               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41820

STATE OF IDAHO,                                 )    2015 Unpublished Opinion No. 301
                                                )
       Plaintiff-Respondent,                    )    Filed: January 5, 2015
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
BILLY RACINE OLDHAM, JR.,                       )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Defendant-Appellant.                     )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia
       County. Hon. Michael R. Crabtree, District Judge.

       Order denying motion to modify no-contact order, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Eric D. Fredericksen, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent.



LANSING, Judge
       After Billy Racine Oldham, Jr. pleaded guilty to arson in violation of Idaho Code § 18-
802, the district court entered a no-contact order (NCO) protecting his ex-wife. Oldham filed a
motion to modify the NCO to allow him to contact his ex-wife regarding their children, but the
motion was denied by the district court. Oldham appeals.
                                                I.
                                        BACKGROUND
       This Court set forth the underlying facts of this case in two prior appeals. In State v.
Oldham, Docket No. 36118 (Ct. App. May 27, 2010) (unpublished) we stated:
              Oldham was charged with first degree arson, Idaho Code § 18-802, with a
       sentence enhancement for being a persistent violator, I.C. § 19-2514. In a related
       but separate case, Oldham had previously been charged with attempted

                                                1
       strangulation, I.C. § 18-923. The two cases were consolidated for trial. It was
       alleged that Oldham assaulted his wife by choking her with his hands during an
       argument and, after his wife took the couple’s children and left their residence,
       that Oldham set his own house afire using gasoline as an accelerant. Oldham
       initially pleaded not guilty to all charges, but later pleaded guilty to the arson
       charge under a plea agreement. In exchange, the State stipulated to dismiss the
       strangulation charge and the enhancement, and further agreed not to pursue any
       charges against Oldham’s wife for criminal conduct she had revealed to the police
       during the investigations of the crimes.
                The district court imposed a unified sentence of fifteen years with five
       years determinate and granted 388 days’ credit for time served.

In that appeal, we held that Oldham failed to show “any constitutional infirmity in his plea” or
any abuse of discretion relating to his sentence.
       Thereafter, in State v. Oldham, Docket No. 38633 (Ct. App. Sept. 17, 2012)
(unpublished), this Court considered Oldham’s appeal from the denial of his motion to modify
the NCO. In that case, we set forth the facts relating to that order:
              The district court issued a no-contact order (NCO) against Oldham on
       January 21, 2009, after Oldham pled guilty to first degree arson. The NCO
       prohibited Oldham from having contact with his then wife, Sabre Oldham, for a
       period of one year, until January 21, 2010. The order was issued to protect
       Ms. Oldham as the alleged victim of the arson case.
              In June 2009, Oldham filed a motion to modify the NCO to allow him to
       have telephone contact with his minor children pursuant to the decree of divorce
       between himself and Ms. Oldham. Oldham’s counsel requested that the district
       court either dismiss the NCO or modify it to allow Oldham to have incidental
       contact with Ms. Oldham for the purpose of making a weekly telephone call to his
       minor children whom she had full custody of.
              Following a hearing on his motion, the district court granted the request
       for modification, allowing Oldham to place telephone calls to Ms. Oldham to talk
       with the children. The district court also extended the NCO’s duration to
       December 15, 2023.

In that appeal, Oldham argued that the district court erred by entering the NCO in the first place.
He argued that his wife was not within the classes protected by the statutes governing NCOs. He
argued that she was not a victim because the battery charge had been dismissed as part of his
plea agreement and argued that she was not a witness because the case never proceeded to trial.
We held that Oldham was not permitted to raise those issues in that appeal because both issues
could have been raised in the district court and on appeal in 2009 when the order was entered, or




                                                    2
later when he first requested that it be modified. On that basis, the court affirmed an order
denying Oldham’s motion to terminate the NCO.
       As modified, the NCO permits Oldham to contact his ex-wife “solely for the purpose of
telephone conversation with Defendant’s minor children, as provided in Cassia County divorce
case CV-08-815.” In 2014, Oldham filed a successive motion to modify the NCO, seeking
permission to contact his ex-wife to speak with her regarding their children. He also argued that
the court erred by extending the NCO in 2009, because neither party requested an extension. 1
The State objected to the motion to modify2 and the district court denied the motion, holding that
there was no “substantial change in circumstances” that would warrant a modification of the
NCO. Oldham timely appealed.
                                                II.
                                             ANALYSIS
       Oldham argues that the court erred by failing to properly exercise its discretion and
contends that the NCO is no longer appropriate. First, he argues that his good conduct, i.e., not
violating the NCO for a period of five years, is a change in circumstances. 3 Second, he argues
that the court’s decision frustrates his ability to interact with his children and guide their
upbringing.
       Recently, the Idaho Supreme Court set forth the standard of review applicable to a
motion to modify an NCO:
       The decision whether to modify a no contact order is within the sound discretion
       of the district court. The test for determining whether a district court abused its
       discretion is: (1) whether the court correctly perceived that the issue was one of
       discretion; (2) whether the court acted within the outer boundaries of its discretion


1
       That issue is not raised on appeal.
2
       The State objected by hand writing the words “[t]he State objects to this motion” on its
copy of the motion and filing that document with the district court. Because this was not raised
as an issue on appeal, we are given no occasion to decide whether this is a proper means of
responding to a motion.
3
        There is no actual evidence that Oldham has not violated the NCO. Instead, Oldham
infers this fact from the fact that the district court did not mention any violations of the NCO in
its order. This inference is not particularly persuasive given the contents of certain letters, as
described at the hearing, in which Oldham attempted to make impermissible contact with his ex-
wife under the ruse of sending letters to his children.
                                                3
       and consistently with the legal standards applicable to the specific choices
       available to it; and (3) whether it reached its decision by an exercise of reason.

State v. Cobler, 148 Idaho 769, 771, 229 P.3d 374, 376 (2010). Here, the district court reasoned
that neither of the issues Oldham presented warranted any change to its prior analysis.
Accordingly, we look to the court’s prior analysis and also at the alleged change in
circumstances.
       When addressing the first motion to modify the NCO, the court considered the terms of
the divorce decree and permitted contact consistent with that divorce decree. In that case,
because the decree authorized contact between Oldham and his children, the court modified the
NCO to facilitate that contact. Conversely, in this case, the decree tends to show that further
modification was unnecessary. The divorce decree grants sole legal and physical custody of the
children to Oldham’s ex-wife. In Mahnami v. Mahnami, 156 Idaho 338, 343, 325 P.3d 679, 684
(Ct. App. 2014), this Court discussed the differences between joint legal custody and sole legal
custody and reasoned that sole custody amounts to “unilateral authority.” Likewise, in Silva v.
Silva, 142 Idaho 900, 907, 136 P.3d 371, 378 (Ct. App. 2006), we held that sole legal custody
conveys unilateral “decision-making rights, responsibilities, and authority.” Thus, our record
shows that Oldham’s ex-wife enjoys the discretion to make parenting decisions without
Oldham’s input or in direct contravention of it. Accordingly, Oldham has failed to show that a
modification is necessary to advance his interest in parenting his children.
        Moreover, like the district court, we do not conclude that any change in circumstances
warrants a change in the NCO. Oldham’s compliance with the NCO, to the extent it has
occurred, is not grounds for removing the NCO. Simply put, the mere avoidance of criminal
conduct is not so laudable that the court’s original judgment concerning Oldham’s risk and
potential to harass his ex-wife has been rendered suspect.
       For all these reasons, we affirm the order of the district court denying the motion to
modify the NCO.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




                                                 4
