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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 37034

KRISTINA DRINKALL,

Plaintiff-Respondent,

v.

DARREN DRINKALL,

Defendant-Appellant.

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2011 Opinion No. 7

Filed: March 2, 2011

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Cheri C. Copsey, District Judge; Hon. Terry R. McDaniel, 

Magistrate.

District court’s intermediate appellate decision affirming the magistrate’s order 

modifying child support and denying petition to modify custody, affirmed in part, 

reversed in part, and case remanded.

Darren Drinkall, Meridian, pro se appellant. 

Cosho Humprey, LLP; Franki J. Hargrave, Boise, for respondent. 

________________________________________________

GUTIERREZ, Judge 

Darren Drinkall appeals from the district court’s intermediate appellate decision

affirming the magistrate’s final order modifying child support and denying Darren’s request to 

modify custody. For the reasons set forth below, we affirm in part, reverse in part, and remand.

I.

FACTS AND PROCEDURE

Darren and Kristina were married in 1995 and three children were born of the marriage. 

Darren and Kristina divorced in 2001. Pursuant to the December 2001 decree of divorce, 

Kristina was awarded “primary physical custody”1 of the children, Darren was granted

 

1 Idaho Code § 32-717B provides a presumption that joint custody, both physical and legal, 

is in the best interests of a minor child. Because “joint physical custody” does not require that a 

child spend an equal period of time with both parents, see I.C. § 32-717B(2), the non-statutory 
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“visitation” and was required to pay $1,122 per month in child support. At that time both Darren 

and Kristina resided in Ada County, Idaho.

A few months later, the magistrate allowed Kristina to move with the children to Buhl, 

Idaho, located approximately one hundred miles from Ada County. In September 2002, Darren 

filed a petition to modify child support and the custody schedule seeking, with regard to the 

latter, more time with his children primarily during the summer months. By order filed on 

July 3, 2003, the magistrate determined, among other things, that Darren would have time with 

the children in Buhl for one four-hour period per week and, in Ada County, on alternating 

holidays, the first and third full weekends of every month, and during the summer months (June, 

July and August) for three nonconsecutive one-week periods to coincide with Darren’s vacation 

from work. The magistrate further reduced Darren’s child support to $954.50 per month.

In December 2007, Darren filed a pro se petition to again modify child support and the 

custody schedule. He sought recalculation of child support “in an amount consistent with the 

Idaho Child Support Guidelines,” and further requested additional time with the children during 

the summer months. By his petition, Darren sought modification to allow the children to stay 

with him in Ada County for the entirety of the months of June, July, and August, with Kathleen 

to have the children every other weekend and for a two-week time period to be determined by 

the court. His reasons for this proposed modification were that since the last custody 

modification was entered the children were now five years older, Kristina was no longer a fulltime mother but had now begun working full-time, and he had taken a new job where he had

arranged to take off the entire months of July and August from work.

At the modification hearing, Kristina argued that for child support purposes, her income 

should be set at $38,000 per year and that Darren’s income should be set at $63,200, representing 

his current $50,000 salary and $13,200 per year anticipated rental income from a woman that 

lived with him. The magistrate set Kristina’s income at $38,000 per year and specifically stated 

that he would not include as part of her gross income a $1,000 bonus she received earlier in 2008 

 

term “primary physical custody” has evolved to refer to the parent who has custody and care of 

the child the greater amount of time. See King v. King, 137 Idaho 438, 445 n.5, 50 P.3d 453, 460 

n.5 (2002). Similarly, the parent who has physical custody the lesser amount of time is 

sometimes referred to as having “visitation,” a term which we sometimes employ here although 

the more precise term would likely be “secondary physical custody.” 
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because Darren had failed to produce any evidence that was a payment that Kristina could expect 

on a consistent basis in the future. The magistrate set Darren’s income at $63,200, specifically 

ruling that Darren was receiving $1,100 per month in rental income and that Darren’s testimony 

that the woman currently paying rent was in the process of moving out lacked credibility. With 

respect to the custody issue, the magistrate held that Darren had failed to establish that a material 

change in circumstances had occurred from those in existence at the time of the most recent 

custody order and that Darren had failed to produce any evidence that his proposed change in the 

summer visitation schedule was in the best interests of the children.

Darren appealed to the district court. The district court affirmed, indicating that to the 

extent Darren presented issues preserved for appeal, he merely invited the district court to second 

guess the magistrate on issues of fact. As a result and pursuant to her request, the district court 

awarded Kristina Idaho Code Section 12-121 attorney fees, finding that the appeal was brought 

unreasonably and without foundation. Darren appeals to this Court from the district court’s 

intermediate appellate decision.

II.

STANDARDS OF REVIEW

When reviewing a decision of the district court acting in its appellate capacity, this Court 

directly reviews the district court’s decision. Mackowiak v. Harris, 146 Idaho 864, 865, 204 

P.3d 504, 505 (2009). If substantial and competent evidence supports the magistrate’s findings 

of fact, and the magistrate’s conclusions of law follow from those findings, and if the district 

court affirms the magistrate, we affirm the district court’s decision as a matter of procedure. 

Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008).

The decision of the trial court on a motion to modify child support or custody is reviewed 

on appeal for an abuse of discretion. Danti v. Danti, 146 Idaho 929, 934, 204 P.3d 1140, 1145 

(2009); Hopper v. Hopper, 144 Idaho 624, 626, 167 P.3d 761, 763 (2007); Noble v. Fisher, 126 

Idaho 885, 888, 894 P.2d 118, 121 (1995); Kornfield v. Kornfield, 134 Idaho 383, 385, 3 P.3d 61, 

63 (Ct. App. 2000); Atkinson v. Atkinson, 124 Idaho 23, 25, 855 P.2d 484, 486 (Ct. App. 1993). 

In matters of discretion, we examine (1) whether the trial court correctly perceived this issue as 

one of discretion; (2) whether the trial court acted within the outer boundaries of its discretion 

and consistently with the applicable legal standards; and (3) whether the trial court reached its 

decision by an exercise of reason. Hopper, 144 Idaho at 626, 167 P.3d at 763; Sun Valley 
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Shopping Center, Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991). An 

abuse of discretion will be found if the magistrate failed to give consideration to relevant factual 

circumstances, Rohr v. Rohr, 128 Idaho 137, 141, 911 P.2d 133, 137 (1996); Yost v. Yost, 112 

Idaho 677, 680, 735 P.2d 988, 991 (1987); Margairaz v. Siegel, 137 Idaho 556, 558, 50 P.3d 

1051, 1053 (Ct. App. 2002), or if the magistrate’s findings are not supported by the evidence. 

Biggers v. Biggers, 103 Idaho 550, 555, 650 P.2d 692, 697 (1982); Rohr v. Rohr, 126 Idaho 1, 3, 

878 P.2d 175, 177 (Ct. App. 1994).

The party seeking custody modification has the burden of justifying a request for a 

change in custody. Brownson v. Allen, 134 Idaho 60, 63, 995 P.2d 830, 833 (2000). In 

determining whether to grant a custody modification, “the paramount concern is the best interest 

of the child.” Id.

III.

ANALYSIS

A. Child Support

1. Darren’s income

Darren argues that the magistrate erred in computing his income for child support 

purposes in two ways. First, he asserts that the magistrate erred by not characterizing the $1,100 

per month he received from the woman living with him as a contribution to living expenses 

excludable from gross income for child support purposes. He bases his argument on a portion of 

his trial testimony where he described this payment as a “sharing of the bills.” However, in other 

testimony Darren said that he had rented “part of his home” to the woman, agreed that the $1,100 

monthly payment was for “rent,” and that he had been receiving these monthly payments since 

January of 2008. As the party challenging the child support award in this appeal, Darren bears 

the burden of establishing error. Olson v. Montoya, 147 Idaho 833, 837, 215 P.3d 553, 557 (Ct. 

App. 2009).

Child support calculations are based on the parties’ “gross incomes” which, as a starting 

premise, “includes income from any source.” Idaho Child Support Guideline (I.C.S.G.) 6(a)(1).2

“Rent” is specifically identified as included in “gross income.” I.C.S.G. 6(a)(2). Under 

I.C.S.G. 6(a)(4), a “contribution to living expenses” is excludable as income for child support 

 

2 The Guidelines are found under Idaho Rule of Civil Procedure 6(c)(6).
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purposes unless the trial court finds “compelling reasons” to include it. See Kornfield, 134 Idaho 

at 386, 3 P.3d at 64.

The district court ruled that Darren had failed to assert before the magistrate that the 

monthly payments should have been treated as an excludable contribution to living expenses;

and that even if he had, the magistrate’s finding that these payments were for rent, and therefore 

includable as income to Darren, was based on substantial and competent evidence. The district 

court need have gone no further than its first ruling. At the magistrate level, Darren did not make 

any argument that, in his view, this payment was a contribution to living expenses excludible 

from his gross income and the magistrate did not address the issue of his own accord.3

 As far as 

the record submitted to this Court reflects, the first time Darren mentioned the possible 

application of I.C.S.G. 6(a)(4) to his circumstance was in his appellate brief submitted to the 

district court. Issues may not be raised for the first time on appeal, Crowley v. Critchfield, 145 

Idaho 509, 512, 181 P.3d 435, 438 (2007), and “[a]ppellate court review is limited to the 

evidence, theories and arguments that were presented below.” Nelson v. Nelson, 144 Idaho 710, 

714, 170 P.3d 375, 379 (2007). Because Darren did not raise this issue before the magistrate, we 

do not address it. 

Darren also argues, in the alternative, that the magistrate erred in not accepting his

“uncontradicted,” “credible,” and “not inherently improbable” testimony that these payments 

would not be received in the future because the woman was in the process of moving out. 

Darren’s argument is based on the unstated premise that, while evidence of past gross income is 

highly relevant, the focus in establishing income for child support should be the amount of gross 

income the parent will earn from the child support award forward in time. See generally Olson, 

147 Idaho at 835, 215 P.3d at 555 (magistrate accepted father’s evidence that because of changed 

business circumstances his anticipated income was significantly reduced from the year before 

and determined father’s gross income for child support purposes on that basis). We have no 

quarrel with this logical presumption as, for example, it would make little sense for a magistrate

to determine the amount of child support solely on a parent’s prior year income where it is 

established that the parent is no longer employed.

 

3 After Darren received the magistrate’s written judgment, Darren did not avail himself of 

the opportunity to file an Idaho Rule of Civil Procedure 59(e) motion to alter or amend the 

judgment to comport with his view of what the trial facts showed.
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This being said, Darren cites Dinneen v. Finch, 100 Idaho 620, 626-27, 603 P.2d 575, 

581-82 (1979), for the proposition that “a trier of fact may not arbitrarily or capriciously 

disregard the uncontradicted testimony of a credible witness” and asserts that he is one of those 

witnesses. However, this general rule of law has little application here. We hold that the district 

court did not err by ruling that the magistrate neither arbitrarily nor capriciously disregarded 

Darren’s testimony. Inherently, the magistrate recognized that Darren had an “iron in the fire” as 

a party in the action with the amount of his child support obligation hanging in the balance. 

Moreover, Darren’s trial testimony was that when the woman found out that Kristina planned to 

assert that these payments should be treated as income to Darren for child support purposes, she

“said there was no way she was going to allow that to happen,” and began to move out “probably 

two days ago” and “is still in the process of it.” The magistrate specifically found that in these 

circumstances, Darren’s testimony lacked credibility. In the absence of a clear abuse of 

discretion we will not substitute our view of the evidence for that of the trial court, particularly 

with regard to the credibility of witnesses. Silva v. Silva, 142 Idaho 900, 904, 136 P.3d 371, 375 

(Ct. App. 2006). Darren has failed to show the magistrate erred in computing his income for 

child support purposes. 

2. Kristina’s income

Darren elicited from Kristina on direct examination that her current salary was

“approximately $38,000” and Kristina offered that she had received a 2008 bonus of “roughly” 

$1,000. Kristina asserted that her gross income for child support purposes should be set at 

$38,000. The magistrate held that in order to include Kristina’s bonus as part of her gross 

income, Darren would have had to establish that this bonus was an expected part of her income 

on a yearly basis, which Darren failed to do. The magistrate set Kristina’s income at $38,000.

Darren now claims error. He points out that Kristina’s 2007 W-2 reflected, in the 

summary section, “gross pay” of $38,410.49. He further points out that “bonuses” are included 

as part of gross income under I.C.S.G. 6(a)(1)(i). However, there is no evidence that Kristina 

would receive a thousand dollar bonus annually. The only testimony presented was that 

Kristina’s employer changed its incentive plan for the year 2008.

As the party challenging the child support award in this appeal, Darren bears the burden 

of establishing error. Olson, 147 Idaho at 837, 215 P.3d at 557. We find no error in the 

magistrate’s determination that Kristina’s gross income for child support purposes should be 
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determined based upon her expected future income and that that amount, based on the evidence, 

was $38,000. 

B. Custody Visitation Schedule

Darren further argues that the magistrate abused his discretion in denying Darren’s 

motion to modify the custody schedule. Under the amended decree in effect at the time these 

modification proceedings were brought, the parties shared joint physical custody of the children. 

Kristina continued to have “primary physical custody” of the children in Buhl and Darren had 

time with the children in Buhl for one four-hour period per week and, in Ada County, on 

alternating holidays, on the first and third full weekends of every month, and during the summer 

months (June, July and August) for three nonconsecutive one-week periods to coincide with 

Darren’s vacation from work. By his current petition, Darren sought a change in custody during 

the summer months. Darren requested that the children stay with him in Ada County for the 

entirety of June, July, and August, with Kathleen to have the children in Buhl every other 

weekend and for a court-determined two-week time period.

The magistrate determined that Darren failed to establish a material change in 

circumstances and that he failed to present any evidence that the best interests of the children 

warranted a change in the current schedule. Specifically, the magistrate held:

Now, with regards to the change of visitation, [Mr. Drinkall], you have not

shown a material change of circumstance. When [the prior magistrate’s] order 

was entered it is acknowledged that children are going to get older. There is no 

question about it. What you have to do is you have to be able to show that any 

changes that you wish to have made here are in the best interest of the children. 

You haven’t presented any evidence concerning what is in the best interest of the 

children.

You have presented what are your wishes. You present what are her 

wishes, not what is best for the children. And so I don’t have any psychologist. I 

don’t have any doctors. I don’t have any teachers. I don’t have anyone who is 

going to say it is best for these children to have additional time.

The magistrate concluded:

And so there has not been a material change of circumstances that would require 

me to find that it is in the best interest of the children to make a change. From 

your own testimony and from her testimony and from your mother’s testimony it 

is indicated that the children are well adjusted, are happy, they get along fine, they 

are doing well in school. There is no reason to change it. If it ain’t broke we are 

not going to fix it.
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Now, if the children weren’t doing well in school and that type of thing, 

that is something that I can, you know, wrap my hands around. But right now the 

only thing that is happening here is what you want and not what is best for the 

children. And I haven’t received any evidence on what is best for the children. It 

may be out there, but you didn’t present it.

So based on that there has been no material change in circumstance with 

regards to the custody [sic] is concerned, and therefore I will dismiss your petition 

concerning the visitation and custody.

1. Darren established a material change in circumstances

At the custody modification hearing, Darren specifically referred to the fact that 

previously the ages of the children had been relied upon to limit his summer time with the 

children and that since the last order modifying the custody arrangement was entered the children 

were now five years older. He also pointed out that, unlike the circumstances in place at the 

entry of the most recent custody order, Kristina was no longer a full-time mother but had now 

begun working full-time and that he had taken a new job where he had arranged to take off the 

entire months of July and August from work. The magistrate, however, concluded that no 

material change in circumstances had been shown. The record and applicable law does not 

support the magistrate’s determination that no material change in circumstances has been shown. 

In his order filed on July 3, 2003, the prior magistrate addressed Darren’s request for “as 

much time with the children during the summer as he can get.” The order stated that at that time 

the children were four, three and two years-of-age, Kristina had recently moved with the children 

from Ada County to Buhl, Idaho, more than one hundred miles away from Darren’s residence, 

Kristina was not employed, and Darren was employed full-time. In limiting Darren’s summer 

time with the children in Ada County to three one-week periods to coincide with Darren’s 

vacation, the former magistrate expressed his reasoning stating:

Because of the distance that separates the parties, a visitation schedule that 

is customized for each of the children, particularly [N] (who is only two years 

old) is no longer practical. Darren’s visitation periods must involve all of the 

children at once. Therefore, in determining a visitation schedule that is in all of 

the children’s best interests, the court attempted to pay particular attention to 

[N]’s needs, which require more consistent attention than do the needs of [C], 

who is going to be five years old soon. Developmentally, it is the court’s 

experience that two-year old children are less independent and secure than fiveyear old children who can, in general, adapt to greater changes in their physical 

environment and to more time apart from a primary caregiver. This is not to say 

that the Drinkall children are unfamiliar with Darren’s home; on the contrary, 

they have visited him at that home frequently for at least the past year and a half. 
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All of the children are still sufficiently young that they require constant 

supervision and attention for both their welfare and safety.

Darren’s work schedule and living arrangements do not lend themselves to 

large blocks of time to supervise three young children nor is the court comfortable 

with delegating parental duties to Darren’s girlfriend. Consequently, it is in the 

best interests of the children that the block of summer time and holiday visitation 

be consistent with the amount of vacation time Darren has available each year to 

have the children.

Thus, each of Darren’s trial assertions of material changes in circumstances since the 

entry of the most recent custody order were clearly supported by the record. The magistrate’s 

conclusion otherwise is not supported by the record, is clearly erroneous and was an abuse of 

discretion.

2. Evidence concerning the best interests of the children was presented

Darren also contends that the magistrate erred in his determination that Darren failed to 

present “any evidence concerning what is in the best interest of the children.”

Our Supreme Court has held that:

[I.C. § 32-717] gives trial courts wide discretion in making custody 

determinations, but it requires them to consider all relevant factors when 

evaluating the best interest of the child. Id.; see also [Hoskinson v. Hoskinson, 

139 Idaho 448, 455, 80 P.3d 1049, 1056 (2003)]. Relevant factors may include 

the parents’ wishes for the child’s custody; the child’s wishes; the 

interrelationship and interaction of the child with his or her parents and siblings; 

the extent the child has adjusted to his or her school, home, and community; the 

circumstances and character of the persons involved; the need to promote 

continuity and stability in the child’s life; and domestic violence. I.C. § 32-

717(1)(a)-(g). This list of factors is not exhaustive or mandatory and courts are 

free to consider other factors that may be relevant. Nelson v. Nelson, 144 Idaho 

710, 715, 170 P.3d 375, 380 (2007). Courts must, however, take into account 

Idaho’s presumption that it is in the child’s best interest to maintain frequent and 

continuing contact with both parents, unless one parent is an habitual perpetrator 

of domestic violence. I.C. § 32-717B. Id. See also, §§ 32-1007, 18-4506; 

Hopper v. Hopper, 144 Idaho 624, 627, 167 P.3d 761, 764 (2007).

Bartosz v. Jones, 146 Idaho 449, 454, 197 P.3d 310, 315 (2008).

The magistrate’s reasoning that no “best interest” evidence had been presented does not 

withstand scrutiny. First, the magistrate erred in applying artificial legal barriers to the 

determination at hand. Idaho law does not require the testimony of a psychologist, a doctor, a 

teacher or any other particular witness in order to establish that a change in the shared custody 

schedule would be in the best interest of a child. Neither is there a requirement under Idaho law 
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that a child behave badly in the current custody arrangement before a change in visitation in the 

best interest of the child is warranted. Moreover, the magistrate erred by ruling that the wishes 

of the parents regarding custody were not relevant to a best interest determination. Indeed, the 

wishes of the parents are a specific statutory factor to be considered in determining the best 

interest of a child regarding custody. See I.C. § 32-717(1)(a). Finally, the record supports 

Darren’s contention that he presented evidence of the interrelationship and interaction of the 

children with the parents and the children’s adjustments in the respective homes, both additional 

statutorily identified factors. See I.C. § 32-717(1)(c) and (d). For these reasons, we remand to 

the magistrate for reconsideration.

We make clear for purposes of remand that we are not holding that Darren is entitled to 

any or all of the additional summer time he requested. This determination should be made in 

light of the current circumstances of the parties and the children which may have changed since 

September of 2008. In reaching the custody determination, the magistrate should take into 

account Idaho’s statutory policy that joint physical custody should be shared in such a way to 

ensure that a child maintain frequent and continuing contact with both parents. I.C. § 32-

717B(2). In this light and with regard to the evidence presented, it is for the magistrate on 

remand to determine whether the children’s best interests would be served by spending more 

time living with their father during the summer months and, if so, how much time that should be. 

Finally, it is recognized that child custody issues need not always be litigated and that 

“[c]ooperating divorced parents can achieve far more for their children than might flow from 

even the best thought-out orders of the courts.” Nelson, 144 Idaho at 717, 170 P.3d at 382

(quoting Hawkins v. Hawkins, 99 Idaho 785, 790, 589 P.2d 532, 537 (1978)).

C. Attorney Fees

Both parties seek attorney fees on appeal under I.C. § 12-121. Attorney fees may be 

awarded under this statute if an appeal is brought or defended frivolously, unreasonably or 

without foundation. Crowley, 145 Idaho at 514, 181 P.3d at 440. As each party has prevailed in 

part, neither party’s position on appeal is frivolous. In accord, the requests are denied.4

 In the 

intermediate appeal the district court awarded Kristina I.C. § 12-121 attorney fees, finding that 

the proceeding was brought unreasonably and without foundation. Because we vacate the 

 

4 Moreover, Darren appears pro se in this appeal and, thus, has incurred no attorney fees.
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district court’s appellate opinion affirming the magistrate, Darren’s intermediate appeal was 

necessarily not frivolous, therefore we also vacate the district court’s award of attorney fees. 

High Valley Concrete, L.L.C. v. Sargent, 149 Idaho 423, 429, 234 P.3d 747, 753 (2010). 

IV.

CONCLUSION

The district court’s intermediate appellate decision affirming the magistrate and its order 

awarding attorney fees on intermediate appeal are affirmed in part and reversed in part. The 

district court’s decision affirming the magistrate’s child support determination is affirmed. The 

district court’s decision affirming the magistrate’s ruling on custody is reversed as is the award 

of attorney fees and this case is remanded. The parties’ requests for I.C. § 12-121 attorney fees 

on appeal are denied. No costs are awarded to either party.

Judge MELANSON and Judge Pro Tem SCHWARTZMAN CONCUR.