                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40267

PAUL WILLIAM DRIGGERS,                           )      2013 Unpublished Opinion No. 746
                                                 )
       Plaintiff-Appellant,                      )      Filed: November 8, 2013
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
KAREN N. VASSALLO,                               )      THIS IS AN UNPUBLISHED
                                                 )      OPINION AND SHALL NOT
       Defendant-Respondent.                     )      BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Carl B. Kerrick, District Judge; Hon. Benjamin R.
       Simpson, Magistrate.

       Decision of district court on intermediate appeal affirming magistrate court order
       disallowing discovery, vacated and remanded; district court decision remanding
       for further consideration of custody order governing communication with
       children, affirmed.

       Paul William Driggers, Arizona, pro se appellant.

       Karen N. Vassallo, Coeur d’Alene, respondent, did not participate on appeal.
                 ________________________________________________
LANSING, Judge
       Paul William Driggers appeals the decision of the district court that affirmed in part and
remanded in part orders of the magistrate court in a child custody matter. Driggers argues that
the magistrate court erred by impermissibly limiting his discovery and his communication with
his children.
                                                I.
                                        BACKGROUND
       By his own admission, Driggers is currently serving a sentence in federal prison as a
result of his conviction for the use of interstate facilities in the attempt to commit a murder for




                                                1
hire, felony, 18 U.S.C. § 1958. 1 The intended victim of Driggers’ crime was Karen Vassallo,
Driggers’ ex-wife and mother to his children. Since at least 2004, Driggers has sought custody
of his children through various means. 2 The current appeal stems from an oral stipulation
entered on the record on July 8, 2008. At that time, Driggers was in prison but was opposing
Vassallo’s petition to obtain sole legal and physical custody.     After the court addressed a
multitude of Driggers’ pretrial motions, the court held a status conference during which it asked
Driggers if he wanted to proceed to trial or would be willing to stipulate to some custody
arrangement until he was released from prison. He agreed to an oral stipulation that primarily
concerned custody but also addressed Driggers’ right to communicate with his children by letter.
Based on the stipulation, the court granted Vassallo full legal and physical custody of the
children. With regard to communication between Driggers and his children, the court stated that
it was not aware of any order that prohibited contact and had “no problem with [Driggers]
writing letters to the children,” but that it wanted a third party to act as an intermediary to
determine whether the letters were appropriate for the children to see. This intermediary was
used to prevent Driggers and Vassallo from disputing which letters should be delivered to the
children. The parties then agreed to use the Idaho Department of Health and Welfare as an
intermediary because there was a pending child protection action initiated by the Department.
The Department was to both screen the letters and deliver them to the mother because another
court had ordered that Driggers was not to be told Vassallo’s address. The magistrate court
issued an order accordingly.
       In November 2008, Driggers complained that he was being denied the right to
communicate with his children. At the hearing, Vassallo indicated that she did not wish to
communicate with Driggers and did not want any communication between Driggers and the



1
        Driggers continues to assert his innocence in the briefing and argued that various courts
have misinterpreted the exact contents of his charge. Because the exact charge is not relevant to
the disposition of the appeal, we adopt Driggers’ description of the offense.
2
       Driggers requested that certain documents from his prior appeals be included in the
record of this appeal. These documents do not appear to constitute the entire records of each
matter before the trial courts. However, from a review of those records, it appears Driggers
previously attempted to obtain custody of his children by (perhaps illegally) removing them from
one state and hiding them from their mother and, later, by obtaining a custody decree by
fraudulent means.

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children. Construing Driggers’ motions and requests as either a motion under Idaho Rule of
Civil Procedure 60 or a motion to reconsider, the magistrate court did not alter its order but
described the duties of each party under the terms of the order:          the intermediary would
determine if any letter from Driggers to his children was appropriate, and if it was appropriate,
Vassallo was to deliver the letter to the child. However, no party was ordered to certify to
Driggers that his letter was found to be inappropriate or delivered. 3
       By April 1, 2010, Driggers had obtained counsel and, through counsel, petitioned to
modify the child custody and visitation decree. Driggers argued the prior decree was no longer
workable because the child protection case had ended, the Idaho Department of Health and
Welfare was no longer involved with the family, and the Department was unwilling to serve as a
screener for his letters. He also argued that because his status in prison had changed so as to
permit him to make telephone calls and to send e-mail, he should be permitted to use those
means to communicate with his children.         Finally, he requested joint legal custody of the
children. It appears that Vassallo did not promptly respond to the petition and avoided default
only by attending the hearing on the matter.
       A hearing was conducted on February 8, 2011, at which Driggers’ attorney offered
several suggested means of permitting communication between Driggers and his children. 4 She
suggested several possible intermediaries to replace the Department such as a guardian ad litem
or one of the children’s counselors if such a person existed. The magistrate then held that
Vassallo had unfettered discretion to determine which letters were appropriate because she had
full legal custody and that, absent a finding she was an unfit parent, the court would be obligated



3
        From the limited record before the Court, it appears that Driggers attempted to appeal
either the original ruling in the magistrate court or the decision on his motion to reconsider, but
his appeals were dismissed. His appeal to the district court was filed on January 16, 2009, and
his appeal from the district court to the Idaho Supreme Court was filed on April 6, 2009. Both
appeals were dismissed. It appears that the district court dismissed Driggers’ appeal on
timeliness grounds, and the basis of the Supreme Court dismissal does not appear in the record.
Driggers apparently took an additional appeal in 2009 that was dismissed by both the district
court and by the Idaho Supreme Court because Driggers attempted to take an appeal from a
nonappealable decision.
4
        Based on statements at the hearing, it appears that after the Department declined to
continue to receive and screen Driggers’ letters, the court arranged for Driggers to send letters to
the children through the clerk of the court, but Driggers did not attempt to use that intermediary.

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to presume that her decision was correct. Driggers, through counsel, argued that such a ruling
was inconsistent with the original stipulated agreement and that Driggers had some right to
communication with his children regardless of the fact that Vassallo had sole legal custody. He
also argued that the only means to terminate his right to contact his children was a termination of
parental rights.
        At the same hearing, Vassallo discussed how communication had operated under the
decree as it stood. She stated that she had, from time to time, asked her children if they wished
to send a letter to Driggers, and each child declined. She also stated that she had never received
any letter from Driggers through the Department because the Department deemed each letter
inappropriate.
        Finally, the court considered Driggers’ efforts to conduct discovery. In the magistrate’s
oral discussion of the case, it raised several factors. First, the court said that its decision to deny
Driggers’ motion to modify the custody decree left no pending matters before the court upon
which Driggers could seek discovery. Second, the court appears to have taken the view that
Driggers’ continued filing of baseless motions and other behavior in the case amounted to
harassment.      This factor was not clearly addressed as the pending motions were primarily
brought by Driggers’ counsel and there is no indication they were improper or harassing. Rather,
the court commended counsel for being tactful and careful. In any case, the court was very
concerned by the possibility of harassment given Driggers’ criminal history and a report from
Vassallo that Driggers had once again attempted to have his wife killed, this time from inside the
prison. Thereafter, in its written decision, the magistrate court appears to have denied Driggers
access to discovery solely upon the grounds that he had no physical or legal custody and thus no
right to discovery.
        Driggers took an appeal from this decision to the district court. Driggers had counsel at
that time and raised four arguments as to why the magistrate court’s decisions were in error:
Driggers asserted that he has a Fourteenth Amendment right to maintain a familial relationship,
which was violated; that his parental rights were not terminated and that imprisonment is not per
se grounds for terminating his rights; that he had a right to discovery not only as a procedure to
develop certain legal claims but to discern the status of his children; and that Vassallo’s sole
legal custody did not terminate Driggers’ right to communicate with his children either by law or
by the express terms of the stipulated agreement.


                                                  4
       The district court addressed two issues. First, it considered whether the magistrate erred
by finding that there was no substantial change in circumstances and consequently did not reopen
the custody matter. Second, it addressed whether the magistrate erred in denying Driggers’
request to conduct discovery. The district court concluded that Driggers was not entitled to a
modification of a custody decree unless he could show a material, permanent, and substantial
change in circumstances. It then determined that the magistrate court failed to adequately
consider whether such a change had occurred when the Department became unavailable as an
intermediary. On this basis, the district court remanded the case to the magistrate court for a
determination of whether such a change existed. As to the discovery issue, the district court held
that the magistrate court did not abuse its discretion.
       On appeal to this Court, Driggers raises many issues. We view these as falling within
five broad categories. 5 First, Driggers asserts that the courts below have ignored the express
terms of the stipulated agreement, which set forth a specific means for Driggers to communicate
with his children. Driggers argues that the original order did not contemplate using Vassallo as
the gatekeeper of his communications with his children and that permitting her to act as a
gatekeeper denies his fundamental right to parent. He argues that Vassallo’s statement that she
would prevent him from communicating with her children shows that she is not fit to fairly
determine whether his communications should be shown to the children. 6 Likewise, Driggers


5
        Driggers’ briefing at times makes factual allegations that are clearly contradicted by his
prior statements. For example, he now claims that the magistrate’s statement granting Vassallo
“sole legal sole physical custody” is ambiguous. He asserts that the magistrate misspoke
originally when he said “sole legal custody” and corrected himself when he said “sole physical
custody.” In the alternative, he argues the phrase means that Vassallo was to have sole physical
custody in a way that was legally sanctioned. His present claim of confusion is controverted by
his prior purportedly sworn statement that “the parties agree[d] that [Vassallo] would have sole
legal and physical custody of [the children].” Likewise, Driggers vacillates in his claims
regarding the severity of Vassallo’s mental illness, at times arguing she is not a competent parent
and at other times stating that mental illness does not render her an incompetent parent.
6
       Driggers also argues, at length, that Vassallo has impermissibly poisoned the relationship
between him and the children. In support of this claim, Driggers cites to a brief purportedly
submitted by Vassallo. The quoted section contains written statements purportedly by the
children regarding letters they received from Driggers in which the children expressed revulsion
at the communication. In these quotations, the children recall being physically assaulted by
Driggers and do not appear to have any fond memories of their father. Driggers argues this is
evidence of Vassallo’s scheme. Driggers falls well short of demonstrating that these letters are

                                                  5
argues that a change in the party reviewing his letters for appropriateness is a material and
substantial change in circumstances that warrants the reopening of his case.
       Second, Driggers contends that the magistrate erred by disallowing discovery on the
ground that Driggers does not presently have legal custody. He argues that if this were the law,
it would be impossible for a parent who lost custody to ever obtain custody because that parent
would lack the information needed to prosecute his case. Additionally, he argues that the rules
of civil procedure govern discovery and were not properly applied in his case.
       Third, Driggers argues that his parental rights were constructively terminated and that
this constructive termination was done without basis and without proper procedures being
followed. 7 He bases this argument, in part, upon an assertion that imprisonment does not
automatically result in the termination of parental rights. In the same vein, Driggers asserts that
his parental rights include a right to information regarding the well-being of his children.
       Fourth, Driggers challenges the 2008 decision by the magistrate court on a jurisdictional
basis. Driggers appears to assert that he can continue this claim because it is part of an attack on
the jurisdiction of that court that has been ongoing since 2008.
       Finally, Driggers argues that forcing him to have his case heard at the magistrate court
level on remand from the district court would prejudice him. He asserts, without any citation or
reference to the record, that the magistrate is biased against him. Second, he argues that remand
causes delay and therefore prejudice. In part, these arguments are based upon his perception that
he has continuously attacked the original 2008 decision for the past five years.




the result of Vassallo’s manipulations rather than the honest recollection of children who, for
their own reasons, find their father or his behavior contemptible. We do not review this issue
because it does not appear to have been raised below. Furthermore, the sources Driggers cites
are not in our record.
7
        Driggers is correct that his parental rights have not been terminated. Although it appears
that his parental rights might be subject to termination pursuant to I.C. § 16-2005(1)(e) or
I.C. § 16-2005(2)(b)(iv), no action for termination has been brought.

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                                                 II.
                                            ANALYSIS
A.      The Magistrate Court Had Jurisdiction
        Because a lack of jurisdiction would be dispositive, we review that issue first. Driggers
argues that the trial court lacked jurisdiction to impose the terms of the 2008 order. The time to
appeal the 2008 order has long since passed and Driggers’ repeated appeals challenging that
decision have been dismissed by the district court and the Idaho Supreme Court on at least two
prior occasions. His argument that he can challenge that order in this case because his attack is
jurisdictional is meritless.   Driggers essentially asserts that later courts have not properly
interpreted the 2008 order and claims this divests the court of personal and subject matter
jurisdiction.
        That claim is not jurisdictional but simply a claim of judicial error. As we said in State v.
Armstrong, 146 Idaho 372, 375, 195 P.3d 731, 734 (Ct. App. 2008), the “precise use of the term
‘jurisdiction’ refers only to either personal jurisdiction over the parties or subject matter
jurisdiction.” In that case, we cautioned against using the word “jurisdiction” more loosely “to
refer simply to a court’s authority to take a certain action or grant a certain type of relief . . .
when [the parties] really mean simply that the court committed error because the action that was
taken did not comply with governing law.”             Id.   Here, Driggers complains that the later
construction of the order is erroneous. As we stated in Armstrong, that is not a jurisdictional
challenge. The subject matter jurisdiction of the magistrate over the divorce and child custody
issues is set forth in I.R.C.P. 82(c)(2).    For all of these reasons, Driggers’ “jurisdictional”
challenge fails. Moreover, it is clear that the trial court had jurisdiction. The trial court obtained
personal jurisdiction over Driggers when he filed this action. Even if Driggers ever could have
raised the defense of personal jurisdiction as a plaintiff, he waived any objection to personal
jurisdiction by voluntarily appearing at the hearings and failing to raise this issue promptly. See,
e.g., Dragotoiu v. Dragotoiu, 133 Idaho 644, 647, 991 P.2d 369, 372 (Ct. App. 1998).
B.      The Permissible Scope of Driggers’ Appeal
        We next consider the permissible scope of Driggers’ claims on appeal. The district court
held that the magistrate did not properly determine whether there had been a material,
permanent, and substantial change in circumstances sufficient to reopen the custody matter, and
the district court remanded for the magistrate court to address that issue. By so doing, the district


                                                  7
court implicitly agreed with Driggers’ assertion that he retained certain parental rights. This
portion of the district court’s decision on appeal was in Driggers’ favor.
       Idaho Appellate Rule 4 limits the parties who may take an appeal to “[a]ny party
aggrieved by an appealable judgment, order or decree.” Thus, “in order to have the right to
appeal, one must satisfy two requirements: first, one must be a party, and second, one must be
‘aggrieved.’” Kinghorn v. Clay, 153 Idaho 462, 465, 283 P.3d 779, 782 (2012). Driggers is a
party, but has not been aggrieved by the district court’s disposition of this claim of error.
       We have previously determined whether a party is aggrieved by asking whether a party
was “injuriously affected” by the decision of the lower court. Id. Although it appears that
Driggers was aggrieved by the district court decision regarding discovery, that does not mean
that he can appeal other components of the district court’s decision that were not adverse to
Driggers. In Abolafia v. Reeves, 152 Idaho 898, 903, 277 P.3d 345, 350 (2012), the Idaho
Supreme Court held that a party was not “an aggrieved party because as to those issues [the party
was] not injuriously affected by the judgment of the district court.” As to the main issue in this
appeal--whether the custody dispute should have been reopened and what manner of custody
decree should be entered--Driggers was not aggrieved by the district court’s decision. To the
extent Driggers claims that the district court erred because remand to the magistrate court for
further proceedings was an improper remedy, he is mistaken. A factual determination of whether
there has been material change in circumstances is required before reaching the other custody
modification issues. Evans v. Sayler, 151 Idaho 223, 226, 254 P.3d 1219, 1222 (2011). The
district court remanded the case back to the magistrate court for factual findings because the fact-
finding or analysis of the magistrate was insufficient. Neither this Court nor the district court
sitting in its appellate capacity can make this factual finding. Accordingly, a remand was the
appropriate remedy.
       Nor has Driggers shown that the remand is prejudicial. His first claim of prejudice is that
the magistrate is biased against him. That is not a basis for holding a remand to be prejudicial.
On remand, if Driggers thinks the magistrate assigned to the case is biased against him, he can
bring a motion to disqualify for cause pursuant to I.R.C.P. 40(d)(2). The magistrate can then,
after notice and a hearing, determine whether he is biased or not. Driggers’ prejudice argument
is no more than an attempt to circumvent the provisions of I.R.C.P. 40(d)(2). His second
contention--that he will be prejudiced because a remand will cause delay--is also without merit.


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First, as explained above, a factual finding is required before this Court or any other appellate
court could address other issues. A remand to the trial court is the only way to obtain that factual
finding. Second, Driggers’ proposed alternative, a trial de novo, would require further delay and
therefore would not mitigate any possible delay. Accordingly, the district court’s decision,
favorable to Driggers, on Driggers’ claim that there has been a substantial change in
circumstances is affirmed. 8
C.     Driggers’ Request for Discovery
       The magistrate court held that Driggers “cannot conduct discovery in this matter, as he
does not have any custody rights to his children while he is incarcerated.” In its appellate
capacity, the district court held that the magistrate had discretion to control discovery and that
the magistrate did not abuse its discretion by denying discovery.
        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 lower court reached its decision by an exercise of reason. State v. Hedger,
115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
       The magistrate issued a written decision concerning discovery, holding that Driggers was
not entitled to discovery because he had no custody rights as to his children. It thus appears that
the magistrate court did not perceive the issue as discretionary, but applied what it apparently
viewed to be a per se rule. We know of no statute, rule, or precedent that completely bars a
noncustodial parent from conducting discovery. Rather, a noncustodial parent seeking a change
in an existing custody order must prove that there has been a “material, permanent and
substantial change in conditions,” Evans, 151 Idaho at 225, 254 P.3d at 1221.              In some
circumstances, discovery may be reasonable and necessary in order to meet this burden.
Accordingly, we are constrained to hold that the magistrate court erred when it held that
Driggers, as a noncustodial parent, may never conduct discovery.



8
        This disposition also covers Driggers’ contention that the trial court essentially
terminated his parental rights. This argument is nothing more than the recasting of his claim that
the trial court erred in deciding the custody issues. Accordingly, if the custody issue should be
remanded, the constructive termination issue must also be remanded.

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       That is not to say, however, that Driggers is entitled to discovery. The magistrate court
will have considerable discretion to control discovery. Idaho Rule of Civil Procedure 26(c)
authorizes the court to issue protective orders to protect the parties “from annoyance,
embarrassment, oppression, or undue burden or expense. Rule 26(f) specifies that signing a
discovery request thereby certifies that the signer believes that the discovery request is warranted
and not interposed for any improper purpose, such as to harass the other party and is not unduly
burdensome or expensive; and if such certification is made in violation of the rule, the court may,
upon motion or upon its own initiative, impose an appropriate sanction.
                                                III.
                                         CONCLUSION
       To the extent Driggers claims that the district court erred by remanding the case for
further consideration by the magistrate of Driggers’ motion to modify the custody decree
regarding communications with his children, we affirm the district court’s decision. We also
hold the discovery issue must be remanded to the magistrate court for further proceedings
consistent with this opinion.     Therefore, we vacate the district court’s decision regarding
discovery and remand accordingly.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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