               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42832

DAVID R. DAVIES,                                ) 2016 Opinion No. 19
                                                )
       Plaintiff-Appellant,                     ) Filed: March 2, 2016
                                                )
v.                                              ) Stephen W. Kenyon, Clerk
                                                )
SUSAN DAVIES,                                   )
                                                )
       Defendant-Respondent.                    )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Gerald F. Schroeder, District Judge. Hon. Michael J. Reardon,
       Magistrate.

       Order on intermediate appeal from the magistrate affirming orders awarding
       attorney fees and order modifying child custody and support, affirmed.

       Smith Horras, P.A.; Ellen N. Smith, Boise, for appellant.

       Stoel Rives, LLP; W. Christopher Pooser, Boise, for respondent.
                  ________________________________________________

MELANSON, Chief Judge
       David R. Davies appeals from the district court’s order on intermediate appeal affirming
the magistrate’s orders awarding attorney fees to Susan Davies and order modifying child
custody and support. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       David and Susan divorced in 2011, having two minor children. In November 2012,
Susan filed a petition to modify child custody and support. Susan filed a motion for attorney fees
pursuant to I.C. § 32-704 and, on June 17, 2013, the magistrate ordered David to pay $7,500 of
Susan’s attorney fees.    Thereafter, Susan made another request for attorney fees, and on
January 16, 2014, the magistrate ordered David to pay an additional $22,000, plus various costs.



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Ultimately, the magistrate modified child custody and support. David appealed to the district
court, alleging that the magistrate erred in awarding Susan attorney fees in both instances. In
addition, David argued that the magistrate erred in calculating Susan’s income for child support
purposes and in ordering David to pay a portion of the health insurance premiums. The district
court affirmed. David again appeals.
                                                II.
                                   STANDARD OF REVIEW
       For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate division, this Court’s standard of review is the same as expressed by the Idaho
Supreme Court. The Supreme Court reviews 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. Pelayo v. Pelayo, 154 Idaho 855,
858-59, 303 P.2d 214, 217-18 (2013). 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. Id. Thus, the appellate courts do not review
the decision of the magistrate. Bailey v. Bailey, 153 Idaho 526, 529, 284 P.3d 970, 973 (2012).
Rather, we are procedurally bound to affirm or reverse the decision of the district court. Id.
       When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the
issue as one of discretion; (2) whether the lower court acted within the boundaries of such
discretion and consistently with any legal standards applicable to the specific choices before it;
and (3) whether the court reached its decision by an exercise of reason. Sun Valley Shopping
Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991).
                                                III.
                                           ANALYSIS
A.     Attorney Fees
       David alleges that the district court erred in holding that the magistrate did not abuse its
discretion in awarding Susan attorney fees. The magistrate made the attorney fees award under
the authority of I.C. §§ 32-704 and 32-705. Section 32-704(3) provides:




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               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, including sums
       for legal services rendered and costs incurred prior to the commencement of the
       proceeding or after entry of judgment. The court may order that the amount be
       paid directly to the attorney, who may enforce the order in his name.
Section 32-705 establishes:
       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.
The Idaho Supreme Court has ruled:
       Pursuant to I.C. § 32-704, the district court has original jurisdiction in
       determining whether to require one spouse, during the pendency of an appeal
       from a judgment in a divorce action, to pay to the other spouse such sums as may
       be necessary for that spouse to prosecute or defend the action. Whether an award
       should be made, and if so, the amount of the award necessary to pay costs and
       attorney’s fees on appeal, are issues addressed to the sound discretion of the trial
       court. Although attorney’s fees and costs may be allowed on original application
       in this Court,
               [i]t is the policy of this court to leave to the district court, under
               authority of section 32-704 I.C., the making and enforcing of all
               orders necessary to provide the wife with the means of prosecuting
               or defending on appeal, and temporary alimony, and to exercise its



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                 original jurisdiction only upon a showing that such action is
                 necessary to the exercise of its appellate jurisdiction.
Wilson v. Wilson, 131 Idaho 533, 537, 960 P.2d 1262, 1266 (1998) (citations omitted) (quoting
Brashear v. Brashear, 71 Idaho 158, 165, 229 P.2d 243, 247 (1951)). In order for a trial court to
award attorney fees established by I.C. § 32-704(3), it is necessary that the court consider the
factors set forth in I.C. § 32-705. Jensen v. Jensen, 128 Idaho 600, 607, 917 P.2d 757, 764
(1996). Additionally, in Jensen the Idaho Supreme Court found that a disparity in income is
sufficient to support a magistrate’s conclusion that the party with the higher income should pay a
share of the other party’s attorney fees under I.C. § 32-704. Jensen, 128 Idaho at 607, 917 P.2d
at 764.
          1.     June 17, 2013, award
          David alleges that the magistrate abused its discretion in its award of attorney fees to
Susan on June 17, 2013, because it did not act consistently with the legal standards applicable to
awards of attorney fees pursuant to I.C. §§ 32-704 and 32-705. Specifically, David alleges that
there was no demonstration by the magistrate that the factors set forth in I.C. § 32-705 were
considered.
          After hearing argument from both sides, the magistrate explained:
                  It appears to me, post-divorce proceedings, under 32-704, 32-705, I am to
          consider the relative assets of the parties, their ability to essentially finance
          the litigation and to meet ordinary expenses. And I also think it comes with
          some discretion in making a decision whether or not to award fees based upon
          the findings.
                  It’s pretty clear that [David] has far more resources than [Susan] in this
          case. If the objective is to get [Susan] to waste all of her resources in responding
          to this litigation, that’s not an objective reason that can be supported either by
          the policy or the statute.
                  I don’t understand what the depositions of Scout leaders is in the context
          of this case. There doesn’t--there’s not any objective reason offered to me why
          that’s a legitimate litigation step.
                  It appears to me that even though [Susan] did file the initial complaint
          and has filed a number of her own motions, those motions tended to be, in my
          view at least, reasonably calculated to get at the issues that come up in these
          types of cases.
                  [David’s] motions, and what I’ve heard about the discovery tactics,
          seems to me more trying to increase the burden on [Susan] in defending
          the lawsuit or prosecuting the lawsuit. That’s my impression, based upon all
          of the affidavits that I have read up to this point.


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              I think it’s fair to award [Susan] attorneys[] fees. I’m not going to give
       her $10,000. I will make an award of $7,500 to be paid within 30 days.
       David alleges that the magistrate did not follow applicable legal standards when it failed
to discuss several of the elements listed in I.C. § 32-705--Susan’s employment, the duration of
the marriage, the age and the physical and emotional condition of Susan, David’s ability to meet
his needs while meeting those of Susan, and the tax consequences to each spouse. However,
David misunderstands the magistrate’s obligation regarding the I.C. § 32-705 elements. The
magistrate must have considered and cited the factors listed in I.C. § 32-705 in its decision. See
Jensen, 128 Idaho at 606, 917 P.2d at 763. The magistrate is not, however, required to discuss
each individual element of I.C. § 32-705 in its decision.            In this case, the magistrate
demonstrated that it understood that I.C. §§ 32-704 and 32-705 governed the award of attorney
fees to Susan when it cited both sections in its decision. In addition, the magistrate demonstrated
that it considered the elements of I.C. § 32-705 in making its determination when it explained, “I
am to consider the relative assets of the parties, their ability to essentially finance the
litigation and to meet ordinary expenses.” While further explanation may have been helpful for
the parties and this Court to understand the magistrate’s decision to award Susan attorney fees,
the magistrate met the minimum requirements for awarding attorney fees under I.C. §§ 32-704
and 32-705--it considered and cited the factors listed in I.C. § 32-705 in its decision.
       David further alleges that there was insufficient evidence in the record to support the
magistrate’s finding that there was a disparity between David’s and Susan’s incomes to justify an
award of attorney fees to Susan. Where a trial court sits as a finder of fact without a jury the
court is required to enter findings of fact and conclusions of law. I.R.C.P. 52(a); Estate of Hull v.
Williams, 126 Idaho 437, 440, 885 P.2d 1153, 1156 (Ct. App. 1994). Our review of the trial
court’s decision is limited to ascertaining whether substantial, competent evidence supports the
findings of fact, and whether the trial court correctly applied the law to the facts as found. Borah
v. McCandless, 147 Idaho 73, 77, 205 P.3d 1209, 1213 (2009); Cummings v. Cummings, 115
Idaho 186, 188, 765 P.2d 697, 699 (Ct. App. 1988). Thus, we defer to findings of fact that are
not clearly erroneous, but we freely review the trial court’s conclusions of law reached by
applying the facts found to the applicable law. Staggie v. Idaho Falls Consol. Hosps., 110 Idaho
349, 351, 715 P.2d 1019, 1021 (Ct. App. 1986). Despite David’s claim that there was nothing in



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the record to support the magistrate’s finding that there was a disparity of income, the record
contains a document entitled “Affidavit Verifying Income,” signed by David and notarized. That
document lists David’s annual income as $72,000 and Susan’s annual income as $36,750. A
disparity in income is sufficient to support a magistrate’s conclusion that the party with the
higher income should pay a share of the other party’s attorney fees under I.C. § 32-704. Reed v.
Reed, 157 Idaho 705, 720, 339 P.3d 1109, 1124 (2014); McGriff v. McGriff, 140 Idaho 642, 654,
99 P.3d 111, 123 (2004); Jensen, 128 Idaho at 606, 917 P.2d at 763. Accordingly, the magistrate
did not err in ordering David to pay a portion of Susan’s attorney fees.
       David makes a number of additional allegations regarding the magistrate’s award of
attorney fees to Susan, including that the magistrate erred in concluding that David’s motions
and discovery actions were improper. We need not address any of the additional issues because
assuming, without deciding, the magistrate erred in making an award of attorney fees on those
other bases, the magistrate was nonetheless justified in awarding Susan attorney fees under
I.C. § 32-704, as discussed above. Accordingly, any error that may have occurred was harmless.
       2.      January 16, 2014, award
       David similarly alleges that the magistrate abused its discretion in awarding Susan
attorney fees on January 16, 2014.       Susan sought attorney fees under the authority of I.C.
§§ 12-121, 12-123, and 32-704. During a hearing on the motion for attorney fees, the magistrate
explained:
       Under 12-121 I can’t award attorney fees . . . without finding that the action was
       unreasonable, frivolous or without foundation in either its commencement or its
       pursuit. There were many things that it seems to me were fairly debatable
       questions of law and fact. But there were many other actions that weren’t.
Based upon that explanation, the magistrate denied Susan’s request for attorney fees under
Sections 12-121 and 12-123. However, later in the hearing the magistrate held:
       I’ve addressed 12-121 and in a way 12-123. I also think that there’s support for
       an award under 32-704, 32-705. I think there is when considering the incomes of
       and expenses as a whole a much greater ability on [David’s] part to . . . afford the
       attorney[] fees that he was largely responsible for generating. And on that basis
       we’ll also award the amounts that I’ve indicated.
Accordingly, the magistrate ordered David to pay a portion of Susan’s costs and attorney fees.
As explained above, regarding the prior award of attorney fees, there is support for the award



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under the authority of I.C. § 32-704 and Jensen due to the discrepancy between David’s and
Susan’s incomes. Thus, the district court did not err in affirming either of the magistrate’s
awards of attorney fees to Susan.
B.       Child Support Calculation
         David alleges that the district court abused its discretion in calculating his child support
obligation. Specifically, David alleges that the magistrate erred in refusing to include rental
income in Susan’s income calculation and in requiring David to pay a portion of the health care
premiums, which covered both their minor and adult children.
         An existing order or decree of child support may be modified only upon a showing of a
substantial and material change of circumstances. I.C. § 32-709(1). Therefore, a motion to
modify child support must state a substantial and material change in the moving party’s
circumstances since the last order affecting support obligations. Kornfield v. Kornfield, 134
Idaho 383, 385, 3 P.3d 61, 63 (Ct. App. 2000). In an action to modify child support, the party
seeking the modification carries the burden of proof. Humberger v. Humberger, 134 Idaho 39,
43, 995 P.2d 809, 813 (2000); Pace v. Pace, 135 Idaho 749, 752, 24 P.3d 66, 69 (Ct. App. 2001).
Modification of child support on the ground of material change in circumstances is within the
sound discretion of the trial court and will not be altered on appeal unless there is a manifest
abuse of discretion. Margairaz v. Siegel, 137 Idaho 556, 558, 50 P.3d 1051, 1053 (Ct. App.
2002).
         1.     Rental income
         David alleges that the magistrate abused its discretion in failing to impute $600 per
month in rental income in Susan’s income when calculating child support obligations. With
regard to Susan’s rental income of $600 from renting space in her house, Susan testified:
         I’m not sure if I have rented it at all in that time, because Dave reported me to
         Planning and Zoning for renting it illegally, even though before our divorce we
         had rented it for almost four years. . . .
                So as soon as the current renters had to move out, I couldn’t rent it again.
         Susan further testified that she believed she was allowed to rent the space as a room in
her house, rather than an apartment, as long as there was no cooking range in the space. During
the hearing, the magistrate considered David’s assertion that rental income should be included as
income and provided the following explanation for not including it:


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              I thought about the rental income. . . . I found it really hard to listen to
       you that you called and reported her for illegally renting this room that you had at
       one time enjoyed the rental income from. It just seems spiteful and mean,
       frankly.
              And I’m not convinced at this point that that is a reliable source of income
       going forward in the future. . . . I have considered it, and I’m not going to
       [impute] that amount to her.
Modification of child support on the ground of material change in circumstances is within the
sound discretion of the trial court and will not be altered on appeal unless there is a manifest
abuse of discretion. See Margairaz, 137 Idaho at 558, 50 P.3d at 1053. David has not shown,
given the full context of the rental income, that the magistrate abused its discretion in declining
to impute the rental income to Susan.
       2.      Insurance premiums
       David alleges that the magistrate abused its discretion in ordering David to pay a share of
the health insurance premiums, which covered the two minor children and two adult children.
According to David:
              Susan testified that she has health insurance. Further, she testified that she
       has the parties’ two adult children currently on her health insurance policy. The
       minor children who were the subject of this litigation were on David’s health
       insurance policy at the time of trial. Susan further testified that she could easily
       add the parties’ minor children to her policy and stated that “its no more cost to
       have the (minor) boys on that health insurance.” In other words, Susan’s
       premium that she was already paying for the parties’ two adult children would not
       increase at all if she added the parties’ minor children. It would not cost either of
       the parties any additional money for the minor children to be covered under
       Susan’s health insurance policy.
(Citations omitted.)
       Essentially, David alleges that, because Susan was paying insurance premiums which
covered their adult children and the minor children could be added at no extra cost, ordering him
to pay a portion of Susan’s insurance premiums amounted to impermissibly ordering David to
pay a portion of the insurance premiums to cover the adult children. As noted by the district
court on appeal, David did not raise this issue before the magistrate. Generally, issues not raised
below may not be considered for the first time on appeal. Sanchez v. Arave, 120 Idaho 321, 322,
815 P.2d 1061, 1062 (1991).      Accordingly, the district court did not err in refusing to address
this issue and in affirming the magistrate’s child support order.


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                                               IV.
                                        CONCLUSION
       David has not shown that the district court erred in affirming the magistrate’s award of
attorney fees to Susan. Nor has David shown that the magistrate erred in its calculation of child
support. Therefore, we affirm the district court’s order on intermediate appeal affirming the
orders awarding attorney fees to Susan and order modifying child custody and child support.
Costs, but not attorney fees, are awarded to Susan on appeal.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.




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