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McGriff v. McGriff9/21/2004
ying Shawn's attorney fees on appeal through a one-time payment of $750.00 and followed by $500.00 per month thereafter. Theron then amended his notice of appeal to include the issue of whether the magistrate was correct in granting Shawn attorney fees on appeal.
II. STANDARD OF REVIEW
Decisions regarding child custody are committed to the sound discretion of the magistrate, and the magistrate's decision may be overturned on appeal only for an abuse of discretion. Biggers v. Biggers, 103 Idaho 550, 555, 650 P.2d 692, 697 (1982); Moye v. Moye, 102 Idaho 170, 171, 627 P.2d 799, 800 (1981). An abuse of discretion occurs when the evidence is insufficient to support a magistrate's conclusion that the interests and welfare of the children would be best served by a particular custody award or modification. Appellate courts, however, are not permitted to substitute their own view of the evidence for that of the trial court, nor to make credibility determinations. Brammer v. Brammer, 93 Idaho 671, 674, 471 P.2d 58, 61 (1970). Moreover, in considering findings of fact made by the trial court, the reviewing court must review the evidence in the light most favorable to the party who prevailed at trial.... Pieper v. Pieper, 125 Idaho 667, 669, 873 P.2d 921, 923 (Ct. App. 1994).
III. THE JURISDICTION OF THE MAGISTRATE
The first issue Theron raises on appeal is the jurisdiction of the magistrate to hear the petitions for modification of custody, because the trial court dismissed both petitions in its October 24, 2001, Order for Counseling. Theron maintains that because the trial court dismissed both petitions in that Order, it was without jurisdiction to reinstate them and Shawn was required to refile a petition to modify custody in order for the magistrate to have jurisdiction to consider it. Clearly, the magistrate judge had personal jurisdiction over both parties to this action, so the only issue relates to subject matter jurisdiction. We do not agree with Theron's analysis of the magistrate's authority to act.
The Order for Counseling issued by the magistrate judge was the result of a stipulation by both parties agreeing to the dismissal of their petitions and to attend counseling with Dr. Harper, in an effort to resolve the issues between them. As the record shows, Dr. Harper subsequently wrote to the magistrate in January 2002, stating that counseling had reached an impasse largely due to Theron's refusal to attend joint counseling with Shawn and his presentation of a list of demands which he asserted must be met before he would proceed further with the counseling. As such, the magistrate was faced with a situation where there remained substantial issues in a child custody case that needed to be resolved by the court due to the inability of the parents to settle these issues on their own.
Section 32-717 of the Idaho Code states in part: "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." This statute confers continuing jurisdiction in matters pertaining to child custody. Stockwell v. Stockwell, 116 Idaho 297, 303, 775 P.2d 611, 617 (1989); Ford v. Ford, 108 Idaho 443, 444-45, 700 P.2d 65, 66-67 (1985); Chislett v. Cox, 102 Idaho 295, 298, 629 P.2d 691, 694 (1981). In Idaho, the courts retain jurisdiction, that is the authority to preside over child custody matters, over minor children in divorce and custody proceedings until they reach the age of majority, and consequently there can be no loss of subject matter jurisdiction until the children are no longer subject to the court's
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