1

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 49320

ERIN SUE CARVER,

fka ERIN SUE HORNISH,

 Petitioner-Appellant,

v.

WILLIAM EUGENE HORNISH, JR.

 Respondent.

_______________________________________

)

)

)

)

)

)

)

)

)

)

)

Boise, February 2022 Term

Opinion Filed: October 18, 2022

Melanie Gagnepain, Clerk

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

Ada County. Michael Dean, Magistrate Judge.

The decision of the magistrate court is affirmed.

Breen Ball & Marelius, PLLC, Boise, for Appellant. M. Sean Breen argued.

Goss Gustavel Goss, PLLC, Boise, for Respondent. Geoffrey E. Goss argued.

_____________________

BRODY, Justice.

This case addresses the subject matter jurisdiction of the magistrate court in a divorce 

action when a minor is emancipated as a result of her marriage. Erin Carver alleges that her exhusband, William Hornish, consented to the marriage of their 16-year-old daughter (“Daughter”)

in order to legally emancipate her and circumvent custody provisions in the parties’ divorce decree. 

Carver learned of the alleged scheme before it was accomplished and filed a motion to prevent 

Hornish from exercising legal authority to consent to Daughter’s marriage. However, the 

magistrate court did not rule on the motion before Daughter was married. Carver argues on appeal 

that the motion should have been granted retroactively, effective to a date before the marriage or, 

in the alternative, the statute allowing a minor to marry with the consent of only one parent should 

be declared unconstitutional. For the reasons below, we reject both arguments and affirm the 

magistrate court’s decision to dismiss Carver’s verified petition to modify the judgment and decree 
2

of divorce and the counterpetition filed by Hornish.

I. FACTUAL AND PROCEDURAL BACKGROUND

Carver and Hornish were divorced in 2012 and the parties were awarded joint custody of 

their three minor children. In July 2021, Carver filed a petition in the magistrate court to modify 

the divorce decree (which had been previously modified in 2014) to obtain primary physical 

custody of 16-year-old Daughter, their only child who still remained a minor. Carver argued the 

modification was necessary because Hornish planned to move to Florida for his work. 

Hornish filed an answer and counterpetition two days later, asking that he be awarded 

primary custody of Daughter. According to the counterpetition, Daughter wanted to move with 

Hornish to Florida. A week later, Hornish filed a motion for temporary orders seeking the

immediate authority to move with Daughter and enroll her in high school in Florida.

Five days after Hornish filed his motion for temporary orders (and before a ruling by the 

magistrate court), Carver filed a petition under Idaho Code section 32-11-308 for expedited 

enforcement of the alternating-week custody schedule set out by the 2012 divorce decree. Hornish 

was supposed to have transferred Daughter to Carver the day before but had not because he had 

left for Florida, taking Daughter with him. The magistrate court held a hearing on the petition for

expedited enforcement. At the hearing, Hornish’s counsel acknowledged that Hornish had left 

Idaho with Daughter but assured the magistrate court that Daughter would be flown back to Idaho

within a few days. Daughter returned to Idaho four days later.

Carver then filed a cross-motion for temporary orders seeking primary custody of Daughter 

during the pendency of her petition to modify the divorce decree. The magistrate court held a 

hearing to consider Hornish’s motion for temporary orders, Carver’s cross-motion for temporary 

orders, and two motions for contempt stemming from Hornish’s having taken Daughter out of 

Idaho. The magistrate court denied Hornish’s motion for temporary orders and granted Carver’s

cross-motion, reasoning that Daughter should stay in Idaho until more information about her best 

interests could be developed at trial:

[T]he request to move [Daughter] to Florida is a rather drastic request in my mind. 

It removes her out of the state where she has been residing for a lengthy period of 

time. It moves her to a place where maybe there is some support, but the Court’s 

not aware of the extent of that support there. That’s something that I think the Court 

would need to hear more about and I think during a full trial rather than in temporary 

motions. 

The magistrate court then scheduled a two-day trial for late March 2022.
3

On October 27, 2021, Carver filed a new motion for temporary orders under Idaho Rule of 

Family Law Procedure 504. The next day, she filed another motion, largely identical in substance, 

but seeking immediate ex parte relief under I.R.F.L.P. 505. In these motions, Carver alleged 

Hornish was trying to arrange a sham marriage which would legally emancipate Daughter and strip

the magistrate court of jurisdiction over her custody. In the verified I.R.F.L.P. 505 motion, Carver 

stated that she received a call from a woman in Florida whose 18-year-old son Patrick was an 

acquaintance of Daughter. According to the woman, Daughter had offered to do Patrick’s high 

school homework if he would marry her. The woman said she spoke with Hornish, and he approved 

of this plan. Further, the woman stated that when she told Hornish that Patrick would not 

participate, Hornish replied that he would “get Nick to do it,” apparently referring to another boy 

or young man in Florida. 

Along with the October 27 motion for temporary orders (the I.R.F.L.P 504 motion), Carver 

had also filed a motion to shorten time and have a hearing on the matter on November 9, 2021. 

The magistrate court granted this motion on October 29, 2021, but it did not take any action 

regarding the October 28 motion for ex parte temporary orders. However, the magistrate court 

granted Carver’s ex parte motion on November 5, 2021, holding that “[b]oth the child and 

Petitioner would suffer irreparable harm” if the alleged sham marriage were to occur. 

On November 8, the parties submitted a flurry of filings, not all of which are in the record 

on appeal. These appear to have begun with a motion by Hornish (not in the record) to dismiss 

Carver’s July 13 petition on the basis that Daughter had been married in Canyon County on

November 1, 2021, to a person (“Husband”), who was neither Patrick nor Nick. Daughter was just 

under seventeen years old at the time of the marriage. In response to Hornish’s motion to dismiss, 

Carver apparently filed a motion (also not in the record) requesting that the magistrate court reissue 

the November 5 order nunc pro tunc to October 28, 2021, and a separate motion to annul 

Daughter’s marriage pursuant to Idaho Code section 32-501. Hornish then filed an objection to the 

motion to annul. 

The magistrate court held a hearing the next day (November 9, 2021). The court explained 

that it had not seen the ex parte motion until November 5, due to a delay in the electronic filing 

system or an oversight on its own part. Further, although it had granted the ex parte motion 

immediately upon seeing it, the magistrate court expressed doubt whether it had the authority to 

reissue the order nunc pro tunc to an earlier date. The magistrate court then ordered the parties to 
4

submit briefs regarding its nunc pro tunc authority and scheduled another hearing.

The magistrate court orally ruled on Hornish’s motion to dismiss at a hearing on November 

19. The magistrate court held it did not have the authority to reissue the November 5 order nunc 

pro tunc because it had not seen the motion before that date. Thus, the magistrate court reasoned

that Daughter’s marriage on November 1 was valid, that it no longer had jurisdiction over her 

custody, and that it was required to grant Hornish’s motion to dismiss. 

The magistrate court entered judgment in favor of Hornish on November 23, 2021. The

same day, it issued an order granting an immediate permissive appeal to this Court under Idaho 

Appellate Rule 12.1. Carver timely appealed. After oral arguments before this Court, the parties 

were ordered to submit supplemental briefs.

II. STANDARD OF REVIEW

Unless a factual challenge to jurisdiction has been raised, the decision to dismiss an action 

for lack of jurisdiction is reviewed applying “the same standard of review we apply to a motion 

for summary judgment. After viewing all facts and inferences from the record in favor of the nonmoving party, the Court will ask whether a claim for relief has been stated.” Emps. Res. Mgmt. Co. 

v. Ronk, 162 Idaho 774, 777, 405 P.3d 33, 36 (2017) (quoting Joki v. State, 162 Idaho 5, 8, 394 

P.3d 48, 51 (2017)). 

III. ANALYSIS

A. We affirm the dismissal of Carver’s petition because the magistrate court lacked 

subject matter jurisdiction over Daughter’s custody and jurisdiction would not have 

been restored by granting Carver’s motion for nunc pro tunc relief.

The magistrate court held that it was required to dismiss Carver’s petition to modify the 

custody provisions of the parties’ divorce decree and the counterpetition filed by Hornish because 

Daughter was emancipated by her marriage on November 1, 2021, and it no longer had jurisdiction 

over her custody. It concluded that Hornish had authority under Idaho Code section 32-202 to 

consent unilaterally to Daughter’s marriage and—although it would have granted Carver’s October 

29 ex parte motion to suspend Hornish’s authority to consent if it had seen the motion in time—

the magistrate court held that it could not retroactively grant Carver’s requested relief. Specifically, 

the magistrate court held it was not empowered under the doctrine of nunc pro tunc to make the 

motion effective on any date before November 5 (when it first became aware of the motion), 

because “[t]he function of a nunc pro tunc entry is to make a record of something that was done 

and not recorded. It cannot be used to show action which was not, in fact, taken.”
5

Before addressing Carver’s nunc pro tunc argument, it is important to take up the 

magistrate court’s subject matter jurisdiction. In a divorce action, the magistrate court only has 

subject matter jurisdiction to determine the custody of “children of the marriage[.]” I.C. § 32-717 

(emphasis added). When a child reaches the age of majority, Arkoosh v. Arkoosh, 66 Idaho 607, 

611, 164 P.2d 590, 591 (1945), is emancipated by marriage, I.C. § 32-202, or is emancipated by 

legal proceeding, Embree v. Embree, 85 Idaho 443, 449–50, 380 P.2d 216, 220 (1963), he or she 

is no longer a “chil[d] of the marriage” that the magistrate court can direct custody of in a divorce 

action. See I.C. §§ 32-717; 32-101; see also I.C. § 32-1007 (“The father and mother of a legitimate 

unmarried minor child are equally entitled to its custody[.]”) (emphasis added). Here, Daughter 

was emancipated by her marriage on November 1, 2021. Because of this, she is no longer an 

“unmarried minor child” subject to the magistrate court’s jurisdiction in the divorce action. 

Carver’s primary argument on appeal concerns the magistrate court’s interpretation of the 

doctrine of nunc pro tunc. “Nunc pro tunc” is Latin meaning “now for then.” Nunc pro tunc, 

Black’s Law Dictionary (11th ed. 2019). An order entered nunc pro tunc has legal effect retroactive 

to a specified date. Id. Carver asserts that the magistrate court understood its nunc pro tunc 

authority too narrowly. While the magistrate court concluded that nunc pro tunc relief is limited

to technical corrections in the record, Carver argues the doctrine reaches further. Citing Mitchell 

v. Overman, 103 U.S. 62, 64–65 (1880), she maintains that omitted judicial action may be 

retroactively supplied if the fault for failing to timely act lies with the court and the interests of 

justice require a retroactive remedy.

The premise underlying Carver’s nunc pro tunc argument is that a “retroactive order would 

strip [Hornish] of his legal authority to consent and thus, as a matter of law, the marriage would 

[be] declared null and void.” But that is not so. Although issuing Carver’s ex parte order nunc pro 

tunc would have retroactively nullified Hornish’s consent to the marriage, it would not, by 

operation of law, have nullified the marriage. 

Carver’s assertion to the contrary fails to account for the difference between void and 

voidable marriages. A void marriage is one that is incapable of being valid. See 55 C.J.S. Marriage

§ 51. Generally, a marriage is not void unless a “statute clearly indicates a legislative intention to 

nullify such marriages” ab initio and in all instances. Id. By contrast, a marriage that is capable of 

being ratified is merely voidable. Id. Importantly, while a void marriage cannot be given any legal 
6

effect, “a voidable marriage is valid unless and until it is adjudicated a nullity, and thus remains 

valid for all civil purposes until annulled . . . .” Id. (footnote omitted).

The only marriages clearly declared void by the Idaho legislature are incestuous and 

polygamous marriages. See I.C. §§ 32-205, 32-207. Furthermore, the marriage of a 16- or 17-yearold without parental consent can be ratified. See I.C. § 32-501 (providing that such a marriage 

cannot be annulled if “after attaining the age of consent, [the party on whose behalf an annulment 

is sought] for any time freely cohabits with the other”). Consistent with this, the U.S. District Court

for the District of Idaho has held that the marriage of a minor without valid parental consent is 

voidable, not void. See Mays v. Folsom, 143 F. Supp. 784, 786 (D. Idaho 1956). We hold the same. 

Accordingly, even if the magistrate court were to have retroactively invalidated Hornish’s 

consent by granting Carver’s motion nunc pro tunc, Daughter’s marriage would, at best, have been 

rendered voidable. Because a voidable marriage remains valid until annulled—and Daughter’s 

marriage was not annulled—the magistrate court lacked jurisdiction over Daughter’s custody 

regardless of its disposition of Carver’s motion for nunc pro tunc relief. Therefore, we affirm the 

magistrate court’s dismissal of Carver’s petition for lack of jurisdiction, and we need not address 

whether the magistrate court’s nunc pro tunc ruling was correct.

B. We decline to rule on the constitutionality of Idaho Code section 32-202.

As an alternative to her nunc pro tunc argument, Carver raises a constitutional challenge to 

Idaho Code section 32-202, which governs the issuance of marriage licenses. That statute provides

that a minor may be issued a marriage license, provided that the age difference between the

prospective spousesis no greater than three years, both are at least 16 years old, and written consent 

is provided “by the father, mother, or guardian” of any minor seeking a license. I.C. § 32-202. 

The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, 

or property, without due process of law.” This guarantee “includes a substantive component that 

‘provides heightened protection against government interference with certain fundamental rights 

and liberty interests.’ ” Troxel v. Granville, 530 U.S. 57, 65 (2000) (quoting Washington v. 

Glucksberg, 521 U.S. 702, 719 (1997)). The right of parents to make decisions regarding the care, 

custody, and control of their children is one such fundamental right. Id.; Leavitt v. Leavitt, 142 

Idaho 664, 670, 132 P.3d 421, 427 (2006). Carver urges this Court to declare Idaho Code section 

32-202 unconstitutional because the statute permitted a marriage license to issue to Daughter with 
7

only Hornish’s parental consent, thereby allowing her own parental rights to be effectively 

terminated without due process.

Carver’s argument raises important constitutional questions about the provision of section 

32-202 that allows a minor to marry with only one parent’s consent—a part of the statute we note 

was first enacted a century ago and has remained unchanged since. See 1921 Idaho Sess. Laws 

492. The marriage of a 16- or 17-year-old implicates numerous overlapping and potentially 

conflicting interests—especially when two fit parents share custody of the minor pursuant to a 

divorce decree. These include the fundamental rights of each parent, the interest of the minor in 

her self-determination, the interests of the judiciary in seeing that its orders are not thwarted, and 

the interest of the state as parens patriae in assuring the welfare of children within its jurisdiction. 

Most states that allow minors to marry have enacted statutes that seek to balance at least 

some of these interests. For example, Utah law provides that “if the parents of the minor are 

divorced and have been awarded joint custody . . . , consent shall be given by the parent having 

physical custody of the minor the majority of the time . . .” Utah Code § 30-1-9. Arkansas law

provides that the consent of both parents is required, unless the parents are divorced and one has 

been awarded sole legal custody. See Ark. Code § 9-11-102. New Mexico law provides that the 

consent of both parents is required, unless one parent consents and a district court has determined 

that good cause for issuing a license has been shown. N.M. Stat. § 40-1-6. North Carolina law 

provides that a minor may be issued a license without either parent’s consent, if a court concludes 

that the best interests of minor would be served by the marriage, after a hearing at which the minor 

is represented by a guardian ad litem and the parents’ opinion about the minor’s best interests are 

considered. N.C. Gen. Stat. § 51-2.1. Other approaches abound. However, for the reasons below, 

we decline to consider whether Idaho Code section 32-202 is unconstitutional for its failure to 

include any provision like these.

We require that issues be raised below to be heard on appeal. State v. Garcia-Rodriguez, 

162 Idaho 271, 275, 396 P.3d 700, 704 (2017) (quoting Nelson v. Nelson, 144 Idaho 710, 714, 170 

P.3d 375, 379 (2007) (“We have long held that ‘[a]ppellate court review is limited to the evidence, 

theories and arguments that were presented below.’ ”)). The rule fosters the full testing of issues 

by the adversarial process, ensures that factual records are fully developed, aids the Court in the 

correct resolution of cases through “the refinement of . . . arguments on appeal and the wisdom of 

the trial court in deciding the matter in the first instance,” and serves interests of efficiency and 
8

finality. See State v. Howard, 169 Idaho 379, 496 P.3d 865, 871 (2021). Here, because Carver 

failed to raise the constitutionality of section 32-202 below, we decline to address it now. 

We acknowledge this rule is not absolute. For instance, in the criminal context, we allow 

issues to be raised for the first time on appeal under the fundamental error doctrine. See State v. 

Perry, 150 Idaho 209, 220, 245 P.3d 961, 972 (2010). And although we do not apply the 

fundamental error doctrine in civil cases, Ballard v. Kerr, 160 Idaho 674, 711, 378 P.3d 464, 501 

(2016), it is widely held that the preservation requirement is “not inflexible” in civil cases under 

exceptional circumstances. See Youakim v. Miller, 425 U.S. 231, 234, (1976); Hormel v. 

Helvering, 312 U.S. 552, 557 (1941) (“There may always be exceptional cases or particular 

circumstances which will prompt a reviewing or appellate court, where injustice might otherwise 

result, to consider questions of law which were neither pressed nor passed upon by the court or 

administrative agency below.”).

We considered whether an exception was warranted in this case. Foremost, the

constitutional concerns implicated by Carver’s argument are compelling. To that end, we ordered 

supplemental briefing on the matter after we found the parties’ initial briefing and oral arguments 

on the issue to be lacking. Further, though it has not been proven that the marriage was a sham 

perpetrated to deprive the magistrate court of jurisdiction, Carver’s allegation to this effect is 

troubling if true.

Moreover, we are reluctant to hold that the constitutional issue was not preserved since 

Hornish failed to assert forfeiture as a defense on appeal. Hornish did not address Carver’s 

constitutional argument at all in his respondent’s brief and counsel declined to provide a 

substantive response to the Court’s questions about the constitutionality of section 32-202 during

oral arguments. When supplemental briefing was ordered Hornish again did not assert forfeiture

as a defense, opting instead to take the implausible position that the Court raised the

constitutionality of section 32-202 sua sponte:

Here, neither [Carver] nor [Hornish] challenged the constitutionality of Idaho Code 

section 32-202. Rather, the issue of constitutionality was raised for the first time at 

oral argument by this Court. It is [Hornish]’s position that the issue of 

constitutionality is not properly before this Court because it had not previously been 

raised, at any stage, by either party.

This Court’s precedent is clear that this Court will not raise constitutional challenges sua sponte. 

See In Re Brainard, 55 Idaho 153, 39 P.2d 769, 771 (1934) (“Based upon firm grounds of public 
9

policy, this court has ofttimes reiterated that the constitutionality of an act or statute will not be 

determined in any case, unless such determination is absolutely necessary in order to determine 

the merits of the case in which the constitutionality of such statute has been drawn in question.”)

Given our precedent and the ease with which the central premise of this argument can be dispelled

by reading Carver’s opening brief—which contains a section dedicated to the constitutional issue 

under a bold-lettered subheading—this argument is fallacious.

Nevertheless, we hold this is not a case where an exception to the preservation requirement 

is warranted. First, although the constitutional issue was clearly raised in Carver’s opening brief, 

her argument was cursory, and she never raised a constitutional argument before the magistrate 

court. Furthermore, like Hornish’s counsel, counsel for Carver did not provide any substantive 

response to the Court’s questions on the issue during oral arguments. In considering whether 

Carver should benefit from an exception to general requirement of issue preservation, it is 

significant that once she raised the issue, she failed to seriously press it absent an order from the 

Court.

In addition, we cannot say that Idaho Code section 32-202 is clearly unconstitutional. 

Regarding waiver and forfeiture in the federal courts, the Supreme Court of the United States has 

declined to articulate a “general rule” when arguments that are raised for the first time on appeal 

should be considered, but it has noted that consideration is appropriate where “the proper 

resolution is beyond any doubt.” See Singleton v. Wulff, 428 U.S. 106, 121 (1976) (citing Turner 

v. City of Memphis, 369 U.S. 350 (1962)). 

This leads to another point that strongly counsels against considering Carver’s 

constitutional argument. Declaring section 32-202 unconstitutional would not automatically 

nullify Daughter’s marriage any more than would granting Carver’s request for nunc pro tunc 

relief. To avoid the necessity of an annulment action, we would have to ignore or declare 

unconstitutional the principles discussed above regarding void and voidable marriages. If we were 

to do so, we would, in the same stroke, foreclose any opportunity for Husband to protect his own 

interests by defending against the annulment. We do not suggest that Husband has a protectable 

interest in marrying Daughter for the purpose of defeating the magistrate court’s jurisdiction. But 

it has not been proven that the marriage was orchestrated for this purpose and the record discloses 

nothing about the relationship between Daughter and Husband before the marriage, or Husband’s 

decision to marry Daughter, or the relationship between Daughter and Husband since their
10

marriage. Furthermore, even in the absence of a genuine relationship between the two, the marriage

may have caused, by operation of law, an entanglement of Daughter’s and Husband’s legal rights 

and interests such that prejudice would result if the marriage were suddenly undone in an action 

to which Husband is not a party. Finally, nothing in Idaho Code section 32-105 suggests a lawful 

marriage between properly consenting persons can be voided merely because it is a sham marriage 

or designed to terminate a court’s jurisdiction. 

In sum, this case presents an important question about the constitutionality of Idaho Code 

section 32-202, but it is not an appropriate case to answer the question. The issue was not presented 

below, the arguments of both parties on appeal are lacking, and if we declared the statute 

unconstitutional it would have no effect unless we also jettisoned the longstanding distinction 

between void and voidable marriages and imperiled potential rights of Husband. Thus, we decline 

to consider whether section 32-202 is unconstitutional.

C. Neither party is entitled to attorney fees on appeal. 

Idaho Rule of Family Law Procedure 902 provides that attorney fees may be awarded

“when provided for by any statute or contract.” I.R.F.L.P 902(a) (formerly I.R.F.L.P. 908). Both 

parties argue they are entitled to attorney fees under this rule in conjunction with Idaho Code 

section 12-121. That statute provides, “[i]n any civil action, the judge may award reasonable 

attorney’s fees to the prevailing party or parties when the judge finds that the case was brought, 

pursued or defended frivolously, unreasonably or without foundation.” I.C. § 12-121.

Carver is not entitled to attorney fees because she is not the prevailing party. 

Hornish argues he is entitled to attorney fees because Carver “merely invit[ed] this Court 

to second-guess the trial court,” and she made “no cogent legal argument justifying a reversal of 

the magistrate’s decision.” Though Carver’s nunc pro tunc argument failed to account for the 

difference between void and voidable marriages, she raised a legitimate question about the scope 

of the magistrate court’s authority supported by relevant authority. As to the constitutional issue, 

Carver’s initial argument was cursory, but cogent. Therefore, we hold that Hornish is not entitled 

to attorney fees.

IV. CONCLUSION

The decision of the magistrate court dismissing Carver’s petition is affirmed. Neither party 

is entitled to attorney fees. Costs on appeal are awarded to Hornish under Idaho Appellate Rule 

40.
11

Chief Justice BEVAN, and Justice ZAHN CONCUR.

MOELLER, J., dissenting.

I acknowledge the well-reasoned and principled positions taken by both the magistrate 

court and my esteemed colleagues in the majority. They have acted consistently with their view 

of the law. Nevertheless, I write briefly to dissent from the majority’s opinion. Simply put, I believe 

the trial court had options available to it that would have allowed it to address the outrageous 

actions of a father who apparently consented to the sham marriage of his 16-year-old daughter 

(“Daughter”) simply to gain an advantage over his ex-spouse in a custody case. 

I will limit this discussion to the facts recited by the majority. The record in this case 

demonstrates that one of the parties in this case, Hornish (“Father”), repeatedly ignored existing 

court orders and acted unilaterally to undermine the court’s authority. Carver (“Mother”) had 

initiated an action to obtain primary physical custody of Daughter. In the midst of this hotly 

contested custody dispute, Father filed a motion seeking permission to move Daughter to Florida. 

Although the court had not yet ruled on his motion, and despite the fact that he was scheduled to

transfer Daughter back to Mother, Father left for Florida with Daughter. When the hearing on 

Father’s motion took place, Father admitted that he had already removed Daughter from Idaho but 

promised the court that he would bring her back. Four days later he returned to Idaho with 

Daughter. At a later hearing, the magistrate court ruled that Daughter should remain in Idaho until 

trial, which was scheduled to take place in March 2022, about five months later.

On October 28, 2021, Mother filed an emergency motion seeking ex parte relief. Mother 

alleged that she had been made aware that Father was attempting to arrange a marriage of Daughter 

with an 18-year-old classmate, apparently in an attempt to frustrate Mother’s custody case by 

emancipating Daughter through marriage. While this motion was pending, but before the 

magistrate court could sign the proposed order, Daughter was married on November 1, 2021, in 

Idaho to a different person than the one named in Mother’s affidavit. His age is not disclosed in 

the record. The marriage was only possible because Father had granted permission for his minor 

child to marry. 

Unfortunately, by the time the court eventually granted Mother’s motion for ex parte relief 

on November 5, 2021, the marriage had already taken place. The record suggests that Father must 

have been aware of the pending motion to halt the marriage at the time he consented to it because 

the motion was filed three days earlier. Upon hearing Mother’s subsequent motions to make the 
12

November 5, 2021, order retroactively effective (“nunc pro tunc”), the magistrate court concluded 

that nothing could be done at this point, allowed the marriage to stand, and dismissed Mother’s 

custody action. The majority has affirmed those decisions.

Just as parents are expected to act in their children’s best interests, they are also expected 

to respect the court’s role in defining those best interests. Here, Father’s actions in this case show 

a strong proclivity to do neither. At least twice in this case Father acted unilaterally in making 

decisions for Daughter knowing full well that (1) there were pending motions concerning those 

decisions, (2) his unilateral actions disregarded Mother’s wishes, and (3) his actions frustrated the 

court’s ability to grant relief and enforce its own orders. Importantly, these were not life or death 

decisions concerning Daughter’s health that needed to be made without notice to Mother; rather, 

these were tactical decisions made to enhance Father’s position in the ongoing custody litigation. 

By so doing, Father has openly flouted the court’s role in acting in Daughter’s best interests. 

Additionally, Father has not only made a mockery of our marriage laws, he has also exposed his 

16-year-old Daughter to the potential life altering consequences of an ill-conceived and hasty 

marriage of convenience. 

Had the magistrate court granted Mother’s request to make the November 5, 2021 order 

retroactive, it could have appointed counsel for Daughter and set the matter for an immediate 

evidentiary hearing. An evidentiary hearing would have answered many questions about the 

parties’ intent, their good or bad faith, and allowed the court to make a “best interests” 

determination concerning Daughter’s interests. An evidentiary hearing would likely have given 

everyone an opportunity to reflect on the magnitude of the hasty decisions made, and whether they 

should be allowed to stand. Alternatives to emancipation through marriage could have been 

negotiated. Additionally, it would have allowed time for Mother, acting as the custodial parent, to 

properly pursue an annulment action under Idaho Code section 32-501. In short, rather than 

treating Father’s unilateral actions as a fait accompli, the trial court could have prevented this 

outcome if it had reacted accordingly. An evidentiary hearing would likely have clarified the legal 

issues at stake and created a better record in the event of an appeal.

We have frequently noted that our magistrate judges are endowed with considerable 

discretion when it comes to child custody questions. Johnson v. Murphy, 167 Idaho 167, 169, 468 

P.3d 297, 299 (2020) (“Decisions as to the custody, care, and education of the child are committed 

to the sound discretion of the trial court and they will be upheld on appeal unless there is a clear 
13

showing of abuse of that discretion.”) (citing Martinez (Portillo) v. Carrasco (Mendoza), 162 

Idaho 336, 345, 396 P.3d 1218, 1227 (2017)) . Such discretion would surely cover the decision of 

whether a father could consent to a child’s marriage when (1) a specific motion is pending on 

whether to block the father from granting consent and (2) a trial is pending concerning the custody 

of that child. 

While I have few issues with the majority’s view of this case, I merely write to illustrate 

what could have or should have been done in the immediate aftermath of Father’s actions. These 

were actions that appear directly calculated to divest the magistrate court of its jurisdiction to 

protect a child. Although Idaho Code section 32-202 may have allowed Father to unilaterally 

consent to the marriage, I do not believe that this ends the discussion. If such consent is granted 

during a pending child custody action, and under the concerning circumstances present here, I 

think the court already charged with safeguarding the bests interests of the child should have 

weighed in on the matter. I believe this is especially true where the Father’s actions appear to be 

self-serving in that they granted him a tactical advantage in the pending matter at the expense of 

his child’s welfare. 

Therefore, given the special role that our magistrate judges play in adjudicating custody 

disputes and safeguarding children, I do not believe it would have been an abuse of discretion for 

the magistrate court—acting in the bests interest of the child and in defending the integrity of the 

judicial system—to issue its order of November 5, 2021, nunc pro tunc and then sort the remaining 

matters out as outlined. For these reasons, I respectfully dissent.

STEGNER, J., CONCURS.