IN THE SUPREME COURT OF THE STATE OF IDAHO 

Docket No. 34790 

KENNETH DEAN SCHULTZ, 

 

 Plaintiff-Respondent, 

 

 v. 

 

 RHONDA RAE SCHULTZ, 

 

 Defendant-Appellant. 

 

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Boise, May 2008 Term 

2008 Opinion No. 82 

Filed: June 13, 2008 

Stephen W. Kenyon, Clerk 

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

County. Hon. Terry R. McDaniel, Magistrate Judge. 

Magistrate’s order on child custody, reversed and remanded.

Vaughn W. Fisher, Jr., Boise, argued for appellant. 

Brooks Law, P.C., Nampa, for respondent. Kimberly Danielle Brooks argued. 

__________________________________ 

BURDICK, Justice 

Appellant Rhonda Rae Schultz appeals from a magistrate court’s order requiring her to 

return to Idaho with her minor daughter or relinquish custody of the child to Respondent 

Kenneth Dean Schultz. We reverse and remand. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

Kenneth Dean Schultz (Kenneth) and Rhonda Rae Schultz (Rhonda) were married in 

Boise on February 25, 2005. Their only child, Sylvia Susan Schultz (Sylvia), was born on May 

21, 2005. Kenneth and Rhonda had a tumultuous relationship, characterized by domestic abuse 

since before they married and became parents. 

 On February 2, 2007, Kenneth was arrested for domestic violence against his wife; he 

later pleaded guilty to domestic battery, I.C. § 18-918. After this instance of abuse, Rhonda fled 

to Oregon with Sylvia. Rhonda immediately filed for a restraining order in Oregon, which was 

granted. A month later, Kenneth filed for divorce in Boise. While that action was pending, the 

Oregon court granted Kenneth temporary supervised visitation with Sylvia. The Idaho and 

Oregon courts then agreed jurisdiction was proper in Idaho. 

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Seven months after Rhonda fled to Oregon, and four months after the Oregon court 

granted him visitation, Kenneth filed a motion requesting that the Idaho court order Rhonda to 

return with Sylvia to Boise or surrender custody of the child to Kenneth. Rhonda opposed this 

motion, arguing it was not in Sylvia’s best interest to move from Oregon or to live with her 

father, whom she had not seen in months. Rhonda also argued, based on Kenneth’s pattern of 

domestic abuse, that she feared for their safety should she and Sylvia be ordered to return. 

Nonetheless, relying on Hopper v. Hopper, 144 Idaho 624, 167 P.3d 761 (2007), the magistrate 

entered an order requiring Rhonda and Sylvia to return to Idaho or requiring Rhonda to 

relinquish custody of the child to Kenneth. Four days later Rhonda filed a motion for permissive 

appeal and stay, but this was denied. She then petitioned this Court for permission to appeal and 

stay the execution of the magistrate court’s order. This Court granted her motion. 

II. ANALYSIS 

This case presents a single issue: whether the magistrate court abused its discretion by 

entering an order requiring Rhonda to return to Idaho with her daughter or relinquish custody of 

Sylvia to Kenneth. Additionally, Kenneth requests attorney fees on appeal. We will turn first to 

the propriety of the order, and then address the requested fees. 

A. The magistrate court abused its discretion by entering the order.

Rhonda argues that the magistrate court abused its discretion by entering an order 

requiring her to return to Idaho with Sylvia or to surrender custody of the child to Kenneth. 

Child custody determinations are left to the discretion of the magistrate court, and will be 

overturned on appeal only for an abuse of discretion. Hoskinson v. Hoskinson, 139 Idaho 448, 

454, 80 P.3d 1049, 1055 (2003). This Court reviews discretionary decisions to determine 

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 

choices before it; and (3) reached its decision by an exercise of reason.” Hopper, 144 Idaho at 

__, 167 P.3d at 763. The trial court’s findings of fact will be upheld if there is substantial and 

competent evidence supporting them. Id. Here, the order fails under all three prongs of the 

discretionary review test. 

1. It is unclear whether the magistrate court perceived the custody determination before 

it as an issue of discretion.

It is unclear whether the magistrate court perceived the question before it as one of 

discretion. Its order states: 

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1. Plaintiff’s Motion for Order Requiring Defendant Return Minor 

child to Idaho Jurisdiction or in the Alternative Grant Plaintiff 

Temporary Custody is hereby granted. 

2. Pursuant to Hopper v. Hopper, 2007 Ida. LEXIS 61 (Idaho 2007)

[sic] RHONDA RAE SCHULTZ (hereinafter “Rhonda”) is 

ordered to return the minor child SYLVIA SUSAN SCHULTZ, 

(hereinafter “Sylvia”) to Idaho jurisdiction within fourteen (14) 

days of the entry of this Order. 

3. Should Rhonda refuse to return to Idaho with Sylvia, Rhonda 

shall be ordered to relinquish custody of Sylvia to KENNETH 

DEAN SCHULTZ within fourteen (14) days of the entry of this 

Order. 

This order does not discuss the standard under which the magistrate considered the 

motion, and it does not show that the court understood that granting or denying Kenneth’s 

motion was within its discretion. At most, this order cites to the Hopper case, which in turn lays 

out the discretionary standard for determining child custody issues and makes clear that the best 

interest of the child is of paramount importance in custody determinations. See 144 Idaho at __, 

167 P.3d at 763-64. Nonetheless, the court’s citation to Hopper could also demonstrate that it 

believed the order was mandated by the holding in Hopper. Indeed, it appears from the whole of 

the order that the magistrate believed that Hopper removed his discretion. As such, the 

magistrate court abused its discretion. 

2. The magistrate court did not act consistently with the applicable legal standards. 

Second, the magistrate court did not act consistently with the legal choices presented by 

the parties because it is not clear whether the court looked to the child’s best interest and because 

its order is not supported by substantial and competent evidence. 

We cannot determine from the order whether the magistrate court looked to Sylvia’s best 

interest when making its decision. A court must consider the best interest of the minor child 

when making custody determinations, and when analyzing this may consider: 

(a) The wishes of the child’s parent or parents as to his or her custody; 

(b) The wishes of the child as to his or her custodian; 

(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; 

(e) The character and circumstances of all individuals involved; 

(f) The need to promote continuity and stability in the life of the child; and 

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(g) Domestic violence as defined in section 39-6303, Idaho Code, whether or not 

in the presence of the child. 

I.C. § 32-717(1). The court may also consider whether one parent commits child custody 

interference and any statutory defenses to that crime as defined by I.C. § 18-4506. Hopper, 144 

Idaho at __, 167 P.3d at 764. Additionally, a parent leaving Idaho with a child is a factor in 

determining the child’s best interest, but not a “determinative condition in a child custody 

determination.” Navarro v. Yonkers, 144 Idaho 882, __, 173 P.3d 1141, 1147 (2007). 

The magistrate court’s order contains no findings, nor any references to the evidence 

before the court which might support its decision, as to what would be in Sylvia’s best interest. 

Rhonda introduced unrebutted evidence as to each of the I.C. § 32-717 factors, and Kenneth 

introduced evidence on some of the factors. Nevertheless, the court made no findings and did 

not determine whether it would be in Sylvia’s best interest to remain with her mother or to return 

to Boise. Such a lack of elaboration is considered an abuse of discretion because this Court 

cannot review the order to determine whether the lower court acted consistently with applicable 

legal standards. See Moye v. Moye, 102 Idaho 170, 172, 627 P.2d 799, 801 (1981). 

 Kenneth asserts that the magistrate made implicit findings, and that these findings are 

supported by substantial and competent evidence. Before analyzing the evidence, however, it is 

necessary to address Kenneth’s assertion that Rhonda failed to support her position with 

evidentiary facts. Kenneth’s argument is that there are no facts in the record because he was not 

afforded an opportunity to cross-examine Rhonda as to any statements she made in her 

affidavits.1

 This argument presumes that an affidavit from an interested party is not sufficient 

without additional evidence.2

 However, there is no requirement that an interested party 

corroborate her testimony, and a court does not err by considering an affidavit from an interested 

party without further corroboration. Wait v. Leavell Cattle, Inc., 136 Idaho 792, 798, 41 P.3d 

220, 226 (2001).3

 Additionally, in a contested, interlocutory motion, the court may make 

inferences from all admissible evidence including affidavits. Therefore, the record contains 

sufficient admissible evidentiary facts for this Court to review. 

 

1 Kenneth had the opportunity to submit his own affidavits in response to Rhonda’s opposition to his motion, but did 

not take advantage of the opportunity to rebut her testimony. 

2 It is unclear from Kenneth’s argument how the Court could still consider his affidavits if we were to accept the 

premise of his argument, as he too is an interested party. 

3 Although Wait dealt with a motion for summary judgment, the general, evidentiary principle that an interested 

party need not corroborate her testimony applies equally well to the current motion. 

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Here, even if the magistrate made the implicit decision that it would be in Sylvia’s best 

interest to return to Boise or Kenneth’s custody–and this is not clear from the face of the order– 

such a decision is an abuse of discretion. “An abuse of discretion by the trial court occurs when 

the evidence is insufficient to support its conclusion that the welfare and interests of a child will 

be best served by a particular custody award.” Moye, 102 Idaho at 172, 627 P.2d at 801; see also 

Navarro, 144 Idaho at __, 173 P.3d at 1147. It is also an abuse of discretion for the trial court to 

over emphasize any one factor. Moye, 102 Idaho at 172, 627 P.2d at 801. All of the relevant 

factors impacting the custody decision must be considered and reflected in the record. See id. 

 In opposition to Kenneth’s motion for a temporary custody order, Rhonda relied on two 

affidavits. In her first affidavit, filed prior to Kenneth’s motion in order to support her motion 

for temporary support, Rhonda testified: 

4) During the course of our marriage Kenneth Dean Schultz physically abused me 

on repeated occasions. 

. . . . 

7) While I lived in marriage with Kenneth Dean Schultz he would not allow me to 

take Sylvia to the doctor. 

8) While I lived in marriage with Kenneth Dean Schultz he prohibited me from 

working and would not allow me to collect government assistance for which I 

believe me [sic] and Sylvia to be qualified. 

9) While I lived in marriage with Kenneth Dean Schultz he did not obtain medical 

insurance for Sylvia or me even though it was available through his employer. 

. . . . 

11) On February 2, 2007 Plaintiff Kenneth Dean Schultz had been drinking and 

wanted me to drink with him. When I refused he became angry. He grabbed me 

by my hair and slapped me, knocking me to the ground. He slapped me again 

while I was on the ground, then picked me up and physically threw me out the 

front door. Sylvia ran out the door behind me and we were both locked out of the 

house. I called the police and waited at a neighbor’s house. Kenneth Dean 

Schultz was arrested when the police arrived. 

. . . . 

18) Kenneth Dean Schultz has not seen Sylvia or attempted to make arrangements 

to see Sylvia as provided for in the Court Orders from [Oregon] Circuit Judge 

Russell B. West. 

Then, in her affidavit filed in opposition to Kenneth’s motion, Rhonda testified about the 

beginning of her relationship with Kenneth, including living in a van with him while pregnant, 

his refusal to help her obtain state assistance, his attempts to convince her to abort their unborn 

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child, his refusal to allow her to go on doctor-ordered bed rest, his attempts to cause a 

miscarriage by hitting her in the stomach, and his telling her he wished she would miscarry. She 

also details four specific instances of domestic violence, each occurring while Kenneth was 

drinking. During one, Kenneth slapped Rhonda and then locked her in their bedroom for two 

days and would not allow her to see Sylvia. During another instance of abuse, Kenneth hit 

Rhonda, pulled her to the ground by her hair, and threw a beer at her, missing and breaking a 

nearby lamp. After another instance of abuse where Kenneth threw Rhonda into a wall and 

slapped her, she left the home to escape the battery and Kenneth threatened that she would be 

sorry for leaving Sylvia with him. Rhonda fled to a neighbor’s home, called the police, and 

when they arrived, she recovered Sylvia and they left to stay with Kenneth’s mother in Oregon 

for several weeks before returning to Boise. During the final instance of domestic abuse (the 

same instance detailed in her first affidavit), Kenneth physically threw Rhonda out of their home 

and Sylvia ran after her. Rhonda called the police, who arrested Kenneth. The following 

Saturday, February 3, 2007, fearing for her safety and Sylvia’s safety, Rhonda again took Sylvia 

to Oregon. 

Rhonda also testified that once in Oregon, she petitioned an Oregon court for a 

restraining order against Kenneth on Monday, February 5, 2007. This request was granted. She 

also took Sylvia to the doctor for shots and check-ups. After staying with relatives, she and 

Sylvia lived alone together in an apartment and Rhonda worked full-time. Their home is near a 

park and a school; additionally, both mother and child receive assistance from Rhonda’s family 

and from various Oregon agencies. 

 Moreover, Rhonda’s affidavit details that Kenneth contested the restraining order, and 

consequently, the Oregon circuit court held a hearing in April 2007. Although Kenneth was to 

appear telephonically, he failed to appear and the case continued without his presence. At that 

hearing, the court issued a visitation order, allowing Kenneth supervised visitation with Sylvia. 

Rhonda then arranged for the visitation, but Kenneth failed to visit Sylvia. When these 

arrangements failed, Rhonda attempted to allow Kenneth to visit Sylvia by having his mother 

take the child to Boise; Kenneth also declined this visitation arrangement. 

 Finally, Rhonda testified: “I would like for Sylvia to know her father and I think it is 

important that he have a relationship with her. However, I do not want either of us to be alone 

with him. I will not feel safe for either of us unless he completes some alcohol rehabilitation 

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program and maybe not even then.” Rhonda also stated her belief that Sylvia would no longer 

recognize her father, since he has not been visiting her, and stated she wants the two to have a 

period of readjustment and familiarization. Rhonda stated she wants Sylvia to remain in the 

stable home and community where they now reside. 

 Kenneth refuted none of Rhonda’s testimony. Nowhere in the record before this Court 

does he deny the numerous instances of abuse Rhonda details, nowhere in the record does he 

refute that he refused to allow Sylvia to have proper medical and financial support, and nowhere 

in the record does he indicate that he has attempted to visit Sylvia or that he has financially 

supported her as ordered by the Idaho court.4

Here, the magistrate failed to consider numerous factors. It appears from the order that 

the only factor the court considered was the distance between the father and child created when 

Rhonda moved to Oregon. Such an over-emphasis of this single factor is an abuse of discretion. 

See Moye, 102 Idaho at 172, 627 P.2d at 801. Additionally, this Court has made clear that a 

unilateral move out-of-state by one parent is but one factor to consider when making custody 

determinations. Navarro, 144 Idaho at __, 173 P.3d at 1147.5

 The magistrate court also failed to 

consider Rhonda’s wishes for Sylvia, the extensive history of domestic abuse between the 

parents and in the presence of Sylvia, the fact that Kenneth made no attempts to visit his 

daughter either in Oregon or by having his mother bring Sylvia to Boise, or the stability and 

community support offered to Sylvia in Oregon. The failure to recognize these factors and use 

them to evaluate the best interests of Sylvia constitutes an abuse of discretion. See Moye, 102 

Idaho at 172, 627 P.2d at 801. 

Likewise, although Rhonda argued that Kenneth’s habitual domestic violence overcame 

the presumption that joint custody was in Sylvia’s best interest, the magistrate made no findings 

and did not decide this issue. Under Idaho law, it is presumed that a continuing relationship with 

both parents is in the child’s best interest. Hopper, 144 Idaho at __, 167 P.3d at 764 (citing I.C. 

§§ 32-717B(4), 32-1007, 18-4506). However, this presumption can be overcome if the court 

 

4 Kenneth did pay $1000 temporary support as ordered by the Oregon court.

5 Although the magistrate did not have the benefit of Navarro at the time of his decision, Hopper was specifically 

decided on the facts of that case—the mother’s unlawful interference, perjured statements and move out of state. 

144 Idaho at __, 167 P.3d at 764. 

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finds one parent is a habitual perpetrator of domestic violence. I.C. § 32-717B(5).6

 In light of 

the evidence before it, the magistrate court’s failure to address this argument, in addition to its 

failure to address I.C. § 32-717(1)(g), was an abuse of discretion; the record does not support 

that Sylvia’s best interests would be served by removing her from a stable home with a support 

network and returning her to the custody of a father with a history of domestic abuse. See Moye, 

102 Idaho at 172, 627 P.2d at 801. 

In addition to failing to consider Sylvia’s best interest, the court stated: “Pursuant to 

Hopper v. Hopper . . . RHONDA RAE SCHULTZ (hereinafter “Rhonda”) is ordered to return 

the minor child SYLVIA SUSAN SCHULTZ, (hereinafter “Sylvia”) to Idaho jurisdiction within 

fourteen (14) days of the entry of this Order.” This case, however, is readily distinguishable 

from Hopper, and the Hopper case in no way mandates that a court order a parent to return to 

Idaho without first determining whether that move would serve the child’s best interest. See 

Navarro, 144 Idaho at __, 173 P.3d at 1147. 

 In Hopper, this Court vacated a custody order that granted custody to the mother who had 

moved to Montana with the child and filed a false domestic violence report. We remanded for a 

custody hearing “where the father has the opportunity to have the contact with his child to which 

he is entitled and the child receives the benefit recognized in our law that it is in the best interest 

of the child to have a continuing relationship with both parents.” 144 Idaho at __, 167 P.3d at 

764. The Court required that the mother return the child to Idaho, noting that the father’s rights 

had been prejudiced by the mother’s crime of absconding with the child and misconduct by filing 

a false domestic violence report. Id. This Court refused to allow a parent to commit a crime, tell 

falsehoods and gain advantages from that misconduct. Id. 

The case before this Court is readily distinguishable from Hopper. First, Kenneth 

pleaded guilty to domestic battery; Rhonda did not falsely report that he had committed such an 

act. Moreover, it is questionable whether it was criminal for Rhonda to leave for Oregon with 

Sylvia, as a valid defense to custodial interference—leaving to protect herself and Sylvia—

appears to exist. See I.C. § 18-4506(2)(a)-(b); Hopper, 144 Idaho at __, 167 P.3d at 764. 

 

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 While there is no finding by the magistrate, four unrefuted instances of domestic abuse, one of which resulted in 

Kenneth pleading guilty to domestic battery, could lead to the conclusion that he is a habitual perpetrator of 

domestic abuse.

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Also, a visitation order was entered less than two months after Rhonda and Sylvia moved 

to Oregon. Kenneth was afforded the opportunity to have frequent and continuing contact with 

Sylvia, yet he made no effort to contact or visit his child. Once a parent has the opportunity to 

maintain contact with his child, it becomes his responsibility to take advantage of that 

opportunity. See Navarro, 144 Idaho at __, 173 P.3d at 1148 (Eismann, C.J. concurring). 

As such, it was error for the magistrate court to fail to analyze Sylvia’s best interest, to 

refuse to consider the evidence before it, and to determine that Hopper mandated Rhonda and 

Sylvia return to Boise. The magistrate court should have examined all the evidence to determine 

Sylvia’s best interest and reached a supported, well-reasoned conclusion before entering its 

order. Since the court failed in this duty, it abused its discretion. 

3. The magistrate court did not reach its decision through an exercise of reason.

Third, the lack of factual and legal analysis in the magistrate court’s order does not 

indicate that it reached its decision through the exercise of reason. The order fails to show that 

the court used reason. Indeed, the general citation to Hopper may show that it believed the 

decision to grant Kenneth’s motion was mandated. However, when making a custody 

determination the court must elaborate on all the factors it considers, including how a move 

affects a child’s best interest. See Navarro, 144 Idaho at __, 173 P.3d at 1147. 

Therefore, because the magistrate court abused its discretion by failing to recognize that 

it had discretion in the matter, by failing to act consistently with applicable legal standards and 

consistently with the legal standards applicable to the choices before it, and by failing to reach its 

decision through the exercise of reason, we hold the magistrate court abused its discretion. 

Consequently, we reverse the order requiring Rhonda to return to Idaho with her daughter or 

surrender custody of Sylvia and remand to a different magistrate judge. 

B. Kenneth is not entitled to attorney fees. 

Kenneth requests attorney fees pursuant to I.C. § 12-121. Idaho Code § 12-121 

authorizes the award of attorneys fees to the prevailing party if the Court is “left with the abiding 

belief that the appeal was brought or pursued frivolously, unreasonably, and without 

foundation.” Wait, 136 Idaho at 799, 41 P.3d at 227. Here, we reverse the magistrate’s order, so 

Kenneth is not the prevailing party. Therefore, we decline to award attorney fees. 

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III. CONCLUSION 

We reverse the magistrate court’s order as the lower court abused its discretion, and 

remand to another magistrate judge for further consideration. We decline to award Kenneth 

attorney fees. Costs to Appellant. 

Chief Justice EISMANN and Justices J. JONES, W. JONES and HORTON, CONCUR.