                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                         Docket No. 34527

AMBER MACKOWIAK, fka Amber Harris, )
                                   )                           Boise, December 2008 Term
     Plaintiff-Appellant,          )
                                   )                           2009 Opinion No. 34
v.                                 )
                                   )                           Filed: March 5, 2009
SETH HARRIS,                       )
                                   )                           Stephen W. Kenyon, Clerk
     Defendant-Respondent.         )
                                   )

       Appeal from the District Court of the Fourth Judicial District of the State of
       Idaho, in and for Ada County. The Hon. D. Duff McKee, District Judge; Hon.
       Russell A. Comstock, Magistrate Judge.

       The order of the district court affirming the trial court is affirmed.

       Bauer & French, Boise, for appellant. Charles B. Bauer argued.

       Weigt Law Offices, Chtd, Meridian, for respondent. Dennis C. Weigt argued.




EISMANN, Chief Justice.
       This is an appeal from an order reducing the payor’s child support obligation to zero
because he is incarcerated in the penitentiary and requiring that either party bring appropriate
proceedings to increase the amount of child support upon the payor’s release. The payee
appealed both provisions. We hold that the payee cannot challenge the first provision because
she did not oppose the child support reduction in the trial court and that she has not shown any
abuse of discretion by the trial court in failing to order that the child support automatically revert
to the prior level upon the payor’s release from prison.


                          I. FACTS AND PROCEDURAL HISTORY
       Amber Mackowiak (Mackowiak) and Seth Harris (Harris) were divorced on January 24,
2005. Mackowiak was awarded primary physical custody of their two minor children, and
Harris was ordered to pay child support in the sum of $500 per month. He was also ordered to
pay spousal maintenance, and the divorce decree provided that his monthly child support
obligation would increase to $750 when his spousal maintenance obligation ended.
       On November 17, 2005, Harris broke into the home of Mackowiak’s boyfriend and future
husband. Harris held the boyfriend at gunpoint for about twenty minutes, during which time
Harris interrogated him about his intentions regarding Mackowiak.            After Harris left, the
boyfriend called the police. Harris was charged with and pled guilty to aggravated assault and
burglary, both of which are felonies. He was sentenced to ten years in the custody of the Idaho
Board of Correction, with three years fixed and seven years indeterminate.
       On May 8, 2006, Harris filed a motion to abate his child support obligation until sixty
days after his release from incarceration. An evidentiary hearing on that motion was scheduled
on July 21, 2006. Mackowiak did not appear at the hearing, nor did she file anything objecting
to the motion. Harris had family members present to testify as to his lack of financial resources,
but the trial court told him they would be unnecessary. The court ruled that because the parties
had previously stipulated that Harris was incarcerated and there was no evidence he had
resources with which to pay child support, Harris’s child support obligation would be set at zero
until he is released from incarceration. On August 8, 2006, the court entered an order setting the
child support at zero, requiring Harris to notify Mackowiak of his release from incarceration, and
providing that either party could file a motion to modify child support upon his release.
       On August 22, 2006, Mackowiak filed a motion to amend the order, objecting to the
provision that either party would have to file a motion to set the amount of child support upon
Harris’s release from incarceration. Mackowiak’s counsel stated that she did not oppose the
child support being reduced to zero during Harris’s incarceration. She only opposed having to
redetermine the amount of child support once Harris was released from incarceration. The trial
court responded that it had no idea what the parties’ circumstances and resources would be once
Harris was released, so that issue would have to be determined at that time. It denied the motion
to amend the order regarding child support. Mackowiak then appealed to the district court.
       Mackowiak argued to the district court that the trial court erred in reducing the child
support because there was insufficient evidence of Harris’s inability to pay and that his child
support should not be reduced where his alleged inability to pay results from being incarcerated
for a crime. Based upon the decision of the Idaho Court of Appeals in Nab v. Nab, 114 Idaho




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512, 757 P.2d 1231 (Ct. App. 1988), the district court affirmed the trial court. Mackowiak then
appealed to this Court.


                                          II. ISSUES ON APPEAL
1. Did the district court err in affirming the trial court’s decision to reduce Harris’s child support
payments to zero because he was incarcerated in the penitentiary?
2. Did the district court err in affirming the trial court’s decision not to have the original child
support award automatically reinstated upon Harris’s release from incarceration?


                                                III. ANALYSIS
         “When reviewing a decision of the district court acting in its appellate capacity, the
Supreme Court directly reviews the district court’s decision.” Reisenauer v. State, Dept. of
Transp., 145 Idaho 948, 949, 188 P.3d 890, 891 (2008).


A. Did the District Court Err in Affirming the Trial Court’s Decision to Reduce Harris’s
Child Support Payments to Zero Because He Was Incarcerated in the Penitentiary?
         The amended judgment entered on January 24, 2005, ordered Harris to pay child support
in the sum of $500 per month and to pay spousal support in the sum of $250 per month for thirty-
six months.1 The judgment also provided that when the spousal support terminated, the child
support would increase automatically to $750 per month. As a result of his subsequent criminal
conduct, Harris was sentenced to serve from three to ten years in prison. On May 8, 2006, Harris
filed a motion asking the trial court “to abate child support until sixty (60) days from
Defendant’s release from the custody of the Idaho Department of Corrections.”
         “Under Idaho Code (I.C.) § 32-709, the child support provisions of a divorce decree may
be modified if a substantial and material change of circumstances has occurred since the last
divorce decree was entered.”2 Rohr v. Rohr, 128 Idaho 137, 141, 911 P.2d 133, 137 (1996). The


1
   The judgment provided that the spousal support would terminate if Mackowiak remarried, sold the community
residence, or lost it through foreclosure.
2
   The first appellate decision in Idaho regarding the modification of the amount of child support was Humbird v.
Humbird, 42 Idaho 29, 243 P. 827 (1926). The statute in effect at that time provided that when a divorce was
granted for the offense of the husband, the court could “compel him to provide for the maintenance of the children . .
. , and to make such suitable allowance to the wife for her support as the court may deem just, having regard to the
circumstances of the parties respectively.” Id. at 37, 243 P. at 829. The statute also provided that “the court may,

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trial court determined that Harris’s incarceration justified reducing his child support obligation to
zero. Mackowiak has appealed that decision, arguing that the trial court abused its discretion in
lowering Harris’s child support obligation to zero during his incarceration. We will not address
that issue because Mackowiak failed to oppose that modification of the amount of child support
in the trial court.
         “[I]t is well accepted that issues not argued before the trial court will not be considered
when raised for the first time on appeal.” Farr v. Mischler, 129 Idaho 201, 205, 923 P.2d 446,
450 (1996). We have held that a party’s failure to object to action by the trial court precludes a
party from challenging that action on appeal. In Kirkman v. Stoker, 134 Idaho 541, 544, 6 P.3d
397, 400 (2000), Kirkman requested a jury trial in his complaint and amended complaint, but the
trial court set the case for a court trial. Kirkman did not raise any objection. Eight months later
during a conference, the trial court stated that it anticipated a two- to three-day court trial, and
Kirkman’s counsel responded, “What do you mean court, not a jury?” The trial court responded,
“Court. It’s been set for a court trial for a considerable period of time.” Kirkman’s counsel
again did not raise any objection, either orally or in writing. When he attempted to raise the
issue on appeal, this Court held, “Kirkman, by failing to object to the setting of a court trial,
failed to bring the issue before the district court and thus did not properly preserve it for appeal.”
Id. In Porter v. Board of Trustees, Preston School Dist. No. 201, 141 Idaho 11, 105 P.3d 671
(2004), the trial court proposed a manner of calculating sick leave benefits wrongfully denied to
part-time bus drivers by the school district. The school district did not object to that manner of
calculating the lost benefits, but then sought to challenge it on appeal. Because the school
district had not objected in the trial court, this Court refused to consider the issue on appeal.
         In the instant case, Mackowiak did not oppose Harris’s motion to reduce his child support
obligation to zero. On May 8, 2006, Harris filed a motion to abate his child support obligation


from time to time, modify its orders in these respects.” Id. Although not using the words, the Humbird Court
apparently applied an abuse-of-discretion standard to the trial court’s actions in increasing both spousal maintenance
and child support based upon a substantial increase in the former husband’s income. Later, in Simpson v. Simpson,
51 Idaho 99, 102, 4 P.2d 345, 346 (1931), the Court adopted the standard that the spousal maintenance and child
support ordered in a divorce decree could be modified only “upon a showing of material, permanent, and substantial
change in the circumstances and conditions of the parties.” In 1980, the Idaho legislature enacted Idaho Code § 32-
709, which provides that spousal maintenance or child support in a divorce decree can be modified “only upon a
showing of a substantial and material change in circumstances.” Ch. 378, § 8, 1980 Idaho Sess. Laws 961, 964. A
showing that the change is also “permanent” is not required.




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until sixty days after his incarceration ended. That motion was set for evidentiary hearing on
July 21, 2006. Mackowiak did not appear at the hearing, nor did she file anything objecting to
the motion. The trial court reduced Harris’s child support obligation to zero, but also required
that either party must file a motion to redetermine child support after Harris’s incarceration
ended. On August 22, 2006, Mackowiak filed a motion to amend the order. She did not seek
amendment of that portion of the order reducing child support to zero. She only sought to amend
that portion of the order requiring either party to file a motion to increase child support after
Harris was released from incarceration. Her counsel’s argument in support of the motion is as
follows:

               MR. BAUER: Okay. Very well. The third issue that was raised in our
       motion to correct is the issue of the – on the child support.
               The original motion by the defendant in this case had sought an abatement
       until sixty days from the defendant’s release from custody.
               The ruling – there isn’t any question about the ruling that – because the
       court did state on the record that it would be abated to zero and that either party
       would then have to re-apply once he was released.
               I guess my concern there is that the original request was for an abatement
       until a specific period, which would imply no need to re-apply but would reinstate
       the original support order after sixty days from his release, which was the
       request, which we did not oppose.
               So my request is based upon – or my motion is based upon the
       inconsistency between the relief granted and what was pled. (Emphasis added.)

       Mackowiak’s counsel specifically stated that he and his client “did not oppose” the
motion to abate child support until sixty days after Harris’s release from incarceration. Because
Mackowiak did not oppose the motion to abate child support, she cannot argue on appeal that the
trial court erred in doing so by reducing the child support to zero.


B. Did the District Court Err in Affirming the Trial Court’s Decision Not to Have the
Original Child Support Award Automatically Reinstated upon Harris’s Release from
Incarceration?
       In her motion to amend the order regarding child support, Mackowiak asked the trial
court to have Harris’s child support obligation automatically return to the prior level once Harris
was released from incarceration. The trial court refused to do so. On appeal, Mackowiak argues
that the trial court abused its discretion because it did not even consider automatically re-

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instating the prior child support award upon Harris’s release and felt constrained to require
Mackowiak to file a motion to redetermine child support upon Harris’s release. In her opening
brief, Mackowiak argued as follows:

               While the Trial Court certainly has discretion to decline such an approach
       [automatic reinstatement of the prior order], there was simply no consideration
       given to the alterative [sic]. The ruling lacks any sign that the Court understood
       the boundaries of its discretion on this issue. The Court’s ruling suggests that it
       felt constrained to require Amber, who will have labored by that time many years
       to support these children without any contribution from their father, to bear the
       legal burden of returning to court yet again. When a court has apparently
       misconstrued the boundaries of its discretion and fails to reach its conclusion
       through an exercise of reason, its decision is flawed and should be vacated, as in
       this instance.

       Determination of whether a trial court abused its discretion involves a three-part test
which asks whether the trial court: “(1) correctly perceived the issue as one of discretion; (2)
acted within the outer boundaries of its discretion and consistently with the legal standards
applicable to the specific choices available to it; and (3) reached its decision by an exercise of
reason.” Sun Valley Potato Growers, Inc. v. Texas Refinery Corp., 139 Idaho 761, 765, 86 P.3d
475, 479 (2004). Mackowiak’s argument that the trial court abused its discretion does not
comport with the facts. When explaining why it would not order the automatic reinstatement of
the prior order upon Harris’s release from incarceration, the trial court stated as follows:
               But I wasn’t going to build in, in this particular case, any assumptions
       about what his earning capacity would be and start a default child support amount.
       I have no idea what the parties’ circumstances and resources will be when that
       day occurs. So I think it’s incumbent upon the parties to move to modify when
       he’s released and capable of working and make a showing of what he’s earning or
       capable of earning at that time.

       By its comments, the trial court obviously knew it had discretion to order automatic
reinstatement of the prior order. It stated it would not do so “in this particular case.” The court
also acted within the boundaries of its discretion and consistently with legal standards. Harris
will serve at least three and up to ten years in prison. Mackowiak has not pointed to any
evidence in the record indicating what the circumstances and financial conditions of the parties
are expected to be upon Harris’s eventual release. The trial court reached its decision by the
exercise of reason. Because of the absence of evidence, the court decided that either party

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should move to modify the child support once Harris is released from prison when there would
be evidence of Harris’s income or earning capacity.3


                                            IV. CONCLUSION
        We affirm the order of the district court affirming the judgment of the trial court. We
award costs on appeal to respondent.


        Justices BURDICK, J. JONES, W. JONES and HORTON CONCUR.




3
 The trial court did not hold, nor do we, that Mackowiak could not move to modify the child support sooner if there
was a substantial and material change in circumstances.



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