               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43836

STEPHANIE ORNDORFF, fka                        )    2016 Unpublished Opinion No. 672
STEPHANIE MARTINEZ,                            )
                                               )    Filed: September 7, 2016
       Petitioner-Respondent,                  )
                                               )    Stephen W. Kenyon, Clerk
v.                                             )
                                               )    THIS IS AN UNPUBLISHED
JOHN PADLO,                                    )    OPINION AND SHALL NOT
                                               )    BE CITED AS AUTHORITY
       Respondent-Appellant.                   )
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Gerald F. Schroeder, District Judge; Hon. Michael Reardon,
       Magistrate.

       Order of the district court on intermediate appeal affirming the magistrate’s
       judgment modifying the child custody, visitation, and child support decree,
       affirmed.

       Legacy Law Group, PLLC; Tessa J. Bennett, Boise, for appellant.

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

GUTIERREZ, Judge
       John Padlo appeals from the district court’s order on intermediate appeal affirming the
magistrate’s judgment modifying the child custody, visitation, and child support decree as
between John Padlo and Stephanie Orndorff. For the reasons set forth below, we affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       John Padlo and Stephanie Orndorff are the parents of twin minor children born in 2009.
The parties were never married, but resided together when the children were born. The parties
later separated, stipulating to the entry of a paternity, child custody, visitation, and support
decree in 2011. This decree established that the parties would share physical custody of the
minor children equally with a weekly rotating schedule.

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       In 2014, Stephanie filed a petition to modify the existing decree on the grounds that there
had been a substantial, material change in circumstances since the latest decree.           Upon
Stephanie’s motion, the court ordered a parenting time evaluation and appointed Dr. Ward as the
evaluator. The parties received copies of Dr. Ward’s completed evaluation, which recommended
that Stephanie have primary physical custody of the minor children.         During a subsequent
pretrial conference, the court vacated the upcoming trial date. John then hired a different
evaluator, Dr. Watts, to conduct a second parenting time evaluation.          Stephanie did not
participate in that evaluation. John then submitted Dr. Watts’s evaluation to the court for its
consideration.
       During a preliminary hearing just before trial, John objected to the admissibility of
Dr. Ward’s oral testimony and written report on the grounds that it did not comply with Rule 719
of the Idaho Rules of Family Law Procedure. The magistrate found that the rule did not require
the report’s exclusion at that point. The magistrate then held a trial on the pending motion to
modify the decree. During trial, Stephanie called Dr. Ward to testify regarding his evaluation.
As Dr. Ward was about to testify as to his recommendation regarding a custody schedule for the
minor children, John objected on foundational grounds. He argued that Dr. Ward failed to
address the factors in Idaho Code § 32-717, as required by Rule 719. He specifically argued that
in conducting his evaluation, Dr. Ward improperly failed to consider the relationship between
John’s fiancée Paulina’s children and the minor children.1        The magistrate sustained the
objection, allowing Stephanie to lay additional foundation regarding Dr. Ward’s consideration of
the appropriate factors. Stephanie then asked for Dr. Ward’s opinion on a custody schedule that
would be in the best interests of the minor children and, without any objection from John,
Dr. Ward opined that Stephanie should have primary physical custody.
       John then called his expert witness, Dr. Watts, to testify. Dr. Watts stated that he was
informed Stephanie would not be participating in Dr. Watts’s evaluation, to which John offered




1
        John and Paulina live together in a home with Paulina’s children, who spend every
weekend with their father at his home. John testified that if he was limited to weekend visitation
with the minor children, their relationship with Paulina’s children would be adversely affected by
significantly limiting their ability to see one another.


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Exhibit I to the magistrate as evidence of Stephanie’s refusal.2         Stephanie objected to the
relevance of Exhibit I and the magistrate sustained the objection. Dr. Watts also acknowledged
the effect of having only one party participate in his evaluation, stating that he would be unable
to make a general custody recommendation that would involve the nonparticipating party. The
court thereafter constrained Dr. Watts’s testimony, allowing him to opine regarding Dr. Ward’s
analysis, but prohibiting him from expressing his custody recommendation.
       In rendering its decision, the magistrate first found that there had been a substantial and
material change in circumstance since the entry of the last decree. 3          The magistrate then
considered the best interests of the minor children, pursuant to the factors enumerated in Idaho
Code § 32-717. The court acknowledged John’s concerns regarding the relationship between the
minor children and Paulina’s children, stating: “While I appreciate that there is a relationship
that bears some earmarks of a familial relationship, what is in [Paulina’s children’s] best interests
are not in front of me. That--that’s not one of my consideration[s]. I am focused strictly on [the
minor children].” After considering all of the factors, the magistrate found it was more likely
than not in the minor children’s best interests to be primarily in Stephanie’s care.
       The magistrate modified the prior child custody and support decree, awarding primary
physical custody of the minor children to Stephanie. John appealed to the district court, which
affirmed the magistrate. John timely appeals to this Court.
                                                 II.
                                            ANALYSIS
       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.3d 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

2
       This exhibit was purportedly a series of email exchanges between opposing counsel;
however it was never admitted at trial, was not included in the record to the district court on
intermediate appeal, and is not in the record on appeal before this Court.
3
       This finding is not at issue.
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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 decision of the district court. Id.
       Modification of a child custody determination on the basis 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. Brownson v. Allen, 134 Idaho 60, 63, 995 P.2d
830, 833 (2000). 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 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).
A.     Admissibility of Dr. Ward’s Parenting Time Evaluation
       John first argues the district court erred in affirming the magistrate’s admission of
Dr. Ward’s oral testimony and written report regarding his parenting time evaluation. The
magistrate considered this evaluation in deciding the custody arrangement for the minor children.
John asserts the magistrate abused its discretion by admitting the evaluation because Dr. Ward
did not comply with the requirements of Rule 719. John specifically argues that in conducting
his evaluation, Dr. Ward should have interviewed and observed Paulina and her children. John
contends that because Paulina’s children are an integral part of the minor children’s home life,
living in the same home together during the weekdays, the evaluator, in forming his opinion, was
required to consider Paulina’s children’s relationship with the minor children.
       As a preliminary matter, Stephanie argues the district court erred in finding the issue
preserved for appellate consideration. Assuming, without deciding, that the issue was preserved,
we conclude the evaluation was properly admitted for consideration by the magistrate.
       The Idaho Rules of Family Law Procedure authorize the trial court to appoint a parenting
time evaluator to “provide the Court with information it may consider to make decisions
regarding custody and parenting time arrangements that are in the child’s best interest.”
I.R.F.L.P. 719(A). Parenting time evaluations that are prepared according to the requirements
set forth in Rule 719 are admissible, subject to cross-examination. I.R.F.L.P. 719(I). “The court
may consider the information contained in the report in making a decision on the parenting plan,

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and the Idaho Rules of Evidence do not exclude the report from consideration.”
I.R.F.L.P. 719(I).
        John contends that Dr. Ward’s evaluation did not conform with Rule 719 because
Dr. Ward did not interview, observe, or consider Paulina’s children in the evaluation. He argues
that the evaluator’s nonconformance rendered the report inadmissible.          John points to the
language of Rule 719(F) and I.C. § 32-717 to support his claim.
        Rule 719(F)(2)(c) requires the evaluator to observe and consider each minor child’s
“quality of attachment to each parent and that parent’s social environment” by “conducting age-
appropriate interviews and observation of the child or children with each parent, stepparent(s),
step-   and   half-siblings   conjointly,   separately,   or   both   conjointly and   separately.”
Rule 719(F)(3)(d) requires the evaluator to “address each factor set forth in Idaho Code
Section 32-717.” John points specifically to subsections (c) and (d) of Section 32-717, which
provide:
        (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:
               ....
               (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.
        John contends that although Paulina’s children were not stepsiblings at the time of the
evaluation, they were nonetheless improperly excluded from consideration because they were
part of the minor children’s home environment with John, as both the minor children and
Paulina’s children lived in John’s home on weekdays. He argues that Dr. Ward “wholly failed to
observe the minor children’s actual home environment” by “ignoring everyone in the home, with
the exception of John.”
        John’s arguments seemingly urge this Court to hold that the requirements of Rule 719(F)
and I.C. § 32-717, taken together, require a parenting time evaluator to consider all individuals
residing in a parent’s home. While we agree that it is beneficial for an evaluator to consider as
much relevant information as possible in completing a parenting time evaluation, we cannot say
that Dr. Ward erred by not specifically considering Paulina’s children, either through interview
or observation. Nowhere in the statutory language is an evaluator required to consider, observe,
or interview other individuals that may be residing in a parent’s home.            Such a broad
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interpretation of the rule and statute would provide grounds to invalidate an evaluation based
upon an evaluator’s objective assessment of which individuals are relevant to the trial court’s
custody consideration. However, the purpose of an evaluation is to guide the trial court in
making a custody determination, not to provide the sole source of information for the trial court’s
consideration. Therefore, we cannot say it was error for the evaluator to omit consideration of
Paulina’s children.
       Moreover, to the extent John argues that Dr. Ward’s evaluation was otherwise deficient
under the rule and statute, we disagree with John’s assessment. During trial, Dr. Ward stated that
he observed each parent with the minor children during sessions at the office, at a park, and at
each parent’s respective home.      Dr. Ward also testified that both parties were given an
opportunity to present any additional information they wanted Dr. Ward to consider in
completing the evaluation. He even left it up to the parties to decide who they wanted to have at
their homes during the scheduled home visit. Regarding the amount of information he gathered,
Dr. Ward testified:
       I felt like I had plenty of opportunity to get to know the concerns of both parents.
       Neither--and plenty of time to observe parent/child interactions. So, all that I felt
       very complete. I reviewed all the documents that were provided.
                The--neither--neither parent expressed any con--significant concerns about
       the--the either the fiancée or the step-parent. So, I didn’t interview them
       individually, I didn’t perform any psychological testing on them.
                The interactions I observed between the--the--Paulina and the children
       was--were positive, same thing with [Stephanie’s husband]. So, I didn’t have any
       concerns there.
       The testimony offered by Dr. Ward evidences his consideration of the minor children’s
quality of attachment to each parent and adjustment to the home environments, as required by
Rule 719 and I.C. § 32-717. Thus, there is substantial and competent evidence in the record to
support the magistrate’s finding that Dr. Ward complied with the requirements of Rule 719 such
that the evaluation was admissible per Rule 719(I). Therefore, the district court did not err in
affirming the magistrate’s admission of Dr. Ward’s parenting time evaluation.
B.     Admissibility of Dr. Watts’s Testimony
       We next turn to John’s argument that the district court erred in affirming the magistrate’s
exclusion of Dr. Watts’s opinion regarding the best interests of the minor children and
Dr. Watts’s custody recommendations. The trial court has broad discretion in determining the
admissibility of testimonial evidence. A decision to admit or deny such evidence will not be

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disturbed on appeal absent a clear showing of abuse of that discretion. Mac Tools, Inc. v. Griffin,
126 Idaho 193, 199, 879 P.2d 1126, 1132 (1994).
       During trial, the magistrate did not allow Dr. Watts to opine on the ultimate issue in the
case--the best interests of the minor children. The magistrate stated as follows:
               I’m--I’m not going to allow you, Dr. Watts, to talk about best interests of
       the children based upon your experience of Mr. Padlo. It--it--it falls short of the
       standards required in order to render that decision when you don’t have, as you’ve
       pointed out, an opportunity to visit with both sides.
               So, you’re free to comment on methodology that Dr. Ward used, from a
       general perspective. You’re--you’re not free to apply your personal experience
       with one side to the conclusions that he’s made, having had the opportunity to
       review both sides.
       In John’s briefing, he appears to contend exclusively that the magistrate’s improper
exclusion of evidence regarding Stephanie’s refusal to participate in Dr. Watts’s evaluation
formed the basis for the magistrate’s subsequent exclusion of Dr. Watts’s testimonial evidence.
However, for this argument to carry any persuasive value, John must first show that Stephanie
was required to participate in the evaluation.
       Regarding Stephanie’s participation in the evaluation, ordinarily, when a court orders the
completion of a parenting time evaluation, both parties are expected to cooperate with the
evaluator’s requests. See I.R.F.L.P. 719(E)(2)(b) and (d). However, we are unaware of any
similar provision requiring that a party cooperate with an evaluator in the absence of a court
order. Notably absent from the record is any evidence that the court ever authorized a second
parenting time evaluation to be conducted by Dr. Watts. In fact, the record contradicts this
assertion, as there is only one “Order for Parenting Time Evaluation.” John contends this second
evaluation was discussed and agreed to by the parties in chambers. Unfortunately, the record
does not include a transcript of conferences held in chambers or any other mention of the alleged
agreement or purported order. Absent evidence that the evaluation by Dr. Watts was court-
ordered pursuant to Rule 719, Stephanie was not required to participate in Dr. Watts’s
evaluation. See Powell v. Sellers, 130 Idaho 122, 127, 937 P.2d 434, 439 (Ct. App. 1997).
       Moreover, John does not provide this Court with argument or authority to support
holding that the magistrate was nonetheless required to admit and consider Dr. Watts’s opinion
where only one party to the action participated in the evaluation. Therefore, in the absence of
argument or authority, we decline to consider this issue further on appeal. See Bach v. Bagley,
148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010).
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C.     Admissibility of Evidence of Stephanie’s Refusal to Participate
       John next argues the district court erred in affirming the magistrate’s exclusion of
evidence regarding Stephanie’s failure to participate in Dr. Watts’s evaluation. The district court
sustained Stephanie’s relevancy objection. As an initial matter, we note that, as discussed above,
absent a court order, Stephanie was not required to participate in a second parenting time
evaluation.   Therefore, there was no error in the district court’s finding that evidence of
Stephanie’s refusal to participate is not relevant for the purpose of showing that the incomplete
evaluation should nonetheless be admissible.
       Moreover, upon review of the record, there is no indication that John challenged the
magistrate’s exclusion of Exhibit I to the district court on intermediate appeal. In his notice of
appeal to the district court, John presented the issue as “whether the court erred or abused its
discretion in denying the admission of evidence that Petitioner refused to participate in a custody
evaluation ordered or allowed by the court.” Neither party’s appellate briefs in the district court
are included in the record on appeal. Also absent from the record is the transcript of the
appellate oral argument before the district court. Although the district court’s opinion references
the admissibility of Dr. Watts’s trial testimony regarding a conversation between Dr. Watts and
John’s attorney, the district court never mentions Exhibit I or any other email exchange between
attorneys.
       It is the responsibility of the appellant to provide a sufficient record to substantiate his or
her claims on appeal. Powell, 130 Idaho at 127, 937 P.2d at 439. In the absence of an adequate
record on appeal to support the appellant’s claims, we will not presume error. Id. Based on the
record before us, we cannot say that the issue of the admissibility of Exhibit I was ever presented
to the district court. An issue not presented to the district court in an intermediate appeal will not
be decided by a higher court. Barmore v. Perrone, 145 Idaho 340, 344, 179 P.3d 303, 307
(2008). Absent any evidence that the issue of the admissibility of Exhibit I was presented to the
district court, we will not presume that the district court erred by not considering this issue
specifically. Therefore, because the admissibility of Exhibit I was not raised below, we decline
to consider it for the first time on appeal to this Court. See Sadid v. Idaho State Univer., 151
Idaho 932, 941, 265 P.3d 1144, 1153 (2011).




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D.       Award of Primary Physical Custody to Stephanie
         Finally, John argues the district court erred in affirming the magistrate’s award of
primary physical custody to Stephanie. John maintains that because the magistrate erred by not
considering Exhibit I and the opinion testimony of Dr. Watts, the award of primary physical
custody to Stephanie was an abuse of discretion because the magistrate did not consider all of the
available evidence. However, as discussed in the preceding sections, there was no error in the
exclusion of Exhibit I or in the exclusion of Dr. Watts’s testimony. Because the exclusion of this
evidence is the sole basis for John’s assignment of error, and because there was no error, we end
our inquiry into whether the magistrate abused its discretion in awarding primary physical
custody to Stephanie. See Stewart v. Sun Valley Co., 140 Idaho 381, 384, 94 P.3d 686, 689
(2004) (holding it is not the duty of the Court to search the record for error). Thus, we conclude
the district court did not err in affirming the magistrate’s custody determination.
E.       Attorney Fees and Costs on Appeal
         As the prevailing party on appeal, Stephanie is awarded costs. Both parties also request
attorney fees. John requests attorney fees pursuant to I.C. §§ 12-121 and 12-123. However,
John is not entitled to attorney fees on appeal because he is not the prevailing party. See I.C.
§ 12-121; Lamont v. Lamont, 158 Idaho 353, 362, 347 P.3d 645, 654 (2015).
         Stephanie requests attorney fees pursuant to I.C. § 12-121. Under I.C. § 12-121, a
prevailing party can recover attorney fees if the claim was brought, pursued, or defended
frivolously, unreasonably, or without foundation. Page v. Pasquali, 150 Idaho 150, 153, 244
P.3d 1236, 1239 (2010). A claim is not frivolous or lacking merit simply because it ultimately
fails.   Edwards v. Donart, 116 Idaho 687, 688, 788 P.2d 809, 810 (1989).             We decline
Stephanie’s request for attorney’s fees because John’s arguments were not frivolous,
unreasonable, or without foundation.
                                                III.
                                         CONCLUSION
         John has not shown that the magistrate erred in considering Dr. Ward’s evaluation, nor
has he shown that the magistrate erred in excluding evidence of Dr. Watts’s opinion testimony.
Further, John has not shown an abuse of discretion in the magistrate’s award of primary custody
to Stephanie. Therefore, we affirm the district court’s affirmance of the magistrate’s judgment



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modifying the decree of custody, visitation, and child support as between John and Stephanie.
Stephanie is awarded costs.
       Chief Judge MELANSON and Judge GRATTON CONCUR.




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