1

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 50257

NEPHI FISCHER,

Petitioner-Appellant,

v.

ELIZABETH ROUNDY,

Respondent.

)

)

)

)

)

)

)

)

)

)

Filed: December 29, 2023

Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Seventh Judicial District, State of Idaho, 

Jefferson County. Hon. Stevan H. Thompson, District Judge. Hon. Robert L. 

Crowley, Magistrate.

Order of the district court, on intermediate appeal, affirming the magistrate court’s

judgment awarding child custody and support, affirmed.

Nephi Fischer, Idaho Falls, pro se appellant. 

Beard, St. Clair, Gaffney, PA; Dan C. Dümmar Rexburg, for respondent. 

________________________________________________

GRATTON, Judge 

Nephi Fischer appeals from the district court’s decision on intermediate appeal affirming 

the magistrate court’s judgment awarding sole physical and legal custody to the children’s mother 

(Elizabeth), ordering ongoing reunification counseling with Elizabeth and the children without 

Nephi, and requiring Nephi to pay child support in the amount of $1,663.60 per month. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Nephi and Elizabeth were never officially or legally married, but they had a spiritual 

marriage ceremony in 1992. They have five children in common. For nearly six years, the three 

youngest children were left in the custody of a third party, Josephine Nyborg, in Utah until 

Elizabeth returned from another state and brought the children to Idaho. Nephi then filed a 

paternity and custody action against Elizabeth for the three youngest children. The magistrate 
2

court ordered the children to be in the sole physical custody of Nephi for one year, and ordered the 

children to be in the sole physical custody of Elizabeth for the following year. The magistrate

court then ordered Shelly Carson to serve as a parenting time evaluator and conduct a parenting 

time evaluation (PTE). Additionally, Penny Rockhill was appointed to be the reunification 

counselor for Elizabeth and the children. After a court trial, the magistrate court found that: 

(1) Nephi is the biological father of the minor children; (2) it is not in the best interests of the 

children to award joint custody to both parties; (3) it is in the best interests of the children to award 

Elizabeth sole physical and legal custody; (4) the three younger children are to participate in 

reintegration therapy without communication or visitation from Nephi and at the direction of 

Rockhill; and (5) the three younger children are able to have phone visitation with paternal family 

members. The magistrate court also ordered Nephi to pay Elizabeth $1,663.60 per month in child 

support. 

Nephi appealed to the district court, arguing that the magistrate court erred in awarding 

sole physical and legal custody of the three younger children to Elizabeth, allowing Rockhill to 

testify and present documents as a court-appointed expert at the court trial, ordering reunification 

counseling for the three youngest children without Nephi’s involvement, and imputing $72,844.00

in income to Nephi and the resultant child support calculations. The district court affirmed. Nephi 

again appeals. 

II.

STANDARD OF REVIEW

For an appeal from the district court, sitting in its appellate capacity over a case from the 

magistrate court, we review the record to determine whether there is substantial and competent 

evidence to support the magistrate court’s findings of fact and whether the magistrate court’s 

conclusions of law follow from those findings. Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.2d 

214, 217-18 (2013). However, as a matter of appellate procedure, our disposition of the appeal 

will affirm or reverse the decision of the district court. Id. Thus, we review the magistrate court’s 

findings and conclusions, whether the district court affirmed or reversed the magistrate court and 

the basis therefore, and either affirm or reverse the district court. 

When a trial court’s discretionary decision is reviewed on appeal, the appellate court 

conducts a multi-tiered inquiry to determine whether the trial court: (1) correctly perceived the 

issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently 
3

with any legal standards applicable to the specific choices before it; and (4) reached its decision 

by an exercise of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 

(2018). 

III.

ANALYSIS

Nephi raises several issues on appeal. As a procedural matter, Nephi claims that the district 

court erred in settling the transcript relative to the intermediate appeal to the district court. Next, 

Nephi argues that the magistrate court erred in awarding sole legal and physical custody of the 

children to Elizabeth. In support of this argument, Nephi contends that the magistrate court erred 

in relying on an unreliable and biased PTE and that the magistrate court’s findings of fact are not 

supported by the PTE. Specifically, Nephi argues that the PTE and the magistrate court 

erroneously relied on improper definitions of alienation and domestic violence and improperly and 

insufficiently analyzed the factors in Idaho Code § 32-717.1 Nephi also argues that the magistrate 

court erred in allowing Rockhill to testify and present documentary evidence, and in ordering 

reunification counselling without his involvement and with the current counselor, Rockhill. 

Finally, Nephi argues that the magistrate court erred in imputing income to Nephi in calculating

child support.

A. Claims Raised For the First Time on Appeal

Before addressing the foregoing arguments, we first dispose of Nephi’s unpreserved claims 

of error. Nephi argues for the first time on appeal to this Court that the magistrate court erred in 

denying Nephi’s motions to allow the children a say in their choice of parent. Nephi further 

 

1

Incident to these arguments, Nephi claims that the custody order is not in the best interests 

of the children because there is no time limit on the arrangement. This argument is redundant to 

the analysis of the factors in Idaho Code § 32-717 and is not supported by argument and legal 

authority. A party waives an issue on appeal if either argument or authority is lacking. Powell v. 

Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997). Nephi also argues that the 

magistrate court’s findings are unsupported because there is conflict between the testimony of 

Carson and Rockhill with regard to custody and reunification responsibility. Nephi had the 

opportunity to cross-examine these witnesses, has pointed to no material conflict in the testimonies 

and, moreover, this Court does not reweigh the evidence. Plasse v. Reid, 172 Idaho 53, 65, 529 

P.3d 718, 730 (2023) (“We are an error correcting court, not a finder of facts.”). Lastly, Nephi 

argues that the PTE was seven months old at the time of trial, but presents nothing but his own 

conclusion that the PTE was stale and unreliable. Again, we do not reweigh the evidence and 

Nephi fails to support this argument with any legal authority. We will not further consider these 

arguments. 
4

explains that he moved for the children to speak directly to the judge or another third party other 

than Elizabeth or the parenting time evaluator. Nephi then argues that one of the children was 

allowed to sign his name to an extensive complaint without a court order to do so, allegedly in 

violation of Idaho Rules of Family Law Procedure 118(b). Nephi also argues for the first time that 

the magistrate court erred in what is best for the children. In his argument, Nephi alleges that the 

magistrate court relied solely on the report of the parenting time evaluator, Shelly Carson. Nephi 

specifically alleges that the best interests of the children are not being met because the children 

expressed their interest in an audio recording of their feelings towards Elizabeth, and hatred shown 

by members on the Roundy farm where Elizabeth lives towards the children and their beliefs. 

These issues were not raised in the district court on intermediate appeal. Where a party 

appeals the decision of an intermediate appellate court, the appellant may not raise issues that are 

different from those presented to the intermediate court. Wood v. Wood, 124 Idaho 12, 16-17, 855 

P.2d 473, 477-78 (Ct. App. 1993). These issues, having been raised for the first time on appeal to 

this Court, will not be considered.2

B. Settled Transcript on Intermediate Appeal

Nephi alleges that the district court erred by “allowing Elizabeth’s attorney Dan Dummar 

to utilize trickery and technical legal maneuvering [] to get accepted as the ‘[S]ettled 

Transcript[,]’[] a document containing 157 errors and outright alterations.” Nephi claims that he 

objected to the additional transcript requested by Elizabeth’s attorney. Further, Nephi alleges that 

the district court denied the corrections on a technicality and settled the transcript with the altered 

version. 

In Nephi’s argument, he provides no citation to the record. A party waives an issue on 

appeal if either authority or argument is lacking. Powell v. Sellers, 130 Idaho 122, 127, 937 P.2d 

434, 439 (Ct. App. 1997). It is the responsibility of the appellant to provide a sufficient record to 

substantiate his or her claims on appeal. Id. In the absence of an adequate record on appeal to 

support the appellant’s claims, we will not presume error. Id. Additionally, when issues on appeal 

are not supported by provisions of law, authority, or argument, they will not be considered. Idaho 

 

2 To the extent Nephi has properly raised and supported the argument related to best interests 

and choice of parent to the district court in his argument regarding application of the factors in I.C.

§ 32-717, they will be considered in the analysis of that claim.
5

Appellate Rule 35. It is well-established that courts will apply the same standards and rules 

whether or not a party is represented by an attorney and that pro se litigants must follow the same 

rules, including the rules of procedure. Bettwieser v. New York Irrig. Dist., 154 Idaho 317, 322, 

297 P.3d 1134, 1139 (2013). Pro se litigants are not entitled to special consideration or leniency 

because they represent themselves. Id. Consequently, Nephi has waived this claim.

Nevertheless, the district court specifically reviewed this issue and concluded:

Despite Mr. Fischer’s claims that the transcripts included in the Clerk’s Record are 

different or have been altered in some way by Ms. Roundy and/or her counsel, the 

Court Clerk pulled those transcripts for the Clerk’s Record directly from the court 

file. Ms. Roundy has not submitted any new transcripts. The transcripts contained 

in the Clerk’s Record are the exact same transcripts that were lodged, settled, and 

used in the appeal before this Court. While the transcripts may not be an accurate 

reflection of the audio recordings from the trial, they are the exact transcripts that 

Mr. Fischer’s previous counsel provided to this Court to be lodged and settled 

during the appeal before this Court. The Court finds no basis for Mr. Fischer’s 

objection.

Nephi has shown no error in the district court’s settlement of the record on intermediate appeal. 

C. Rockhill Testimony

Nephi contends the district court erred in finding that the magistrate court did not abuse its 

discretion in allowing Rockhill to testify as a court-appointed expert witness at trial. Nephi alleges 

that there was never a written order appointing Rockhill as an expert. Nephi argues that the IRFLP

does not provide for a court-appointed counselor and there are no set guidelines or rules for such. 

To the contrary, magistrate courts are given discretion to order services related to mental health, 

parent education, and resources. IRFLP 1001(a)-(c). This includes assessments and evaluation, 

counseling, parenting skills classes, and more. As the district court correctly concluded, the 

magistrate court’s oral ruling was a sufficient order. Further, Nephi requested Rockhill to serve 

as the reunification counselor in the original order of appointment by the magistrate court. 

To the extent Nephi argues that the magistrate court otherwise erred in allowing Rockhill 

to testify and present evidence at trial, he provides no legal authority as to why this was in error. 

Further, neither party moved for strict compliance with the Idaho Rules of Evidence. Therefore, 

pursuant to the rules, all relevant evidence was admissible. IRFLP 102(b)(1)-(2). Rockhill 

provided relevant reports to the magistrate court before the trial began, giving both parties notice 

of her findings. Rockhill’s reports contained information from her interviews and observations 

with both parties, all the children, and third parties that are closely acquainted with the children. 
6

Her testimony and findings were relevant to this matter. Because Nephi has failed to present any 

authority to the contrary, the magistrate court did not abuse its discretion by allowing Rockhill to 

testify and present evidence as a fact and expert witness.

3

D. Sole Physical and Legal Custody

Nephi alleges the district court erred in finding that the magistrate court did not abuse its 

discretion in ordering sole physical and legal custody of the three younger children to Elizabeth. 

First, Nephi claims the magistrate court’s findings are not supported by competent evidence as 

they were nearly entirely based on Carson’s biased and unfounded opinions contained in the PTE. 

Nephi alleges the PTE shows bias against him by focusing too heavily on Elizabeth’s concerns

and desires while dismissing his concerns and desires. To that end, Nephi argues that Carson’s 

bias is shown in the choice of persons interviewed for the PTE who themselves are biased and with 

whom he personally has issues. Second, Nephi argues the magistrate court improperly relied on 

Carson’s concerns about alienating conduct by Nephi and his support system. Specifically, he 

asserts that Carson and the magistrate court considered passive alienating conduct to be sufficient 

when the law requires active alienation or a pattern of such conduct. Third, Nephi claims the 

magistrate court relied on an overbroad definition of domestic violence used in the PTE. Finally, 

Nephi contends that the magistrate court erred in analyzing the best interest factors in I.C. § 32-

717. We will address each claim in turn.

1. Bias

Nephi argues that Carson’s PTE “shows extreme bias and near fanatical reliance on the 

statements of Elizabeth against Nephi” and that “the PTE is replete with allegations against Nephi 

and all inferences are made contrary to his interests.” Carson was appointed to be the parenting 

time evaluator for the purpose of providing the magistrate court “with information it may consider 

to make decisions regarding custody and parenting time arrangements that are in the child[ren]’s 

bests interests.” IRFLP 1004(a). A parenting time evaluator “perform[s] a judicial function when 

conducting an evaluation.” IRFLP 1004(j). During the court trial, Carson testified about her 

 

3 Nephi claims that Rockhill was only disclosed as a fact witness and that there was no expert 

witness disclosure. First, he fails to cite to anything in the record to support the claim. Second, 

her expertise was the basis of her appointment. Third, Nephi did not argue for a sanction under 

the rules for any untimely or inadequate disclosure. This claim is without merit. 
7

qualifications and experience as a parenting time evaluator. Carson prepared a comprehensive 53-

page report and testified accordingly. 

Nephi’s claims that the magistrate court’s findings are unsupported due to reliance on a

biased PTE are without merit. Nephi has shown no bias or unsupportable conclusions in the PTE, 

but only his personal disagreement with those findings and conclusions. While Nephi asserts that 

the people interviewed for the PTE are the source of Carson’s alleged bias and what influenced 

her decision, as the district court noted: 

The Court does not find Nephi’s arguments that Carson was obligated to interview 

the same number of collateral sources for each party and ask each party the exact 

same questions to be persuasive. Such variation in conducting her investigation, 

which she has the discretion to do, is not per se bias as Nephi argues. 

Nephi fails to show that the information relayed to Carson was incorrect or that she did not properly 

conduct her evaluation. Nephi’s disagreement does not show bias.

Moreover, rather than basing its order entirely on the PTE, the magistrate court made 

findings based on the PTE, testimony from Elizabeth, Nephi, Carson, Rockhill, and the children’s 

school counselor, as well as direct observations. This Court’s review of the magistrate court’s 

findings in light of the PTE does not show that the magistrate court “fanatically” relied on the PTE 

or anything of the sort. A trier of fact is not bound to interpret evidence in the same way as its 

proponent would like. An adverse ruling, on its own, is insufficient evidence of bias. Plasse v. 

Reid, 172 Idaho 53, 65, 529 P.3d 718, 730 (2023). Nephi has failed to show that the magistrate 

court’s findings are not supported by substantial and competent evidence in the record.

2. Alienation

Nephi argues that because he was, at worst, passively rather than actively alienating the

relationship between the children and Elizabeth, his actions do not rise to the level of alienation. 

The acts and conduct of the custodial parent resulting in the alienation of the love and affection 

which children naturally have for the other parent is a vital and very serious detriment to the 

welfare of such children and is grounds for modification of the decree with respect to custody. 

Kelly v. Kelly, 165 Idaho 716, 728, 451 P.3d 429, 441 (2019). For the magistrate court to consider 

actions as alienating behavior, Nephi argues he must have exhibited a “pattern of conduct designed 

to drive a wedge between the children and the other spouse.” Nephi argues that Doe v. Doe, 161 

Idaho 67, 76, 383 P.3d 1237, 1246 (2016) holds passivity is insufficient for a finding of alienation. 

Nephi is incorrect. The Idaho Supreme Court held in Doe that a mother texting with her children 
8

negatively about their father, moving thirty minutes away, and having a conversation with the 

older children about the details of the ongoing family court proceeding, was not enough to find the 

mother engaged in a “systematic effort to alienate the children from Father or to shake the 

foundation of the children’s love and affection for their Father.” Id. at 77, 383 P.3d at 1247. The 

behavior by Nephi that the magistrate court considered in this case differs greatly from the 

mother’s behavior in Doe. Nephi’s alienating conduct, as described by the magistrate court went 

beyond passivity:

The court has found, however, that Nephi has done very little to facilitate 

Elizabeth’s visitation and association with the three youngest children when he had 

the opportunity to do so. He has, in fact, by his conduct, or lack thereof (passivity 

as the parenting time evaluator referred to it) contributed to the lack of attachment 

by the three youngest children with Elizabeth. He has failed to support Elizabeth in 

correction of the three youngest children when they have destroyed her property, 

when they have called her inappropriate names and when they have treated her 

inappropriately physically. Nephi has said derogatory things to the three youngest 

children about Elizabeth.

The magistrate court noted its great concern as to Nephi’s reaction to the children 

vandalizing Elizabeth’s car. The magistrate court referenced a recounting of the incident in the 

PTE: 

Father was informed of the destructive behavior of the children. In an audio 

conversation provided by Mother in which she has asked Father to look at the 

vandalism caused to her car by the children, Father can be heard saying how it was, 

“a work of art,” and made a couple of sounds of “awe” while looking at Mother’s 

car. 

As correctly noted by the district court, it is not proper for an appellate court to second-guess a

finding of the trial court just because there is conflicting evidence. The evidence in the record

supports a determination by the magistrate court that Nephi exhibited a pattern of conduct 

constituting alienating behavior. 

3. Domestic Violence

Domestic violence is one of the factors for determining child custody in I.C. § 32-717. 

Nephi argues that because Carson addressed domestic violence “in a broader context than the 

statutory definition,” the magistrate court erred in relying on the PTE. However, the magistrate 

court did not rely on any broader definition that may have been in the PTE. Although the 

magistrate court noted that the PTE included analysis of a definition of domestic violence that was 

broader than the statutory definition, the magistrate court did not make any findings or conclusions 
9

adopting the broader definition. As noted by the district court, “There is no argument from [Nephi]

that the magistrate court even considered domestic violence as part of its analysis.” Nephi has 

failed to show error regarding the magistrate court’s consideration of domestic violence as a factor 

under I.C. § 32-717. 

4. Idaho Code § 32-717

Finally, Nephi contends that the magistrate court failed to properly analyze the factors in

I.C. § 32-717 for determining the best interests of the children. Idaho appellate courts review a 

magistrate court’s findings and conclusions governing child custody under an abuse of discretion

standard. Poesy v. Bunney, 98 Idaho 258, 261, 561 P.2d 400, 403 (1977). Likewise, the standard 

of review on an appeal from a child support award is whether the court abused its discretion. 

Atkinson v. Atkinson, 124 Idaho 23, 25, 855 P.2d 484, 486 (Ct. App. 1993). When a trial court’s 

discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to 

determine whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted 

within the boundaries of such discretion; (3) acted consistently with any legal standards applicable 

to the specific choices before it; and (4) reached its decision by an exercise of reason. Lunneborg, 

163 Idaho at 863, 421 P.3d at 194. 

A trial court has great discretion to weigh the strength and the credibility of evidence to 

make factual findings. Voss v. Voss, 169 Idaho 518, 527, 497 P.3d 1138, 1147 (Ct. App. 2021).

On appeal, the court liberally construes the trial court’s credibility findings because the trial court’s 

province is to determine the witnesses’ credibility, the weight to be given their testimony, and the 

inferences to be drawn from the evidence. Id. The appellate court will not substitute its judgment 

for that of the trial court except in cases where the record reflects a clear abuse of discretion. 

Woods v. Woods, 163 Idaho 904, 906, 422 P.3d 1110, 1112 (2018).

In support of his claim that the magistrate court erred in its I.C. § 32-717 analysis, Nephi 

essentially disputes the findings by merely pointing to his version of the facts and how they should 

be applied. Nephi misunderstands our role on appeal. The Idaho Supreme Court recently

explained:

We heard and understood Reid’s frustrations with the outcome of these 

proceedings before the magistrate court, and, certainly, a fundamental tenet of our 

judicial system is the right to appeal adverse rulings. However, we rejected his 

arguments because they were unsubstantiated or if substantiated, immaterial in the 

scheme of things. The lack of support for Reid’s arguments appears to be rooted in 

his misunderstanding of the legal process. Throughout this litigation, Reid has
10

attempted to have different courts reconsider evidence until they side with him.

However, the appeals process exists to correct errors made below, not to give parties 

a second attempt to have their arguments considered by an additional trier of fact.

We are an error correcting court, not a finder of facts.

Plasse, 172 Idaho at 65, 529 P.3d at 730. Nephi’s claims are not grounded in a failure of evidence 

to support the magistrate court’s findings, but are a re-argument of why his position should have 

been adopted by the magistrate court. 

The magistrate court acknowledged that this case was difficult and noted that Carson 

deemed it to be a moderate to severe case. In recognition of this, the magistrate court devoted ten 

pages of analysis of the I.C. § 32-717 factors. The magistrate court weighed all relevant factors, 

did not overemphasize any individual factors, and ultimately determined what is in the best 

interests of the children. As required by I.C. § 32-717, the magistrate court considered (a) the 

wishes of the parents; (b) the wishes of the children; (c) the interaction and interrelationship of the 

children with the parents and siblings; (d) adjustment of the children to the home, school and 

community; (e) character of the individuals involved; (f) the need to promote continuity and 

stability in the lives of the children; and, (g) domestic violence (as noted above).4 In addition, the 

magistrate court considered that the parents have had varying degrees of custody orders, all of 

which have been unsuccessful. It also considered the difficulty the parents have in communicating 

with each other, the different desires the parents have for educating the children, the difficult 

visitation arrangements, long periods of absence from the children, and the inability of the parents 

to settle disagreements. These factors led to the determination of what is in the best interests of 

the children, and the magistrate court concluded that sole legal and physical custody with Elizabeth 

is in their best interests. Nephi has failed to show the magistrate court abused its discretion in 

awarding sole physical and legal custody to Elizabeth.

E. Reunification Counseling Without Nephi

Nephi alleges the district court erred in finding that the magistrate court did not abuse its 

discretion in ordering reunification counseling between the three youngest children and Elizabeth 

without Nephi’s involvement. Nephi again provides no authority for this claim. However, the 

 

4 Nephi has suggested that the magistrate court failed to address the character of the 

individuals involved. However, we agree with the district court that, while stylistically the 

magistrate court did not go through the factors in order, “the character and circumstances of those 

involved in this case was one of the factors given the most consideration by the magistrate court.” 
11

record shows that the magistrate court heavily considered the best interests of the children when 

ordering reunification without Nephi. The magistrate court found that the “alienating narrative 

and coaching of the children by [Nephi] and his support system” would hinder reunification efforts 

between Elizabeth and the children. The court further explained that it was aware of and concerned 

with how much time Nephi would be kept from the children. While balancing these concerns, the 

court found that reunification counseling without Nephi is in the children’s best interests to reunify 

with their mother. The magistrate court noted that this would be best for the time being and would 

be subject to frequent monitoring by the court. Consequently, Nephi has the ability to demonstrate 

to the magistrate court a change in circumstances sufficient to modify the custody order. 

As to Nephi’s arguments that the IRFLP does not allow for a court ordered reunification 

counselor; that Rockhill was not following Carson’s recommendation in the PTE; and that the 

appointment and reliance upon the unfettered discretion placed in Rockhill is “beyond the 

discretion of the Magistrate Court,” we have rejected those arguments as set forth above. Nephi 

provides no other argument or legal authority for his claim. As the district court acknowledged,

the custody order is reasonable due to the unique circumstances of this case. Nephi has not shown

that the magistrate court erred in ordering reunification therapy without Nephi’s involvement.

F. Child Support

Nephi alleges the district court erred in finding that the magistrate court did not abuse its 

discretion in imputing income to Nephi and the related amount of child support calculated for him

to pay Elizabeth. Nephi again fails to provide any legal authority as to how the magistrate court 

committed reversible error. Nephi alleges that the court did not follow Idaho Guideline 126 and 

120, presumably referencing the Idaho Child Support Guidelines. This citation is inadequate and 

Nephi cites no provision of those guidelines that are applicable to this issue or how they support 

his claim. Therefore, this issue is also waived; however, this Court will briefly address its merits. 

When determining child support amounts, the magistrate court took note of the exhibits 

presented at trial, the testimony of the parties, and Nephi’s affidavit. Nephi’s affidavit verifying 

his income in accordance with IRFLP 401 stated his annual income at $74,844, which the 

magistrate court adopted. At trial, though, Nephi testified that he was “just guessing” but that his 

income for the next year could be between “40 and 65,000 a year.” However, he also testified that 

he works by the hour, his last employer was willing to pay him $40 per hour, he has extensive 

training and education, and he was then working as a private contractor. As noted by the
12

magistrate court, $40 per hour would translate into $83,200, yet the magistrate court adopted the 

lower amount of $72,844 that Nephi attested to in his income verification affidavit. On 

intermediate appeal, the district court correctly determined that the magistrate court was wellwithin its discretion to disregard an estimated number in favor of the specific amounts Nephi

provided, particularly since the trial court was giving due consideration to the changing 

circumstances of Nephi’s employment by not using the $40 per hour that Nephi claimed he was 

making at the time of trial. Nephi has failed to establish error by the district court in its decision 

affirming the magistrate court’s imputation of income to Nephi and the related child support 

award.

G. Attorney Fees

Nephi requests attorney fees and costs on appeal. Because Nephi is not represented by 

counsel on appeal, an award of attorney fees would be without legal or factual support. Moreover, 

in order to recover attorney fees, a party must first prevail on the merits. Weaver v. Weaver, 170 

Idaho 72, 79, 507 P.3d 1102, 1109 (2022). Nephi is not the prevailing party.

Elizabeth requests attorney fees and costs on appeal. Elizabeth seeks attorney fees pursuant 

to I.C. § 12-121. An award of attorney fees may be granted under I.C. § 12-121 and I.A.R. 41 to 

the prevailing party and such an award is appropriate when the court finds that the appeal has been 

brought or defended frivolously, unreasonably, or without foundation. In Plasse, the Idaho 

Supreme Court held: 

[I]t is clear from the record that Reid appealed the magistrate court’s amended 

judgment and decree “frivolously[.]” I.C. § 12-121. This Court has previously held 

that where the non-prevailing party “continued to rely on the same arguments used 

in front of the [] court, without providing any additional persuasive law or bringing 

into doubt the existing law on which the [] court based its decision[,]” an award of 

attorney fees under section 12-121 is warranted.

Plasse, 172 Idaho at 65, 529 P.3d at 730 (quoting Thornton v. Pandrea, 161 Idaho 301, 320, 385 

P.3d 856, 876 (2016)). 

We conclude that Elizabeth is the prevailing party and is entitled to an award of attorney 

fees pursuant to I.C. § 12-121. In large measure, Nephi’s appeal is unsupported by argument or 

legal authority. He repeatedly asks this Court to reweigh the evidence in a light more favorable to 

his position, which is outside the scope of appellate court review. No procedural or substantive 

error by the magistrate court or the district court in affirming the magistrate court has been shown. 

Nephi’s repeated claims of bias are without basis. We award attorney fees and costs to Elizabeth.
13

IV.

CONCLUSION

The district court did not err in affirming the magistrate court’s judgment awarding sole 

legal and physical custody to Elizabeth. Nephi has shown no error in the admission of Rockhill’s

testimony, in ordering reunification counseling without Nephi’s involvement, or in imputing 

income to Nephi in determining child support. Therefore, the decision of the district court, on 

intermediate appeal, affirming the judgment of the magistrate court is affirmed. Attorney fees and 

costs are awarded to Elizabeth.

Chief Judge LORELLO and Judge HUSKEY CONCUR.