               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 42226

STANLEY PHILLIP SWEET,                           )    2015 Unpublished Opinion No. 606
                                                 )
       Plaintiff-Respondent-Cross                )    Filed: September 2, 2015
       Claimant-Appellant,                       )
                                                 )    Stephen W. Kenyon, Clerk
v.                                               )
                                                 )    THIS IS AN UNPUBLISHED
REBECCA LEE VINEYARD                             )    OPINION AND SHALL NOT
FOREMAN,                                         )    BE CITED AS AUTHORITY
                                                 )
       Defendant-Appellant-Cross                 )
       Defendant-Respondent.                     )
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Boundary County. Hon. Jeff M. Brudie, District Judge. Hon. Justin W. Julian,
       Magistrate.

       Order of the district court, on intermediate appeal from the magistrate, affirming
       order modifying child custody and support, affirmed.

       Val Thornton, Sandpoint, for appellant.

       Ruth J. Fullwiler, Coeur d’Alene, for respondent.
                  ________________________________________________

MELANSON, Chief Judge
       Stanley Phillip Sweet appeals from the district court’s order on intermediate appeal,
affirming the magistrate’s order modifying child custody and support. Rebecca Lee Vineyard
Foreman cross-appeals. For the reasons set forth below, we affirm.
                                                 I.
                                FACTS AND PROCEDURE
       Sweet and Foreman are the parents of a minor child who was born in 2005. The parties
were never married, but resided together from 2006 to 2008. A child custody and support order
was entered in 2009. Over several years, Sweet and Foreman each filed a number of motions to



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modify the child custody and support orders, some of which were granted. On June 22, 2011,
Foreman filed a petition to modify child custody and support. A trial was held on June 7, 2012,
and August 8, 2012, and the magistrate modified the prior child custody and support orders.
Foreman filed a motion to reconsider and Sweet filed a motion for an award of attorney fees.
Both motions were denied. Foreman appealed to the district court and Sweet cross-appealed.
On appeal, the district court affirmed the magistrate. Sweet appeals and Foreman cross-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 decisions of the district court. Id.
       The standard of review on an appeal from a child support award is whether the court
abused its discretion. See Reid v. Reid, 121 Idaho 15, 16, 822 P.2d 534, 535 (1992). A support
award will not be disturbed on appeal absent a manifest abuse of discretion. Ross v. Ross, 103
Idaho 406, 409, 648 P.2d 1119, 1122 (1982). Decisions as to the custody, care, and education of
the child are committed to the sound discretion of the trial court and will be upheld on appeal
unless there is a clear showing of abuse of that discretion. See Schneider v. Schneider, 151 Idaho
415, 420, 258 P.3d 350, 355 (2011); Ratliff v. Ratliff, 129 Idaho 422, 424, 925 P.2d 1121, 1123
(1996). The party moving for modification of a child support order bears the burden of proving
that a material, substantial, and permanent change has occurred. Chislett v. Cox, 102 Idaho 295,
298, 629 P.2d 691, 694 (1981).
       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


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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). An abuse of
discretion occurs when the evidence is insufficient to support a magistrate’s conclusion that the
interests and welfare of the child would be best served by a particular custody award or
modification. Nelson v. Nelson, 144 Idaho 710, 713, 170 P.3d 375, 378 (2007).
                                                III.
                                           ANALYSIS
A.     Child Support
       Sweet argues that the magistrate erred in its determination of his and Foreman’s incomes.
The magistrate found that Sweet’s income was $30,000 and that Foreman’s income was $50,000
for the purpose of determining child support obligations. Idaho has adopted the Idaho Child
Support Guidelines, which “apply to determinations of child support obligations between parents
in all judicial proceedings that address the issue of child support for children under the age of
eighteen years or children pursuing high school education up to the age of nineteen years.”
I.R.C.P. 6(c)(6), Section 2. 1 The basic child support obligation shall be based upon the guideline
income of both parents, according to the rates set out in the schedules set forth in the guidelines.
I.R.C.P. 6(c)(6), Section 10(a). In determining both parents’ incomes, the guidelines provide a
basic definition of gross income:
               Gross income includes income from any source, and includes, but is not
       limited to, income from salaries, wages, commissions, bonuses, dividends,
       pensions, interest, trust income, annuities, social security benefits, workers’
       compensation benefits, unemployment insurance benefits, disability insurance
       benefits, alimony, maintenance, any veteran’s benefits received, education grants,
       scholarships, other financial aid and disability and retirement payments to or on
       behalf of a child. . . .

I.R.C.P. 6(c)(6), Section 6(a)(1)(i). For those who are self-employed, the guidelines provide:



1
        Effective July 2, 2015, the Idaho Supreme Court adopted the Idaho Family Law Rules,
which include the Idaho Child Support Guidelines at I.F.L.R. 126. References in this decision
are to the former I.R.C.P. 6.

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               For rents, royalties, or income derived from a trade or business (whether
       carried on as a sole proprietorship, partnership or closely held corporation), gross
       income is defined as gross receipts minus ordinary and necessary expenses
       required to carry on the trade or business or to earn rents and royalties. . . . In
       general, income and expenses from self-employment or operation of a business
       should be carefully reviewed to determine the level of gross income of the parent
       to satisfy a child support obligation. This amount may differ from a
       determination of business income for tax purposes.

I.R.C.P. 6(c)(6), Section 6(a)(2). The guidelines also provide:
       (1)     Potential earned income. If a parent is voluntarily unemployed or
       underemployed, child support shall be based on gross potential income. . . .
       Determination of potential income shall be made according to any or all of the
       following methods, as appropriate:
               (A)     Determine employment potential and probable earnings level
               based on the parent’s work history, occupational qualifications, and
               prevailing job opportunities and earnings levels in the community.
               (B)     Where a parent is a student, potential monthly income during the
               school term may be determined by considering student loans from any
               source.
       (2)     Potential unearned income. If a parent has assets that do not currently
       produce income, or that have been voluntarily transferred or placed in a condition
       or situation to reduce earnings, the court may attribute reasonable monetary value
       of income to the assets so that an adequate award of child support is made.

I.R.C.P. 6(c)(6), Section 6(c). When a parent is voluntarily unemployed or underemployed, the
guidelines do not give the trial court discretion not to impute potential income. Reed v. Reed,
157 Idaho 705, 716, 339 P.3d 1109, 1120 (2014).          On the other hand, if a parent is not
voluntarily unemployed or underemployed, the trial court is not given the option of basing child
support on potential gross income. The threshold requirement for using potential gross income
as a basis for child support is whether the parent is voluntarily unemployed or underemployed.
       1.      Sweet’s income
       Sweet argues that the magistrate abused its discretion when it determined that his annual
income for the purpose of calculating child support was $30,000. Sweet was not employed in the
common sense of the word. Sweet was seasonally and self-employed as a farmer, rancher,
logger, landlord, and salad dressing producer. Sweet’s tax returns showed substantial losses and
little income and, therefore, were of little evidentiary value to the magistrate. Evidence was
presented at trial through Sweet’s testimony that his income included an unknown amount from


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farming and ranching; $500 per month from his salad dressing business, minus expenses which
were not specified; $400 per month from a rented trailer used for residential purposes; and $1500
per month from his rented four-plex, minus $1200 in mortgage payments and between $300 and
$500 in expenses. In addition, Sweet kept one of the units of the four-plex unrented for his own
use.
       At trial, Sweet proposed that the magistrate impute $25,000 per year as his gross income.
Sweet explained that he arrived at that amount because it is what he could make “at a different
job,” rather than working on his farm. However, the magistrate held that, “taking into account
Sweet’s talents and experience in all his fields of employment, there is little doubt in the court’s
mind that he is capable of earning at least $2,500 per month gross income,” which is $30,000
annually. The issue here is whether the magistrate erred in determining that Sweet’s income for
child support was $30,000 instead of the proposed amount of $25,000. When reviewing the
magistrate’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.
Peterson v. Peterson, 153 Idaho 318, 320-21, 281 P.3d 1096, 1098-99 (2012).
       It does appear, as the magistrate found, that Sweet conceded that he was voluntarily
underemployed. This concession is evidenced by Sweet’s testimony that the magistrate should
use a figure that represented what he could earn if he “wasn’t on the farm,” an amount Sweet
proposed was $25,000. In addition, “[i]f a parent has assets that do not currently produce
income, or that have been voluntarily transferred or placed in a condition or situation to reduce
earnings, the court may attribute reasonable monetary value of income to the assets so that an
adequate award of child support is made.” I.R.C.P. 6(c)(6), Section 6(c)(2). In this case, Sweet
kept one unit of his four-plex unrented for his personal use. The magistrate had discretion to
attribute reasonable monetary value of income to the unrented unit. A reasonable value of $500
per month, or $6,000 annually--the same amount as the three rented units--can be properly
attributed to the unrented unit.
       Accordingly, the magistrate did not err in finding that Sweet was voluntarily
underemployed or that Sweet’s income was $30,000. Taking the $25,000 that Sweet proposed
he could earn if he “wasn’t on the farm” and considering all of Sweet’s other sources of potential
income, especially his unrented four-plex unit with an attributed annual income value of $6,000,


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the magistrate’s finding of fact that Sweet was capable of earning $30,000 annually was not
clearly erroneous. Accordingly, Sweet has failed to show that the magistrate erred in using the
$30,000 amount to determine child support obligations.
       2.      Foreman’s income
       Sweet argues that the magistrate erred in failing to find that Foreman was voluntarily
underemployed and, therefore, failing to impute income to Foreman. The magistrate found that
in 2009, 2010 and 2011 Foreman’s income was $61,143, $55,600 and $96,035, respectively.
The magistrate also found that those income amounts included income and bonuses from her
military service, most importantly that the $96,035 from 2011 included a $45,000 stipend to be
used for education expenses. The magistrate found that Foreman’s military service had ended
and that she would no longer be receiving any military income.
       Accordingly, the magistrate found that Foreman’s actual income at that time was $50,000
annually, received from her employment as a nurse, and used that amount in making the child
support determination. Sweet provided no evidence to show that the magistrate’s findings were
erroneous. Sweet argues that Foreman was working part-time, while taking university classes,
thus establishing that she was voluntarily underemployed.        However, Sweet provided no
evidence that the number of hours Foreman was working was unusual in Foreman’s field of
nursing. Nor did Sweet provide evidence that more than part-time work was available to
Foreman. In other words, Sweet provided no evidence that Foreman was underemployed or that
the alleged underemployment was voluntary. Accordingly, the magistrate did not err when it
failed to find that Foreman was voluntarily underemployed and in using her actual income of
$50,000 annually as the basis for the child support award.
B.     Custody
       Foreman argues that the magistrate abused its discretion in fashioning a new custody
order. Under the prior custody order, Sweet and Foreman had joint legal and physical custody of
the child. Sweet had custody of the child during the week and Foreman had custody of the child
every weekend except the first weekend of the month. Sweet was also awarded four “floating”
weekends annually in which he had the option of retaining custody of the child during the
weekend. The prior custody order also included an unworkable system of A and B weeks.
Whether a given week was an A or B week was dependent upon Foreman’s work schedule.


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During A weeks, Foreman had custody from Thursday morning until Sunday evening. While
during B weeks, Foreman had custody from Saturday morning until Sunday evening. The prior
custody order was complicated and created much conflict as a result of Foreman’s and Sweet’s
conflicting interpretations. There was disagreement between Sweet and Foreman regarding
whether a given week was an A or B week and upon which weekends Sweet was allowed to use
his floating weekends. Foreman sought a modification of the custody order granting her primary
residential custody during the school year, with Sweet having custody on the weekends. The
magistrate found that the prior custody order was unnecessarily complicated and modified the
custody order, eliminating the A and B week schedule and floating weekends. Sweet retained
physical custody of the child during the week and Foreman was given physical custody of the
child every other weekend from Thursday evening until Sunday evening. Foreman contends that
the magistrate abused its discretion when it reduced her overall custodial time and failed to
consider all the factors of I.C. § 32-717.
       The welfare and best interest of the child is of paramount importance when awarding
custody. Brownson v. Allen, 134 Idaho 60, 63, 995 P.2d 830, 833 (2000). In this case, the
magistrate explained that I.C. § 32-717 “sets forth the issues that the court--or the factors that
guide the court’s decision. I’m not going to read through each particular one.” Idaho Code
Section 32-717 provides:
       (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.

Foreman argues that the magistrate abused its discretion in failing to address each of the factors
outlined in the statute. However, I.C. § 32-717 directs the trial court to consider all relevant


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factors and provides a nonexhaustive list of factors that the court may consider when making its
determination as to best interests of children. Gustaves v. Gustaves, 138 Idaho 64, 69, 57 P.3d
775, 780 (2002).
       In this case, it appears that the magistrate properly considered all relevant factors in
making its custody determination. The magistrate recognized that the best interest of the child is
of paramount importance and most of the magistrate’s explanation revolved around that end.
The magistrate also explained that the promotion of continuity and stability was a very important
interest of the child.   The magistrate found that the child had been attending school; was
involved in extracurricular activities; and had a family support network in place, emphasizing the
child’s very close relationships with his grandmother and grandfather. All of these factors led
the magistrate to conclude that it was in the child’s best interest to remain with Sweet.
Accordingly, the magistrate considered the proper factors and, therefore, did not abuse its
discretion in making its custody determination.
       Foreman also argues that the magistrate erred by finding she had relocated or sought to
relocate. The magistrate did not find that Foreman had relocated or sought to relocate. Rather,
the magistrate’s discussion was based upon the effect that a change of custody, resulting in the
child’s relocation, would have upon the child. The magistrate considered whether the potential
move would be in the best interest of the child. Therefore, Foreman has failed to show the
magistrate erred.
C.     Transportation Costs
       Sweet argues that the magistrate erred in ordering him to pay half of Foreman’s expenses
associated with transporting the child pursuant to the custody order. The prior order required
Sweet and Freeman to each travel approximately half way for custody exchanges. The new
order required the parent who receives the child to drive the entire distance for the exchange. In
addition, the new order required Sweet to reimburse Foreman for half of her travel mileage.
Sweet argues that the magistrate abused its discretion in requiring Sweet to pay half of
Foreman’s driving expenses. Idaho Rule of Civil Procedure (6)(c)(6), Section 8(b), guides the
magistrate’s allocation of transportation costs, providing:
               The court may order an allocation of transportation costs and
       responsibilities between the parents after considering all relevant factors, which
       shall include:

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               (1) The financial resources of the child;
               (2) The financial resources, needs and obligation of both parents which
                   ordinarily shall not include a parent’s community property interest in
                   the financial resources or obligations of a spouse who is not a parent
                   of the child, unless compelling reasons exist;
               (3) The costs and difficulties to both parents in exercising custodial and
                   visitation time;
               (4) The reasons for the parent’s relocation; and
               (5) Other relevant factors.

There is nothing in this section that requires a magistrate to allocate transportation costs equally.
In this case, the magistrate found it necessary to amend the custody order with regard to the
location of exchanges as a result of Sweet’s consistent failures to meet at the required time and
place. The magistrate held that the amended order placed an additional burden on Foreman,
although the parties were traveling equal distances. Accordingly, he required Sweet to
compensate Foreman for the burden resulting from Sweet’s behavior. Sweet has not provided
any authority to support his argument that the magistrate was required to allocate transportation
costs equally because both parties traveled an equal distance. Nor has Sweet provided any
argument or authority to persuade this Court that the magistrate did not properly consider his
behavior and award transportation costs to Foreman pursuant to subsections (3) or (5) of
I.R.C.P. (6)(c)(6), Section 8. A party waives an issue on appeal if either argument or authority
is lacking.   Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997).
Accordingly, this Court will not address this issue on appeal.
D.     Costs and Attorney Fees
       Sweet argues that the magistrate erred in denying his request for costs and attorney fees.
In addition, Sweet and Foreman each request costs and attorney fees on appeal to this Court. In a
civil case, an award of costs may be granted to the prevailing party.               I.C. § 12-101;
I.R.C.P. 54(d)(1)(A). An award of attorney fees may be granted under I.C. §§ 12-121 and
I.A.R. 41 to the prevailing party. In this case, neither party is the prevailing party. Sweet
requested costs pursuant to I.R.C.P. 54(d)(1), as well as attorney fees pursuant to I.C. §§ 12-121
and 12-123. The record discloses no abuse of discretion in the denial of Sweet’s request for
costs or attorney fees. Therefore, neither party is awarded costs or attorney fees on appeal.




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                                              IV.
                                       CONCLUSION
       The magistrate did not abuse its discretion in determining Sweet’s and Foreman’s
incomes for making the child support determination or in modifying the custody order. In
addition, Sweet has not shown that the magistrate erred in requiring him to pay half of
Foreman’s travel costs associated with custody exchanges. Finally, the magistrate did not err in
denying Sweet’s request for costs and attorney fees. Therefore, we affirm the district court’s
order on intermediate appeal, affirming the magistrate’s order modifying child custody and
support. No costs or attorney fees are awarded on appeal.
       Judge GUTIERREZ and Judge Pro Tem WALTERS, CONCUR.




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