
       (1) The wishes of the mother;
       (2) The wishes of the children to remain with Krissy;
       (3) The interaction or relationship of the children with their mother as the primary
       caregiver and her “lauded” parenting skills;
       (4) “The character and circumstances of all individuals involved is essentially
       neutral. Both are stable and can provide an adequate home for the children to
       meet their physical needs. Both parents have been involved in extracurricular
       activities and the children have bonded with their parents”;
       (5) Although the children’s needs were taken care of in the Salmon schools, there
       were more opportunities for electives, sports, and extracurricular activities in the
       Meridian School system. The ongoing financial issues could negatively impact
       the Salmon School District;
       (6) No issue of domestic violence; and
       (7) Krissy had more financial opportunity in Meridian to better care for her
       children and remaining in Salmon “would pose a substantial hardship.”
Conversely, the magistrate court stated that the following statutory factors were in favor of
Krissy remaining in Salmon or transferring custody to Matthew:
       (1) Considering that the children lived in Salmon all their lives and have
       flourished in the area, “the need to promote continuity to the children argues for
       primary physical custody to be with Mr. Lamont/Salmon area”;
       (2) The children have family and friends in Salmon and were integrated into the
       community. There was only a paternal aunt and family friend in Meridian;
       (3) The wishes of the father to raise children in Salmon; and
       (4) “Both parents have demonstrated stability, but Mr. Lamont is now married to
       a woman who has a good relationship with the children of the parties. Ms. Lamont
       has had at least one romantic relationship, but that does not impact her stability.”
       The magistrate court then turned to non-statutory factors. The magistrate court first
considered the reason for relocation, recognizing that a financial reason was a relevant factor, but
that reason alone may not justify moving the children. The magistrate court acknowledged that
the children were in their early teen years, where “peers hold great importance,” and had
established friends in Salmon. The magistrate court also recognized that the children were old
enough to “be able to adapt to the changes in social milieu as well as any cultural changes from
rural to a more urban lifestyle.”
       The magistrate court took note that Krissy “unilaterally” decided that the children would
go with her to Meridian without considering other matters. Along the same lines, the magistrate
court noted that Krissy wanted the children to maintain contact with Matthew, but she indicated


                                                 10
that she was “the ultimate decision maker.” The magistrate court determined that Krissy’s belief
that she could act unilaterally to determine where the children would live “is to be held against
her.” The magistrate court then recognized that child support would be dependent on the parties’
respective locations and that it could not “bind one parent to a particular locale.” Finally, the
magistrate court considered the different lifestyles available in Salmon and Meridian. The
magistrate court found that both urban and rural life had advantages and disadvantages and were
“in essence neutral.” Due to the pros and cons of both urban and rural life, the magistrate court
reasoned: “Many factors are essentially neutral as there is no inherent advantage in an urban
lifestyle over that of a more rural nature.”
        The magistrate court’s thorough discussion of its factual findings and the relevant factors
indicates that the magistrate court was cognizant of the difficulty of its decision in this particular
case. In fact, the magistrate court explicitly stated, “[T]hese are not easy decisions. . . . This is a
very close decision and neither party is a clear victor.” The magistrate court also stated that it had
“changed and altered its decision several times before settling on a course of action.” The
detailed discussion provided by the magistrate court indicates that the magistrate court carefully
and thoughtfully weighed the relevant factors within the applicable legal framework. We believe
that the magistrate court made an exceptional effort in this case to reach a decision in the best
interests of the children.
        We conclude that the magistrate court applied the correct legal standards to its analysis.
The magistrate court recognized that Krissy, the relocating parent, had the burden to prove the
relocation was in the best interests of the children. The magistrate court also recognized the
presumption in favor of joint custody. There was no error in the magistrate court’s identification
and application of the appropriate legal standards.
        We also conclude that the magistrate court’s decision, although a very close call, was a
proper exercise of its discretion in a child custody matter. As reviewed above, the magistrate
court made extensive factual findings supported by substantial and competent evidence. The
magistrate court then provided a comprehensive discussion of the relevant factors and the legal
standards. Based on our review of the magistrate court’s decision, the magistrate court
recognized the child custody issue as one of discretion, acted with the outer limits of that
discretion and consistent with the legal standards—including the best interests of the children as
of paramount importance—and reached its decision through an exercise of reason. We conclude



                                                  11
that the magistrate court did not abuse its discretion by finding that relocation was in the best
interests of the children.
        Further, we hold that the magistrate court’s new child custody order was a proper
exercise of discretion. “[E]qual visitation or residency time is not required for joint custody.”
State v. Anderson, 154 Idaho 54, 56, 294 P.3d 180, 182 (2013) (citing Peterson, 153 Idaho at
321, 281 P.3d at 1099).
                Joint physical custody shall be shared by the parents in such a way to
        assure the child a frequent and continuing contact with both parents but does not
        necessarily mean the child’s time with each parent should be exactly the same in
        length nor does it necessarily mean the child should be alternating back and forth
        over certain periods of time between each parent.
                The actual amount of time with each parent shall be determined by the
        court.
I.C. § 32-717(B)(2). The Court has recognized:
        [I]t is not unusual for the courts of Idaho to grant one parent the right to have
        child custody for one or two months during the year while the other parent is
        given custody for the remaining months of the year . . . where the welfare and best
        interest of the child require this.
Bartosz, 146 Idaho at 456, 197 P.3d at 317 (omission in original) (quoting Koester v. Koester, 99
Idaho 654, 657, 586 P.2d 1370, 1373 (1978)). “It is the province of the trial court to determine
the amount of time the child spends with each parent.” Bartosz, 146 Idaho at 456, 197 P.3d at
317 (citing I.C. § 32-717B(2)).
        In this case, the new visitation schedule decreases Matthew’s visitation time during the
school year, but there is an increase in visitation during the summer. This increase of visitation in
the summer indicates the magistrate court’s intent to afford Matthew frequent and continuing
contact while also considering the children’s welfare and best interests, which is of paramount
importance. An increase in summer visitation, rather than visits every weekend during the school
year, minimizes any negative impact on the children’s lives due to ten hours of car travel every
weekend. By finding that relocation was in the children’s best interests, the magistrate court
properly exercised its discretion to determine of the amount of custodial time Krissy and
Matthew would have with the children.
        Finally, we reject Matthew’s argument that the magistrate court failed to give appropriate
weight to Krissy’s “alienating behavior.” It is the province of the trial court to give weight to the
evidence, and “this Court does not substitute its view of the facts for that of the trial court.” King



                                                 12
v. King, 137 Idaho 438, 442, 50 P.3d 453, 457 (2002). The magistrate court discussed Krissy’s
unilateral actions multiple times in its decision and stated that it would hold her conduct against
her. There was no error in the magistrate court’s consideration of Krissy’s unilateral action.
C.     We award Krissy attorney’s fees on appeal.
       Both parties request attorney’s fees on appeal. Matthew is not entitled to attorney’s fees
on appeal because his argument is insufficient and, further, he is not the prevailing party. See I.C.
§§ 12-120, -121; Clair v. Clair, 153 Idaho 278, 291, 281 P.3d 115, 128 (2012).
       Krissy requests attorney’s fees pursuant to I.A.R. 41 and Idaho Code sections 12-120 and
12-121. “An award of attorney fees on appeal pursuant to I.C. § 12-121 is permitted for a
prevailing party when the Court determines that an appeal was brought, pursued, or defended in
a manner that was frivolous, unreasonable, or without foundation.” Clair, 153 Idaho at 291, 281
P.3d at 128. Krissy submits that Matthew brought this appeal frivolously, unreasonably, or
without foundation. We agree. As we discussed above, child custody disputes are left to the
sound discretion of the trial court, and the magistrate court here did an exceptional job of
carefully and thoughtfully deciding this case within the applicable legal standards. We are not
convinced that there are any genuine issues of law or legitimate issues of fact presented by this
appeal. See Telford Lands LLC v. Cain, 154 Idaho 981, 993, 303 P.3d 1237, 1249 (2013).
Therefore, we award Krissy attorney’s fees on appeal.
                                         VI. CONCLUSION
       We affirm the order of the magistrate court. Attorney’s fees and costs on appeal to
respondent.
       Chief Justice BURDICK, Justices EISMANN, J. JONES and HORTON, CONCUR.




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