Bybee v. Loftus

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 52222

SARA NICOLE BYBEE, )
) Filed: October 1, 2025
Petitioner-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
AUSTIN NIKOLAS LOFTUS, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Respondent-Appellant. )
)

Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Lemhi County. Hon. Stevan H. Thompson, District Judge. Hon. Andrew R. Woolf,
Magistrate.

Memorandum decision of the district court, on intermediate appeal, affirmed in
part, reversed in part, and case remanded.

Murray Ziel & Johnston, PLLC; Alan Johnston, Idaho Falls, for appellant. Alan
Johnston argued.

Smith Woolf Anderson & Wilkinson, PLLC; Aaron J. Woolf, Idaho Falls, for
respondent. Aaron J. Woolf argued.
________________________________________________

HUSKEY, Judge
Austin Nikolas Loftus appeals from the district court’s memorandum decision, on
intermediate appeal, arguing the district court erred in affirming the magistrate court’s first
amended judgment regarding the child custody visitation schedule and support order. Sara Nicole
Bybee argues the district court did not err. For the reasons set forth below, we affirm in part, and
reverse in part, the district court’s memorandum decision and remand the case to the magistrate
court for further proceedings consistent with this opinion.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Bybee and Loftus were never married but are the biological parents of the minor child, I.L.,
born in 2020. Loftus has sole legal and physical custody of his two other children from a previous
marriage. I.L. was born in and resided in Kennewick, Washington with Bybee, Loftus, and the

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other two children from the time of I.L.’s birth until she was approximately three months old, at
which point Bybee took I.L. to Salmon, Idaho for an extended stay. Bybee and I.L. returned to
Washington and lived with Loftus and the two other children for approximately four months. At
that time, Bybee and I.L. returned to Salmon, where they have since continuously resided.
Loftus filed a petition for custody in Washington and Bybee filed a petition for custody in
Idaho, including a request to modify the child support order that had been entered in Washington.1
In order to have regular contact with I.L., Loftus withdrew his petition in Washington, and moved
with his two children to Idaho Falls in February 2022. At that time, the magistrate court entered
temporary orders regarding visitation and required all visitation to occur in Salmon. Although
Loftus had limited contact with I.L. while Loftus resided in Washington, once he relocated to
Idaho, he exercised all his visits as set forth in the temporary order.
A trial was held, and the magistrate court took the matter under advisement and then issued
its findings at a subsequent hearing. The magistrate court awarded the parties joint physical and
legal custody, with Bybee having primary physical custody, and entered a visitation schedule. The
schedule designated two different time periods: the time until I.L. entered kindergarten and the
time after I.L. entered kindergarten in the fall of 2025.2 Prior to I.L. beginning kindergarten, Loftus
was awarded every other weekend, from Friday at 12:00 p.m. until Sunday at 12:00 p.m. with the
first visit of the month to take place in Salmon and the second to take place in Idaho Falls. After
I.L. entered kindergarten, Loftus’s visitation schedule is the same, but all the visits take place in
Idaho Falls. The magistrate court’s oral pronouncement indicated that the “holiday schedule
would be a standard alternating holiday schedule, including Easter, Halloween, July 4th, the week
of Thanksgiving,” and six days for each party during the Christmas break. The written judgment
awarded Loftus visitation on Easter, Father’s Day, July 4th, Halloween, Thanksgiving, and
Christmas. The magistrate court then noted Loftus’s income and Bybee’s voluntary
underemployment, and imputed to Bybee an income consistent with full-time, minimum wage
employment for child support calculations. The magistrate court also ordered Loftus to pay a
portion of Bybee’s attorney fees based solely on the income differential between the parties.

1
A notice and finding of financial responsibility was entered in Washington, requiring
Loftus to pay child support for I.L. in the amount of $683.00 per month. In that order, the State of
Washington imputed an income of $2,080.00 per month to Bybee.
2
The parties agree that I.L. is now in kindergarten.
2
Both parties filed motions for reconsideration. Loftus argued that his visitation should
begin on Thursday evenings because he got off work at approximately 5:00 p.m. on Thursdays and
did not work on Fridays and thus, there was no reason his visitation could not begin Thursday
evenings instead of Fridays at 12:00 p.m. He also requested that all his visitation, both before and
after I.L. entered kindergarten, take place at his home in Idaho Falls. Loftus additionally asked
that all federal holidays be included in the visitation schedule and that the magistrate court impute
to Bybee her historical wage of $12.00 per hour. Finally, Loftus asked the magistrate court to
reconsider the award of a portion of Bybee’s attorney fees. Bybee’s motion for reconsideration
requested that the child support obligation be backdated to the filing of the petition and be subject
to automatic wage withholding, that any person with a valid driver’s license be permitted to
transport I.L. for visitation exchanges, and that a specific smart phone application be required for
the parties’ communications. The magistrate court denied Loftus’s motion for reconsideration and
granted, in part, Bybee’s motion for reconsideration. Specifically, the magistrate court granted
Bybee’s request that the child support award be subject to immediate and automatic wage
withholding and that a person with a valid driver’s license approved by the parent picking I.L. up
could transport I.L. for visitation exchanges. It denied all of Bybee’s other requests.
Loftus appealed. The district court, on intermediate appeal, affirmed the magistrate court
on all issues except the attorney fees request. On that issue, the district court found the magistrate
court erred by relying solely on the income differential and not considering the factors set forth in
Idaho Code § 32-705.3 Loftus appealed.
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.3d
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

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Bybee does not challenge this ruling on appeal.
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findings and conclusions, whether the district court affirmed or reversed the magistrate court and
the basis therefor, and either affirm or reverse the district court.
“Child custody determinations are committed to the sound discretion of the magistrate
judge.” Bartosz v. Jones, 146 Idaho 449, 453, 197 P.3d 310, 314 (2008). Absent an abuse of
discretion, the trial court’s child custody determination will not be overturned. Firmage v. Snow,
158 Idaho 343, 347, 347 P.3d 191, 195 (2015). 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 v. My Fun Life, 163
Idaho 856, 863, 421 P.3d 187, 194 (2018).
When the trial court’s decisions affect children, the best interests of the child is the primary
consideration. Firmage, 158 Idaho at 347, 347 P.3d at 195. Consequently, in matters of child
custody, “Abuse of the trial court’s discretion occurs only when the evidence is insufficient to
support the conclusion that the interests and welfare of the minor children would be best served by
a particular custody award or modification.” Biggers v. Biggers, 103 Idaho 550, 555, 650 P.2d
692, 697 (1982).
III.
ANALYSIS
Loftus argues the district court, on intermediate appeal, erred in affirming the magistrate
court’s first amended judgment on several issues.4 Specifically, Loftus claims the magistrate court
erred by: (1) not considering I.L.’s relationship to her half-siblings when setting the custody and
visitation schedule; (2) failing to set forth a rational basis for the custody and visitation schedule
regarding year round visitation, summer visitation, and holiday visitation; (3) failing to impute
Bybee’s historical wage and instead imputing to her minimum wage; and (4) permitting any person
with a valid driver’s license to transport I.L. for visitation exchanges.

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Some of Loftus’s arguments on appeal implicate the magistrate court’s decision on his
motion for reconsideration. The standard of review for a trial court’s decision on a motion for
reconsideration of a decision is the same standard of review that applies to the trial court’s original
decision. See Burns Concrete, Inc. v. Teton Cnty., 168 Idaho 442, 452, 483 P.3d 985, 995 (2020).
Because the standards of review are the same, our analysis does not distinguish between the
magistrate court’s two decisions.
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Bybee argues the district court did not err in affirming the magistrate court’s order because:
(1) there was little evidence of I.L.’s relationship with her half-siblings but regardless, the
magistrate court considered the evidence presented and, alternatively, the issue is moot; (2) the
location of Loftus’s visitation and the summer visitation schedule are moot; (3) the visitation
schedule regarding school year and holiday visitation is in I.L.’s best interests; (4) there was no
error in not imputing to Bybee her historical hourly wage because Loftus presented no evidence
that Bybee could actually earn that wage; and (5) Loftus exaggerated the risk of harm regarding
anyone with a valid driver’s license transporting I.L. since a parent had to approve of the person
transporting I.L. Bybee also requests attorney fees.
A. Consideration of Idaho Code § 32-717(1)(c)
Loftus argues the district court erred in affirming the magistrate court’s first amended
judgment. Loftus argues the magistrate court disregarded the I.C. § 32-717(1)(c) factor when it
failed to consider I.L.’s relationship with her half-siblings and Loftus’s obligation to those
children. Specifically, Loftus takes issue with the magistrate court’s statement, “I didn’t hear much
about [I.L.’s] relationship with [Loftus’s] other children,” because, Loftus argues, the magistrate
court’s statement ignores the evidence presented to the magistrate court regarding I.L.’s
relationship with her half-siblings. Bybee argues the magistrate court did consider I.L.’s
relationship with her half-siblings but did not give it the weight Loftus wished it would have and
notes that appellate courts are not in a position to re-weigh the evidence.
Idaho Code § 32-717(1) sets forth a non-exhaustive list of factors to be considered by the
magistrate court when determining the best interests of a child pursuant to a custody and visitation
schedule. Subsection (c) requires the court to consider the “interaction and interrelationship of the
child with his or her parent or parents, and his or her siblings.” I.C. § 32-717(1)(c). Loftus argues
the magistrate court’s failure to consider I.L.’s half-siblings and Loftus’s obligation to them
resulted in temporary orders that made it impossible, practically speaking, for Loftus to exercise
visitation. The failure to exercise that visitation, argues Loftus, was counted against him in the
final judgment. Loftus argues that once he moved to Idaho Falls, his other two children had family
and extracurricular activities there and by requiring Loftus to exercise all visitation in Salmon, the
magistrate court did not properly account for the impact on Loftus or his other children. Loftus
requested that all his visitation be exercised in Idaho Falls. This argument applied to the visitation
schedule set for the school year and the summer prior to I.L.’s enrollment in kindergarten.

5
Bybee argues that these arguments are moot because I.L. started kindergarten in the fall
of 2025 and once that occurred, all of Loftus’s visitation will occur in Idaho Falls and he will have
increased time with I.L. in the summer, so he has received the relief he has requested. We agree.
This Court will not address issues that are moot. An issue is moot “when the issues
presented are no longer live or the parties lack a legally cognizable interest in the outcome.”
Farrell v. Whiteman, 146 Idaho 604, 610, 200 P.3d 1153, 1159 (2009)). “An issue is moot if it
presents no justiciable controversy, and a judicial determination will have no practical effect upon
the outcome.” Id. “Mootness also applies when a favorable judicial decision would not result in
any relief.” Fenn v. Noah, 142 Idaho 775, 779, 133 P.3d 1240, 1244 (2006). There are three
exceptions to the mootness doctrine: “(1) when there is the possibility of collateral legal
consequences imposed on the person raising the issue; (2) when the challenged conduct is likely
to evade judicial review and thus is capable of repetition; and (3) when an otherwise moot issue
raises concerns of substantial public interest.” AmeriTel Inns, Inc. v. Greater Boise Auditorium
Dist., 141 Idaho 849, 851-52, 119 P.3d 624, 626-27 (2005).
Whether the magistrate court properly considered I.C. § 32-717(1)(c) in setting the pre-
kindergarten visitation schedule is moot because following I.L.’s enrollment in kindergarten, all
of Loftus’s visitation will take place in Idaho Falls and he will have additional visitation during
the summer. Because Loftus has already received the relief he requested, even if this Court ruled
in his favor on this issue, it would not result in any additional relief. See Farrell, 146 Idaho at 610,
200 P.3d at 1159. As the issues are moot, we will not consider them.
At oral argument, Loftus argued that the magistrate court’s failure to adequately consider
the I.C. § 32-717(1)(c) factor affected the other decisions it made regarding the time of visitation,
the holiday schedule, and who could transport I.L. to visitation. However, we do not read the
briefing to contain such an argument. Instead, the briefing demonstrates that Loftus’s challenges
to those decisions rest on a claim that the magistrate court did not set forth a rational basis for the
schedule when the schedule is not in I.L.’s best interests. Thus, we decline to apply the argument
regarding I.C. § 32-717(1)(c) to the other issues raised in the appeal.
B. Rational Basis
1. The time of regularly scheduled visitation
Loftus argues the district court erred in affirming the magistrate court’s decision that his
visitation should commence on alternating weekends on Friday at 12:00 p.m. and end on Sunday

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at 12:00 p.m. Loftus argues the district court erred in affirming the magistrate court’s visitation
schedule because his work week ends on Thursdays at 5:00 p.m., and the magistrate court did not
articulate a rational basis as to why it was in I.L.’s best interests to commence Loftus’s visitation
on Friday at 12:00 p.m. instead of Thursday evening.
The evidence at trial demonstrated that Loftus worked as a plant shift manager for Idaho
Environmental Coalition, LLC, and his work week was Monday through Thursday, 6:00 a.m. to
5:00 p.m. Loftus testified that having to pick I.L. up at 12:00 p.m. on Fridays for visitation in
Salmon was sometimes a challenge because his other children were in school. Bybee testified that
she was unemployed but was a student studying nursing. Bybee also testified that she had
difficulty seeing in the dark, did not feel that it was safe for her to drive in the dark, and preferred
that visitation exchanges occur during the daytime. Bybee testified that she has no formal
restrictions on her driver’s license that prevent her from driving at night and that no doctor has
prohibited her from driving at night or told her she should not drive at night. Bybee further testified
that sometimes the weather in the winter resulted in more challenging driving conditions. Loftus
testified that Bybee said she was night blind but would nonetheless drive at night. The parties
agreed that the drive time between Salmon and Idaho Falls was more than two hours but less than
three hours.
The magistrate court found:
The parties live a couple of hours apart. There is some concern about travel
time, especially in the winter, for [I.L.] being in the car for a few hours one way, a
few hours the other way, and how often that should happen, trying to balance that
with visitation and also keeping [I.L.’s] best interest at heart.
The magistrate court then set Loftus’s visitation for every other Friday from 12:00 p.m. to
Sunday at 12:00 p.m., with the first visit of the month in Salmon and the second visit in Idaho Falls
until I.L. begins kindergarten and then all visits will take place in Idaho Falls. The current
visitation schedule states: “The receiving parent shall pick up at the beginning of their parenting
time.” Thus, on the weekends Loftus has visitation, he is responsible for picking up I.L. from
Salmon. When I.L. is picked up from Loftus’s house, Bybee is responsible for transporting I.L.
back to Salmon.
The visitation schedule was again addressed at the hearing on the motions for
reconsideration. Loftus again asked that his alternating weekend visitation begin on Thursday
evening, end on Sunday evening, and that it take place in Idaho Falls. Bybee responded that there

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was no reason to expand the visits because “the Court obviously focused on [I.L.’s] best interest”
and that keeping her on the same schedule since the initiation of the temporary order was best for
I.L. Bybee also argued that because Loftus does not get home from work until 6:00 p.m. on
Thursday, by the time he travels to and from Salmon, he would not get back home until
approximately 11:00 p.m., which would be too late for I.L. and disruptive to her schedule. Loftus
responded that the distance was likely only about two and one-half hours and visitation exchanges
like this were rather commonplace. He also noted there was no medical evidence presented that
Bybee had any restriction on her ability to drive at night. The magistrate court denied Loftus’s
request to change the location or time of Loftus’s alternating weekend visitation schedule.
On intermediate appeal, Loftus argued the magistrate court provided no rational basis to
support the alternating weekend visitation schedule. The district court disagreed,5 noting that the
magistrate court considered the distance the parties lived from each other and the impact of travel
time, especially in the winter.
The only reasons given by the magistrate court to explain why it ordered Loftus’s visitation
to begin on Friday at 12:00 p.m. instead of Thursday evening was its goal of limiting the amount
of time I.L. spent driving in a car, “especially in the winter.” However, the magistrate court did
not connect the amount of time I.L. spent in a car to beginning visitation at 12:00 p.m. on Friday
instead of Thursday evening. In fact, the time of visitation has no correlation to the travel time
based on the evidence presented. Put another way, I.L. would spend the same amount of time in
the car traveling between Loftus’s and Bybee’s residences regardless of whether Loftus’s visitation
began on Thursday evening or Friday at 12:00 p.m. Thus, that reason bears no rational relationship
to the ultimate order. As to limiting the amount of time I.L. was in the car during the winter, the
ultimate order similarly has no rational relationship to the stated goal because I.L. spent the same
amount of time in the car driving between Salmon and Idaho Falls regardless of the season. To
the extent the magistrate court was accounting for inclement driving conditions, there was no
evidence presented regarding the driving conditions except Bybee’s statement that winter driving
conditions could be challenging.

5
While we do not detail the district court’s reasoning here, we note that the district court
erred in relying on its personal knowledge of the road and driving conditions as a basis for
affirming the magistrate court’s order as courts cannot substitute their own personal knowledge as
evidence in the case.
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Finally, the magistrate court may have considered that the time for visitation exchange
should occur during the day to accommodate Bybee’s preference to not drive at night. The issue
of whether Bybee had a physical limitation to driving at night as opposed to a preference was
debated by the parties and the evidence was conflicting. The magistrate court made no credibility
findings regarding Bybee’s stated driving limitation. Bybee and Loftus both testified about the
driving limitation, but the magistrate court failed to state which testimony it found more credible
and thus, we are unable to ascertain which facts the magistrate court relied on to support its
conclusion that I.L.’s best interests were better served by scheduling Loftus’s visitation from
Friday at 12:00 p.m. through Sunday at 12:00 p.m. instead of Thursday evening through Sunday
evening. The magistrate court’s conclusion regarding the pick-up and drop-off times do not follow
from the evidence and, therefore, we cannot conclude the magistrate court reached its decision by
an exercise of reason and thus, abused its discretion.
2. Holiday visitation
At trial, Bybee testified that she was agreeable to rotating and sharing holiday visitation
for all the major holidays. Loftus testified that he would like to alternate holidays, without
specifying which holidays. In its findings of fact, the magistrate court found that Bybee was “okay
with the regular holiday schedule.” The magistrate court then ordered that the “holiday schedule
would be a standard alternating holiday schedule, including Easter, Halloween, July 4th, the week
of Thanksgiving--so that Monday through Sunday the week of Thanksgiving. Then for the
Christmas break it would be six days for each party starting December 23rd and going to
January 3rd.”
This schedule was revisited at the hearing on the motions for reconsideration. Loftus noted
that the magistrate court had only awarded a limited number of federal holidays and requested all
federal holidays be included in the schedule, arguing: “There’s obviously a lot of holidays; and I
listed, for example, Labor Day, Presidents’ Day, Memorial Day, when children are off school.
They’re federal holidays . . . . And, Your Honor, I don’t see a good reason not to include those
holidays in the holiday visitation schedule.” The magistrate court denied Loftus’s request to
include all federal holidays. On intermediate appeal, the district court affirmed the magistrate
court’s denial of Loftus’s motion for reconsideration.
Loftus requested that holiday visitation be granted without limitation as to which holidays
be included. Bybee and Loftus agreed that all major holidays should be shared. The magistrate

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court then ordered the “standard alternating holiday schedule,” but did not define that term.
However, the magistrate court, in its order, awarded visitation as to some, but not all federal
holidays. Loftus, on reconsideration, asked for all federal holidays, though discussing a few
specifically. The magistrate court denied the request for inclusion of all holidays. There is no
evidence in the record that would support awarding some but not all holidays in the visitation
schedule. Since the magistrate court’s limitation of holiday visitation to some but not all holidays
is not supported by any evidence, we conclude that the magistrate court abused its discretion in
exercising reason.
3. The transportation of I.L. for visitation exchanges
In Bybee’s motion for reconsideration, she requested the visitation order be modified to
permit any person with a valid driver’s license to pick up I.L. for visitation exchanges. Loftus
objected. The magistrate court granted that request but ordered the driver be approved by the
parent picking up I.L. On intermediate appeal, the district court affirmed the magistrate court,
concluding that because the parent would need to approve of the person picking up I.L., the
condition was sufficiently narrow to ensure I.L.’s safety.
Loftus appeals, arguing it is not in I.L.’s best interests to allow “anyone with a valid driver’s
license” to transport I.L. because that category is too broad and includes “inherently irresponsible
people.” Bybee argues the district court did not err in affirming the magistrate court because the
provision is narrowly tailored, and because the magistrate court found that both parties were
suitable parents, it is unlikely that either of the parties would allow an inappropriate person to
transport I.L.
The magistrate court did not abuse its discretion in granting Bybee’s request. Bybee argued
such a modification was in I.L.’s best interests because it provided more flexibility for both parties
and helps ensure visitation exchanges occurred in a timely fashion. Although Loftus speculates
that an inappropriate person may be selected, the magistrate court found, generally, that both
parents exercised appropriate care of I.L. Based on the evidence, the magistrate court exercised
reason in acting within the bounds of its discretion.
C. The Child Support Determination
Loftus argues the magistrate court erred in imputing only the minimum wage to Bybee for
child support calculations because Bybee was voluntarily underemployed, had a history of making
$12.00 per hour as an advanced phlebotomist, had a certified nursing assistant (CNA) license but

10
decided not to renew it, had an associate’s degree in biology, and thus, was capable of working.
Bybee argues the magistrate court did not err because Bybee was a full-time student and the income
which Loftus wanted to attribute to her was from 2017, and there was no evidence she could obtain
that employment or that salary in Salmon. The magistrate court found there was a child support
order from Washington that required Loftus to pay approximately $600 a month. The magistrate
court’s factual findings related to Bybee’s potential income are as follows: “Right now [Bybee]
is not working, and the Court finds it to be appropriate to impute her income as minimum wage.”
The magistrate also found, “[Loftus] started out--the Court finds that he makes $63 an hour and he
does work full-time.”
The amount of child support is calculated in accordance with the Idaho Child Support
Guidelines. I.R.F.L.P 120(a). Idaho Rule of Family Law Procedure 120(e) sets forth definitions
of income, but at issue here is the definition of potential income once a court determines that a
party is voluntarily unemployed or underemployed. Idaho Rules of Family Law Procedure
120(e)(3)(A)(i) and (ii) provides:
Determination of potential income will be made according to any or all of the
following methods, as appropriate:
(i) Determine employment potential and probable earnings level based on the
parent’s work history, qualifications, and job opportunities and earnings
levels in the community.
(ii) Where a parent is a student, potential monthly income during the school
term may be determined by considering student loans proceeds from any
source that are distributed to the student and are used for expenses other
than education.
At the hearing on the motions for reconsideration, Loftus asked the magistrate court to
reconsider Bybee’s income, arguing that Bybee could have renewed her CNA license and then
would have income that Loftus estimated to be about $28,000.00. Loftus also argued that wages
in Salmon were higher than minimum wage and asked that $12.00 per hour be imputed to Bybee.
Bybee objected, arguing that there was no evidence before the magistrate court to allow the
magistrate court to impute anything other than minimum wage because, “The Court can’t just
assume there’s jobs available. Evidence has to be presented.” The magistrate court declined to
reconsider the imputed minimum wage, and that order was affirmed on intermediate appeal.
Here, the magistrate court’s determination to impute minimum wage cannot be tied to, nor
did the magistrate court reference, which factor(s) set forth in I.R.F.L.P. 120(e)(3)(i) or (ii) was
employed in making the determination. Without any reference to the rule or the factors, and with

11
the evidence supporting more than one determination, we cannot conclude the district court
reached its decision by an exercise of reason and reverse the magistrate court’s order imputing the
minimum wage to Bybee.
D. Attorney Fees
Loftus argues that Bybee should not have been awarded attorney fees in the magistrate
court. The district court reversed the magistrate court’s award of attorney fees to Bybee based
solely on the income disparity between the parties. Neither party appealed that finding; as such,
the award of attorney fees in magistrate court is not before this Court.
Bybee requests attorney fees on appeal pursuant to I.C. § 12-121. An award of attorney
fees may be granted under I.C. § 12-121 and Idaho Appellate Rule 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. Loftus’s appeal was not brought frivolously,
unreasonably, or without foundation. Consequently, we decline to award attorney fees to Bybee.
Loftus did not request attorney fees on appeal. As neither party is the prevailing party, we do not
award costs.
IV.
CONCLUSION
Loftus’s claims regarding the consideration of siblings factor in I.C. § 32-717(1)(c) and the
pre-kindergarten visitation in Salmon and summer schedule are moot. The district court erred in
affirming the magistrate court’s order on the time of visitation, the designation of the federal
holidays, and the calculation of child support. The district court did not err in affirming the
magistrate court’s order regarding who may transport I.L. Consequently, the order of the district
court is affirmed in part, reversed in part, and the case is remanded for further proceedings
consistent with this opinion. Neither party is awarded attorney fees or costs.
Chief Judge GRATTON and Judge TRIBE, CONCUR.

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