               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 47322

ANDREW JAMES MAXWELL,                            )
                                                 )    Filed: December 5, 2019
       Petitioner-Respondent,                    )
                                                 )    Karel A. Lehrman, Clerk
v.                                               )
                                                 )    THIS IS AN UNPUBLISHED
DIMITRIYANA MAXWELL,                             )    OPINION AND SHALL NOT
                                                 )    BE CITED AS AUTHORITY
       Respondent-Appellant.                     )
                                                 )

       Appeal from the Magistrate Division of the District Court of the Fourth Judicial
       District, State of Idaho, Ada County. Hon. Kira L. Dale, Magistrate.

       Judgment modifying custody and child support, affirmed.

       Bevis, Thiry & Schindele, P.A., Boise; Philip M. Bevis for appellant. Jennifer
       Schindele argued.

       Cosho Humphrey, LLP, Boise; Stanley W. Welsh for respondent argued.
                ________________________________________________

LORELLO, Judge
       Dimitriyana Maxwell appeals from a judgment modifying custody and child support. For
the reasons set forth below, we affirm.
                                                 I.
                        FACTUAL AND PROCEDURAL BACKGROUND
        Andrew James Maxwell and Dimitriyana Maxwell divorced in 2016, having two minor
children. Andrew was awarded primary physical custody of the children, with Dimitriyana
receiving visitation.    Eventually, Andrew moved to Washington to pursue employment
opportunities and a romantic relationship, leaving the children in Dimitriyana’s custody. After
moving to Washington, Andrew filed a petition to modify custody and child support, seeking a
new custody schedule that would serve the children’s best interests. Dimitriyana filed an answer
and counterclaim, seeking a new custody schedule and a child support modification. After a


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trial, the magistrate court concluded that it was in the children’s best interests to grant Andrew’s
petition, allowing him to relocate the children to Washington during the school year, and
awarding Dimitriyana primary physical custody during the summer.              Dimitriyana filed a
permissive appeal under I.A.R. 12.1.
                                                 II.
                                   STANDARD OF REVIEW
       A magistrate court may modify child custody only when a material, substantial, and
permanent change of circumstances indicates that modification is in the best interests of the
child. Woods v. Woods, 163 Idaho 904, 906, 422 P.3d 1110, 1112 (2018). The decision to
modify child custody falls within the trial court’s sound discretion. Id. We will not substitute
our judgment and discretion for the trial court’s in the absence of a clear abuse of discretion. Id.
When a trial court’s discretionary decision is reviewed on appeal, the appellate court conducts a
multi-tiered inquiry to determine whether the lower court: (1) correctly perceived the issue as
one of discretion, (2) acted within the boundaries of such discretion, (3) acted consistently with
any legal standards applicable to the specific choices before it, and (4) reached its decision by an
exercise of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).
                                                 III.
                                            ANALYSIS
       Dimitriyana raises three issues on appeal: (1) whether the magistrate court abused its
discretion in awarding Andrew primary physical custody of the children; (2) whether the
magistrate court abused its discretion in failing to award Dimitriyana retroactive child support;
and (3) whether the magistrate court abused its discretion in allocating to Dimitriyana travel
costs related to her visitation with the children. We hold that Dimitriyana has failed to establish
an abuse of discretion in relation to any of these issues.
A.     Physical Custody
       Dimitriyana argues the magistrate court abused its discretion by granting Andrew
primary physical custody of the children and allowing him to relocate them to Washington
during the school year. Specifically, Dimitriyana contends that the magistrate court erred in its
evaluation of the children’s best interests by reaching conclusions unsupported by substantial and
competent evidence, failing to give proper weight to Andrew’s move to Washington, failing to


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find that one factor relevant to the children’s best interests weighed in Dimitriyana’s favor, and
overemphasizing a single factor when considering the children’s best interests. Andrew argues
that the magistrate court reached its conclusions through an extensive analysis that correctly
evaluated the evidence under the relevant statutory factors and applicable case law. We hold that
the magistrate court did not err in reaching its custody decision.
       1.      Character and circumstances
       We begin by examining whether substantial and competent evidence supports the
magistrate court’s conclusions regarding the best interests of the children.          Dimitriyana
challenges the magistrate court’s conclusion that the character and circumstances of all the
individuals involved favored relocating the children to Washington. Dimitriyana contends this
conclusion is not supported by substantial and competent evidence.          Andrew contends the
magistrate court properly concluded this factor does not favor Dimitriyana.         We hold that
substantial and competent evidence supports the magistrate court’s conclusion.
       The best interests of the child are of paramount importance in decisions affecting child
custody. Roberts v. Roberts, 138 Idaho 401, 403-04, 64 P.3d 327, 329-30 (2003). Although trial
courts must consider all relevant factors when making custody decisions, I.C. § 32-717(1)
contains a nonexclusive list of factors for courts to consider. One of the statutory factors courts
may consider when making custody decisions is the “character and circumstances of all
individuals involved.” I.C. § 32-717(1)(e).      It is an abuse of discretion to conclude that a
particular custody modification would serve a child’s best interests without sufficient evidentiary
support. Nelson v. Nelson, 144 Idaho 710, 713, 170 P.3d 375, 378 (2007). On appeal, we will
not set aside the magistrate court’s findings unless they are clearly erroneous. Peterson v.
Peterson, 153 Idaho 318, 320-21, 281 P.3d 1096, 1098-99 (2012).             Findings based upon
substantial evidence will not be overturned on appeal even if there is conflicting evidence.
Nelson, 144 Idaho at 713, 170 P.3d at 378.
       Substantial and competent evidence supports the magistrate court’s conclusion that the
character and circumstances of all those involved favored relocating the children to Washington
during the school year. The magistrate court found that, while in Dimitriyana’s custody, the
older child had significant school attendance issues. Despite living only a five-minute walk from
her school, the child was tardy on twenty-six occasions and accumulated twenty-five absences in


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a single school year. Dimitriyana argues that the school attendance issues merit little weight
because they did not negatively impact the child’s school performance or socialization. We
disagree. Although the child’s academic performance did not suffer, the magistrate court made
reasonable inferences that the attendance issues had negative effects on the child’s education and
social development. In addition to these attendance issues, the magistrate court cited a subset of
Dimitriyana’s communications with Andrew and his family (which contain both profanity and
derogatory comments about Andrew, his family, and even the children) and Dimitriyana’s
negative reactions to Andrew’s move to Washington. Based on this evidence, the magistrate
court concluded that Dimitriyana is less likely to promote a strong relationship between the
children and Andrew in a distance parenting plan.
       Dimitriyana asserts that she had overcome the attendance and communication issues by
the time of trial and that the magistrate court failed to give proper weight to Andrew’s decision
to move to Washington when evaluating his character. However, weighing conflicting evidence
is a trial court function. Lamont v. Lamont, 158 Idaho 353, 362, 347 P.3d 645, 654 (2015). The
record shows that the magistrate court did not abuse its discretion in weighing the evidence
regarding attendance, communication, and relocation.        In particular, the magistrate court
considered Dimitriyana’s history to be a better indicator of her character. The magistrate court
also expressly evaluated Andrew’s decision to move to Washington, noting it was of “central
concern” to the analysis. We will not substitute the magistrate court’s view of the facts with our
own. In light of the record, we hold that there is substantial support for the magistrate court’s
conclusion that the character and circumstances of all those involved favored relocating the
children to Washington during the school year.
       2.      Continuity and stability
       Dimitriyana argues that the magistrate court erred in concluding that the need to promote
continuity and stability in the children’s lives favored neither parent. Dimitriyana contends that
she is the only parent who promoted stability in the children’s lives since Andrew moved to
Washington.    Andrew contends that Dimitriyana has failed to cite legal authority for her
argument and that the magistrate court’s conclusion was supported by substantial and competent
evidence. We hold that the magistrate court did not err in concluding that this factor favored




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neither parent but did favor relocating the children to Washington, in part due to Andrew’s
greater ability to provide continuity and stability for the children in the future.
       One statutory factor courts may consider when determining what custody arrangement
serves a child’s best interests is the “need to promote continuity and stability in the life of the
child.” I.C. § 32-717(1)(f). When discussing this factor, the magistrate court recognized that
Dimitriyana had the status quo on her side. The children have lived in Idaho since birth and have
many family members here, including both Andrew’s and Dimitriyana’s parents. Additionally,
although the children have spent some time with Andrew in Washington, they have remained in
Idaho in Dimitriyana’s primary custody since Andrew’s move.                   However, based upon
Dimitriyana’s unstable employment, her post-divorce financial decision-making that culminated
in a personal bankruptcy, and her tendency to react with emotion to stressful situations, the
magistrate court determined that Andrew possessed a greater ability to provide continuity and
stability for the children during the school year. Dimitriyana argues that the magistrate court’s
conclusion regarding Andrew’s ability to provide stability lacks sufficient evidentiary support.
We disagree.     Andrew testified regarding his stable daily routine and employment.           The
magistrate court could give this evidence the weight it felt was appropriate. See Lamont, 158
Idaho at 362, 347 P.3d at 654. We hold that the magistrate court did not err in its evaluation of
the continuity and stability factor.
       3.      Overemphasizing a single factor
       Dimitriyana argues that the magistrate court abused its discretion in granting Andrew
primary physical custody of the children by overemphasizing a single factor in its evaluation of
the children’s best interests. Specifically, Dimitriyana contends that the magistrate court placed
too much weight on the character and circumstances of all those involved. Andrew argues that
the magistrate court properly considered all the relevant factors to determine what custody
arrangement served the children’s best interests. We hold that the magistrate court did not
overemphasize a single factor when determining the children’s best interests.
       As previously stated, the best interests of the child are of paramount importance in
decisions affecting child custody. Roberts, 138 Idaho at 403-04, 64 P.3d at 329-30. An abuse of
discretion in determining child custody may occur where the court overemphasizes one factor
and thereby fails to support its conclusion that the interests of a child will be best served by a


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particular custody award. Silva v. Silva, 142 Idaho 900, 906, 136 P.3d 371, 377 (Ct. App. 2006).
However, a trial court need not give each relevant factor the same weight when determining a
child’s best interests. Id. at 907, 136 P.3d at 378. When the record shows that the trial court
properly considered the relevant factors along with the pertinent evidence, we will not disturb the
trial court’s custody decisions. Brownson v. Allen, 134 Idaho 60, 63-64, 995 P.2d 830, 833-34
(2000).
          Here, the magistrate court made extensive factual findings to support its custody
determination. These factual findings were then discussed in relation to each relevant factor
listed under I.C. § 32-717(1). Considering the scope of its inquiry, Dimitriyana has not shown
that the magistrate court overemphasized any single factor relating to the children’s best
interests. Thus, Dimitriyana has not shown that the magistrate court abused its discretion in
weighing the factors relevant to the children’s best interests.
B.        Retroactive Child Support
          Dimitriyana argues that the magistrate court erred in failing to grant her request for
retroactive child support. Dimitriyana contends that the magistrate court failed to rule on a
request she made during trial for a retroactive child support modification for the months of July
through November of 2018. Andrew argues that other financial benefits Dimitriyana received in
the modification judgment satisfy any child support arrearage. We hold that Dimitriyana has
failed to preserve this issue.
          Although Dimitriyana requested a retroactive modification to Andrew’s child support
obligation during trial, the magistrate court never ruled on the request. We will not review an
alleged error on appeal when an adverse ruling that forms the basis of the assignment of error is
absent from the record. De Los Santos v. J.R. Simplot Co. Inc., 126 Idaho 963, 969, 895 P.2d
564, 570 (1995).
C.        Travel Costs
          Dimitriyana argues the magistrate court abused its discretion in allocating to her the
travel costs for her visitation with the children. Specifically, Dimitriyana argues the magistrate
court imposed this obligation without considering the factors listed under I.R.F.L.P. 126(H)(2).
Andrew argues that Dimitriyana failed to submit evidence on the issue of travel costs and that the
magistrate court considered the relevant factors to the extent possible considering the


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deficiencies in the record. We hold that the magistrate court did not abuse its discretion because
it did not allocate Dimitriyana’s travel costs to either party under I.R.F.L.P. 126(H)(2) when
considering the modification of child support.
       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. Davies v. Davies, 160 Idaho 74, 79, 368 P.3d 1017, 1022 (Ct. App. 2016).
In the absence of some evidence justifying a deviation, the child support awarded must be the
amount stated in the Idaho Child Support Guidelines. Garner v. Garner, 158 Idaho 932, 937,
354 P.3d 494, 499 (2015). As part of a guideline’s calculation, a magistrate court may order an
allocation for travel costs between the parties after considering “all relevant factors.”
I.R.F.L.P. 126(H)(2). 1 If applying the guidelines would be unjust or inappropriate in a particular
case, the trial court must state on the record the dollar amount of support the guidelines require
and the circumstances justifying departure. Garner, 158 Idaho at 937, 354 P.3d at 499.
       A review of the magistrate court’s findings and conclusions shows that the magistrate
court did not allocate travel costs to Dimitriyana related to her visitation with the children.
Rather, the magistrate court followed the proper procedure to relieve Dimitriyana of her
obligation to pay child support. The magistrate court began its analysis of the parties’ respective
child support obligations by applying the guidelines.         The guidelines recommended that
Dimitriyana pay Andrew a base child support payment of $275 per month until their eldest
child’s eighteenth birthday, after which Dimitriyana’s obligation would decrease to $4 per
month. 2 However, despite the guidelines’ recommendation, the magistrate court imposed no
child support obligation on Dimitriyana, concluding that such an obligation would be unjust or
inappropriate under the circumstances. Specifically, the magistrate court concluded that it was
more important that Dimitriyana have the financial means to exercise her visitation during the
school year than it was for her to provide the children’s financial support. Thus, the magistrate
court concluded it would be unjust or inappropriate to impose a child support obligation on



1
       To aid in this determination, the rule contains a nonexclusive list of factors to consider.
2
       Neither party disputes the accuracy of the magistrate court’s calculations.



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Dimitriyana in light of her financial circumstances and relieved her of her child support
obligation.
       In sum, the magistrate court calculated Dimitriyana’s child support obligation, stated on
the record why imposing the obligation would be unjust or inappropriate, and then relieved
Dimitriyana of her obligation to pay child support. Because it allocated no travel costs to
Dimitriyana, the magistrate court could not have abused its discretion by failing to consider
factors relevant to making such an allocation. 3 Dimitriyana has failed to show the magistrate
court abused its discretion in allocating to her travel costs related to her visitation with the
children.


D.     Attorney Fees and Costs
       Andrew argues he is entitled to attorney fees on appeal under I.A.R. 41 and I.C. § 12-121.
Dimitriyana does not seek attorney fees on appeal, but argues that Andrew is not entitled to fees
because her appeal is not frivolous. 4 Under I.C. § 12-121, an award of attorney fees on appeal is
permitted when the Court determines an appeal was brought, pursued, or defended in a frivolous,
unreasonable, or foundationless manner. Boe v. Boe, 163 Idaho 922, 935, 422 P.3d 1128, 1141
(2018). Here, we cannot conclude that Dimitriyana’s appeal was frivolous, unreasonable, or
without foundation. Consequently, an award of attorney fees on appeal is improper.
                                                IV.
                                         CONCLUSION
       The magistrate court properly analyzed the best interests of the children in concluding
that Andrew should have primary custody of the children during the school year. Dimitriyana
has not preserved her argument that she is entitled to retroactive child support. Finally, the
magistrate court did not err in allocating travel costs to Dimitriyana related to her visitation with
the children and did not err by failing to make findings under I.R.F.L.P. 126(H)(2).


3
        To the extent Dimitriyana believes the magistrate court should have allocated her travel
costs to Andrew in addition to eliminating her child support obligation, Dimitriyana’s briefs
contain no cogent argument to that effect. Thus, we will not address the issue.
4
        Dimitriyana does seek an award of court costs under I.A.R. 40; however, she is not
entitled to costs because she is not the prevailing party.

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Consequently, the judgment modifying custody and child support is affirmed. Costs on appeal
are awarded to Andrew.
       Chief Judge GRATTON and Judge BRAILSFORD, CONCUR.




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