Bautista v. Vowels

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 51618

MIA M. BAUTISTA, fka MIA M. )
VOWELS, ) Filed: June 26, 2024
)
Petitioner-Respondent, ) Melanie Gagnepain, Clerk
)
v. ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
NATHAN VOWELS, ) BE CITED AS AUTHORITY
)
Respondent-Appellant. )
)

Appeal from the Magistrate Division of the District Court of the Second Judicial
District, State of Idaho, Latah County. Hon. Jeff P. Payne, Magistrate.

Judgment regarding modification of child custody, affirmed.

Bevis, Thiry, Henson & Katz, P.A.; Philip M. Bevis, Boise, for appellant.

Cosho Humphrey, LLP; Mackenzie E. Whatcott, Boise, for respondent.
_______________________________________________
LORELLO, Judge
Nathan Vowels appeals from the judgment regarding modification of child custody. We
affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2019, Vowels and Mia M. Bautista, fka Mia M. Vowels, divorced pursuant to a
stipulated judgment and decree of divorce. The parties have three children: L.V., born in 2008;
N.V., born in 2010; and M.V., born in 2010. At the time the divorce decree was entered, Vowels
was living in Princeton, Idaho, while Bautista and the three children lived in Moscow, Idaho. Two
years after the divorce, Vowels filed a petition seeking to modify the decree’s custody schedule
and child support provisions. Vowels’ petition asserted multiple substantial and material changes
had occurred in the parties’ circumstances since the divorce decree was entered in June 2019.
Bautista denied Vowels’ allegations and a trial on his petition was subsequently held. Following

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the presentation of evidence at trial, Bautista moved for a directed verdict, contending Vowels had
failed to establish a substantial and material change in the parties’ circumstances warranting a
modification of the decree. In response, Vowels moved to amend his pleadings to conform to the
evidence presented at trial pursuant to Rule 215 of the Idaho Rules of Family Law Procedure
(I.R.F.L.P.).
The magistrate court partially granted and partially denied Bautista’s motion. Specifically,
the magistrate court determined that Vowels failed to prove a substantial and material change in
circumstances with regard to custody. Accordingly, the magistrate court granted Bautista’s motion
as it pertained to child custody. However, the magistrate court found there was evidence of a
substantial and material change in the parties’ incomes. Accordingly, the magistrate court denied
Bautista’s motion as it pertained to child support. After ruling on Bautista’s motion, the magistrate
court denied Vowels’ motion to amend his pleadings. Thereafter, the parties presented evidence
relating to the modification of child support. After hearing testimony and reviewing the evidence
presented, the magistrate court modified the decree’s child support provisions. Vowels moved for
permission to pursue an expedited appeal, and the motion was granted. Vowels now appeals.
II.
STANDARD OF REVIEW
In a permissive appeal under I.A.R. 12.1, appellate courts review the magistrate court’s
decision without the benefit of a district court appellate decision. Lamont v. Lamont, 158 Idaho
353, 356, 347 P.3d 645, 648 (2015). Decisions regarding child custody are committed to the sound
discretion of the magistrate court, and the magistrate court’s decision may be overturned on appeal
only for an abuse of discretion. Id.; McGriff v. McGriff, 140 Idaho 642, 645, 99 P.3d 111, 114
(2004); Moye v. Moye, 102 Idaho 170, 171, 627 P.2d 799, 800 (1981).
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).

2
Where a trial court sits as a finder of fact without a jury, the court is required to enter
findings of fact and conclusions of law. I.R.C.P. 52(a); Estate of Hull v. Williams, 126 Idaho 437,
440, 885 P.2d 1153, 1156 (Ct. App. 1994). Our review of the trial court’s decision is limited to
ascertaining whether substantial, competent evidence supports the findings of fact and whether the
trial court correctly applied the law to the facts as found. Borah v. McCandless, 147 Idaho 73, 77,
205 P.3d 1209, 1213 (2009); Cummings v. Cummings, 115 Idaho 186, 188, 765 P.2d 697, 699 (Ct.
App. 1988). Thus, we defer to findings of fact that are not clearly erroneous, but we freely review
the trial court’s conclusions of law reached by applying the law to the facts found. Staggie v. Idaho
Falls Consol. Hosps., 110 Idaho 349, 351, 715 P.2d 1019, 1021 (Ct. App. 1986). Where there is
conflicting evidence, it is the trial court’s task to evaluate the credibility of witnesses and to weigh
the evidence presented. Desfosses v. Desfosses, 120 Idaho 354, 357, 815 P.2d 1094, 1097 (Ct.
App. 1991). We will not set aside the trial court’s factual findings as clearly erroneous if they are
supported by substantial and competent, even if conflicting, evidence. Kennedy v. Schneider, 151
Idaho 440, 442, 259 P.3d 586, 588 (2011). Evidence is substantial and competent if a reasonable
trier of fact would accept that evidence and rely on it to determine whether a disputed point of fact
was proven. Hull v. Giesler, 156 Idaho 765, 772, 331 P.3d 507, 514 (2014); Hutchison v.
Anderson, 130 Idaho 936, 940, 950 P.2d 1275, 1279 (Ct. App. 1997).
III.
ANALYSIS
Vowels asserts the magistrate court abused its discretion and erred as a matter of law when
it partially granted Bautista’s motion for a directed verdict. Vowels further contends the magistrate
court abused its discretion when it denied his motion to amend his pleadings to conform to the
evidence presented at trial. Finally, Vowels argues the magistrate court abused its discretion and
erred as a matter of law when it failed to modify the decree’s custody schedule despite its opinion
that a modification of custody would be in the children’s best interests. In response, Bautista
asserts the record demonstrates that the magistrate court: properly addressed the issues presented;
did not abuse its discretion when it denied Vowels’ petition to modify custody; and that the
magistrate court’s findings are supported by substantial evidence. Because we hold that Vowels
failed to show the magistrate court erred when it denied his petition to modify custody, we need

3
not address the arguments raised relating to Bautista’s motion for directed verdict, nor Vowels’
motion to amend.
A. Vowels’ Petition to Modify Custody
An existing order or decree of child custody may be modified only upon a showing of a
material, permanent, and substantial change in circumstances that warrants modification of
custody for the best interests of the child. Searle v. Searle, 162 Idaho 839, 843, 405 P.3d 1180,
1184 (2017); Doe v. Doe (2016-17), 161 Idaho 67, 71, 383 P.3d 1237, 1241 (2016); Rogich v.
Rogich, 78 Idaho 156, 161, 299 P.2d 91, 94 (1956). A party who wishes to modify a previously
existing custody order must first demonstrate that a material, substantial change in the parties’
circumstances has occurred since the last custody order. Searle, 162 Idaho at 843, 405 P.3d at
1184. Once a material and substantial change has been established, the trial court will then
determine custody and where the children will reside using the best interests of the child standard
provided in I.C. § 32-717. Searle, 162 Idaho at 843, 405 P.3d at 1184; Lamont, 158 Idaho at 359,
347 P.3d at 651. Thus, the party moving to modify custody has the burden not only of showing
the material and substantial change but that, in light thereof, the best interests of the children
require changing custody. Searle, 162 Idaho at 843, 405 P.3d at 1184; Chislett v. Cox, 102 Idaho
295, 298, 629 P.2d 691, 694 (1981). Whether a change is “material” or “substantial” depends on
the impact the change has on the child. Doe (2016-17), 161 Idaho at 73, 383 P.3d at 1243. The
changed-circumstances requirement reflects the policy favoring finality and discouraging
relitigation of custody agreements. Searle, 162 Idaho at 843, 405 P.3d at 1184; Doe (2016-17),
161 Idaho at 73, 383 P.3d at 1243. That policy goal, however, is of secondary importance when
compared to the best interests of the child, which is the controlling consideration in all custody
proceedings. Searle, 162 Idaho at 843, 405 P.3d at 1184; Poesy v. Bunney, 98 Idaho 258, 261, 561
P.2d 400, 403 (1977).
In his petition to modify custody, Vowels alleged the following substantial and material
changes in the parties’ circumstances had occurred since entry of the divorce decree:
1. The minor children are now older and better able to spend extended
periods of time in each household.
2. [Vowels’] work schedule has changed such that he [sic] more available to
spend time with the minor children.
3. [Vowels] is no longer required to travel as frequently for work.

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4. The minor children spend frequent time in the care of third persons while in
[Bautista’s] care, which care results [sic] increased and unnecessary childcare
expenses and costs.
5. The minor children desire to spend additional time with [Vowels].
6. The custody schedule in the Judgment and Decree results in mid-week
transitions for the minor children during the school year which impact the
children’s consistency during the school week.
7. It is believed [Bautista’s] income has increased.
8. The current custody schedule is not in the best interests of the minor
children.
9. [Vowels] may supplement with additional substantial and material changes
in circumstance.
10. Based upon the above substantial and material changes in circumstance
child custody should be modified whereby [Bautista] and [Vowels] follow week
on/week off custody schedule. Child support should be modified consistent with
the change of custody requested herein and the change in income of [Bautista].
At the conclusion of Vowels’ presentation of evidence at trial, Bautista moved the
magistrate court “for a directed verdict,” asserting Vowels had failed to demonstrate that there had
been a “substantial change in the [parties’] circumstances or that his proposed modification of
custody is in the best interests of the children.” Vowels opposed the motion and, pursuant to
I.R.F.L.P. 215, moved to amend his pleadings to conform “to the evidence that was presented, the
issues that were tried by consent, including those substantial material changes in circumstances”
he alleged had occurred since the initial divorce decree was entered. The magistrate court orally
ruled on Bautista’s motion for a directed verdict and also memorialized its rulings in its findings
of fact and conclusions of law.1 The magistrate court granted Bautista’s motion for a directed

1
After the magistrate court orally ruled on Bautista’s motion for a directed verdict, Vowels
asked the magistrate court to specifically rule on his motion to amend his pleadings to conform to
the evidence presented. The magistrate court found Vowels’ proposed amendments were not
“tried by express or implied consent.” The magistrate further stated that, even if it were to grant
Vowels’ motion to amend, it would nevertheless find that Vowels failed to establish a “material,
substantial, permanent change in circumstances.” Accordingly, the magistrate court denied
Vowels’ motion to amend. On appeal, Vowels argues the magistrate court erred when it denied
his motion to amend because: (1) it did not address his motion prior to ruling on Bautista’s motion
for a directed verdict; (2) no objections were raised during trial regarding Vowels’ and Bautista’s
testimony concerning other changes in circumstances; and (3) it applied the wrong legal standard.
However, because the magistrate court found that Vowels would have nevertheless failed to
establish a substantial and material change in the parties’ circumstances had it granted Vowels’

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verdict ,in part and denied it in part.2 Specifically, the magistrate court granted Bautista’s motion
for a directed verdict as it related to child custody.3 After analyzing all of the alleged changes
raised in Vowels’ petition, the magistrate court found that Vowels “had not established a material
and substantial change in circumstances in regard to custody” and denied Vowels’ petition to
modify custody.
On appeal, Vowels asserts the magistrate court erred when it found that Vowels failed to
establish a material and substantial change in the parties’ circumstances. In response, Bautista
contends the magistrate court’s findings relating to each of Vowels’ alleged changes in
circumstances are supported by substantial and competent evidence. We will address each of the
alleged substantial and material changes Vowel raises on appeal.4
1. Children’s ages
The first alleged change in circumstances raised in Vowels’ petition to modify was that
“the children are now older and better able to spend extended periods of time in each household.”

motion to amend, Vowels’ arguments are moot. Accordingly, we will not address this issue
further.
2
The magistrate court denied Bautista’s motion for a directed verdict as it pertained to child
support because it “found there was evidence of a material and substantial change in the parties’
incomes.” Thereafter, the trial reconvened and the parties presented evidence regarding their
respective incomes. Ultimately, the magistrate court modified the decree’s child support
provisions and issued separate findings of fact and conclusions of law reflecting that modification.
The magistrate court’s modification of child support has not been raised as an issue on appeal.
3
Vowels argues the magistrate court erred in granting Bautista’s motion for a directed
verdict because there “is no corresponding rule under the [I.R.F.L.P.] for directed verdicts.”
Vowels also asserts the magistrate court erred in granting Bautista’s motion because it failed “to
apply the applicable legal standard” for motions for a directed verdict. Bautista’s reference to a
“directed verdict” does not automatically entitle Vowels to the standard applicable for motions for
a directed verdict. The core of Bautista’s argument was that Vowels failed to meet his initial
burden of establishing a material and substantial change in circumstances warranting modification
of custody. Regardless of the verbiage used during the discussion of Bautista’s motion for a
“directed verdict,” the magistrate court was evaluating whether Vowels had satisfied his initial
burden.
4
On appeal, Vowels does not raise arguments pertaining to the magistrate court’s analysis
of Vowels’ seventh, ninth, and tenth alleged changes in the parties’ circumstances. Accordingly,
this Court will not address those alleged changes further.

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The magistrate court found that, “due to the natural passage of time and the aging process, children
will always be older when a petition to modify is filed after entry of a custody order.” According
to the magistrate court, there “are, and always will be, changes that occur in children’s lives” as
time passes after the entry of a custody order. However, the magistrate court found that “the
passage of time does not necessarily mean the changes are material and substantial warranting
modification of custody in the best interests of the children.” The magistrate court further found
that, while it identified changes in the children’s lives and circumstances attributable to the passage
of time and the children’s increased ages, it did not find any such changes in circumstances to be
material or substantial. Thus, the magistrate court found that Vowels’ first allegation did not
establish a material and substantial change in the parties’ circumstances.
Vowels asserts the magistrate court erred with respect to the first alleged change in the
parties’ circumstances because, he contends, the passage of time and the respective increases in
the children’s ages “impacted the children in many different areas of their lives, as well as impacted
the parents in their day to day care of the children.” Specifically, Vowels highlights that L.V.
obtained his driver’s license and began helping the parties’ transport the children to and from
school, as well as during custody exchanges. Vowels also notes that L.V. can remain unsupervised
for extended periods of time. A review of the record shows the magistrate court considered these
changes and nevertheless found that they did not establish a material and substantial change in
circumstances. The magistrate court’s findings pertaining to the impact the passage of time had
on the children are supported by substantial and competent evidence.
Relying on Drinkall v. Drinkall, 150 Idaho 606, 249 P.3d 405 (Ct. App. 2011), Vowels
argues the magistrate court in this case relied upon on the same erroneous logic which led to our
remand in Drinkall, i.e., that the children’s increase in age was anticipated by the parties as
evidenced by the stipulated phased-in custody schedule. Vowels contends that, while both parties
anticipated that the children would get older, the magistrate court erred by relying solely on that
finding in determining Vowels failed to establish a substantial and material change. Contrary to
Vowels’ argument, the magistrate court did not rely solely on the fact that the children would
naturally get older with the passage of time when making its findings. Rather, the magistrate court
also considered the impact the passage of time had on the children. Nevertheless, the magistrate
court found the impact on the children highlighted by Vowels failed to establish a material and

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substantial change in circumstances indicating to the magistrate court’s satisfaction that
modification of custody would be in the children’s best interests. Drinkall does not change our
conclusion that Vowels has failed to show error in the magistrate court’s analysis of Vowels’ first
alleged change in circumstances.
2. Vowels’ work schedule and work-related travel
The second alleged change raised in Vowels’ petition to modify was that his “work
schedule has changed such that he [sic] more available to spend time with the minor children.”
The magistrate court noted that, at the time the divorce decree was entered, Vowels was
self-employed, “owning and operating Nathan’s Painting and Birdhouse Storage.” Vowels
testified that he worked approximately sixty-two hours per week for Nathan’s Painting at the time
the parties divorced, but that he now only works approximately twenty hours per week. The
magistrate court found that, because Vowels is self-employed, he “had a flexible work schedule
that he controlled” at the time the decree was entered. The magistrate court also found that Vowels
remained self-employed at the time of the modification trial and that he continued to have control
over his flexible work schedule. Further, the magistrate court noted the materials submitted by the
parties at the time of the divorce in which Vowels “was promoting how flexible his schedule was
then,” which is the same argument Vowels advanced at trial. Because Vowels’ flexibility
remained the same, the magistrate court found his second allegation failed to establish a material
and substantial change in the parties’ circumstances.
Similarly, the third alleged change in circumstances raised in Vowels’ petition to modify
was that he “is no longer required to travel as frequently for work.” Vowels testified that, as a
result of his employees taking on more responsibilities, he is no longer required to travel for work.
The magistrate court again noted that, at the time the decree of divorce was entered, Vowels also
had a flexible work schedule which he controlled. The magistrate court further noted that “when,
where and how frequently [Vowels] travelled for work was subject to his control and was not
required or controlled by an employer or supervisor.” The magistrate court also found that, at the
time of the trial, Vowels had the same flexible work schedule he had at the time the decree was
entered. Additionally, Vowels continued to have control over when, where, and how frequently
he traveled for work. Accordingly, the magistrate court found Vowels’ third allegation did not
establish a material and substantial change in the parties’ circumstances.

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On appeal, Vowels argues the magistrate court’s focus on the finding that Vowels
controlled his work schedule, including work-related travel, was misguided. According to Vowels,
the alleged change in his work schedule and travel “must be analyzed, not just from the perspective
of why it has changed, but instead how it has changed and how such change intersects with the
best interest of the children.” Vowels asserts that, since he is more available to be with the
children, coupled with the children allegedly wanting “to spend more time with him, and are now
older and better able to do so,” the magistrate court erred in not finding a material and substantial
change. We disagree. The record shows that the magistrate court considered Vowels’ change in
work schedule. However, because Vowels is self-employed and has been throughout the
proceedings related to this case, the magistrate court found that he could change his work schedule
as he saw fit, when he saw fit. As such, the magistrate court found Vowels’ control over his work
schedule, which he has enjoyed since the parties’ stipulated decree, negated any potential findings
of a material and substantial change. The magistrate court’s findings are supported by substantial
and competent evidence. Accordingly, Vowels has failed to show error in the magistrate court’s
analysis of his second and third alleged changes.
3. Third-party childcare
The fourth alleged change in circumstances raised in Vowels’ petition to modify is that
“the minor children spend frequent time in the care of third persons while in [Bautista’s] care,
which care results [in] increased and unnecessary childcare expenses and costs.” At trial, the
magistrate court found: “Given their age, I don’t find that that’s--that they are, in fact, spending
frequent time in third person care.” As such, the magistrate court found that Vowels’ fourth
allegation failed to establish a material and substantial change in the parties’ circumstances related
to childcare.
On appeal, Vowels argues the magistrate court erred when it “overlooked the evident
change that had occurred from the time of the filing” of his petition and the date of the trial. Vowels
cites McGriff, 140 Idaho at 647, 99 P.3d at 116, for the following proposition:
Consequently, if the trial court finds “any change which is evident” representing a
material circumstance that affects the best interest of the child in a custody
proceeding, not only does the trial court have the discretion to make such findings
if the evidence supports them, it is required to do so.

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Vowels asserts that the “evident change” overlooked by the magistrate court is “that the
children [are] now old enough to no longer require third party childcare when [Bautista] was
working.” According to Vowels, the magistrate court “should have considered the children’s
increased ages and decrease in the need for third party childcare” when analyzing this alleged
change. However, the “evident change” Vowels alleges exists refers to the first alleged change in
circumstances Vowels raised in his petition to modify, i.e., that the minor children are now older
and better able to spend extended periods of time in both households. As stated above, the
magistrate court did evaluate the children’s age and the impact of the passage of time and
ultimately determined that any changes related thereto did not establish a substantial or material
change in the parties’ circumstances. The magistrate court’s findings are supported by substantial
and competent evidence. Accordingly, Vowels has failed to show error in the magistrate court’s
analysis of his fourth alleged change relating to childcare.
4. Children’s desire to spend more time with Vowels
The fifth alleged change in circumstances raised in Vowels’ petition to modify is that “the
minor children desire to spend additional time with” Vowels. The magistrate court determined it
could not make such a finding because it had not heard from the children. The magistrate court
noted that it did not “have anything from which [it] would find that [the children] are wanting more
of one or the other [parent] at this point in time than they already have.” Thus, based on the
evidence presented, or lack thereof, the magistrate court could not determine whether there had
been a change in the amount of time the children wished to spend with Vowels. Accordingly,
Vowels’ fifth allegation failed to establish a material and substantial change in the parties’
circumstances.
On appeal, Vowels argues the magistrate court’s finding was clearly erroneous. Vowels
attempts to bolster his argument by highlighting conflicting testimony from both Vowels and
Bautista pertaining to the children’s desired custody arrangement. Specifically, Vowels points to
Bautista’s testimony at trial that the children did not express a “strong preference one way or the
other” during their discussions of the custody schedule. Vowels also cites his testimony at trial
that the children frequently expressed a desire to spend additional time with him. Based on this
testimony, Vowels contends the magistrate court’s finding that it could not ascertain the children’s
desired custody schedule is clearly erroneous. We disagree. When conflicting evidence is

10
presented, the task of evaluating the credibility of witnesses and weighing the evidence presented
is vested in the trial court. Desfosses, 120 Idaho at 357, 815 P.2d at 1097. Further, this Court will
not set aside the trial court’s factual findings as clearly erroneous if they are supported by
substantial and competent, even if conflicting, evidence. Kennedy, 151 Idaho at 442, 259 P.3d at
588. Here, the magistrate court’s findings are supported by substantial and competent evidence.
Accordingly, Vowels has failed to show error in the magistrate court’s analysis of his fifth alleged
change in the parties’ circumstances.
5. Custody exchanges
The sixth alleged change in circumstances raised in Vowels’ petition to modify is that the
current custody schedule “results in mid-week transitions for the minor children during the school
year which impact the children’s consistency during the school week.” The magistrate court
indicated that the decree’s custody order provided for exchange of the children during the school
week. More specifically, the children would go from Vowels’ custody to Bautista “on Tuesday
morning at the start of the school day” and from Bautista’s custody to Vowels “on Friday after
school.” The magistrate court found that, at the time of trial, the children continued to follow the
same custody schedule. The magistrate court also noted that no evidence was presented to support
Vowels’ allegation that the timing of the exchanges negatively impacts the children’s consistency
during the school week. Accordingly, the magistrate court found that the dates and times of the
exchanges remained “the same as they were” and did not constitute a change in circumstances.
On appeal, Vowels argues the magistrate court erred in finding his sixth alleged change did
not establish a material and substantial change in light of the magistrate’s stated belief that
mid-week custody exchanges tend to interfere with children’s routines. In support of his argument,
Vowels relies on the following statement, which the magistrate court made during trial:
But one of the, I guess, opinions I have evaluating these cases is particularly school
nights, I believe children are, from my experience, better being in the same bed and
the same routine every night before school. And so it would be like Sunday,
Monday, Tuesday, Wednesday, Thursday with one parent, and then the weekends,
Friday night, Saturday night with the other parent, so they have a routine.
Vowels appears to argue that, because the magistrate court expressed its belief that
mid-week exchanges could potentially negatively impact children’s routines, the magistrate court
was required to find that Vowels’ sixth allegation constituted a substantial and material change.

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Vowels’ argument is unpersuasive. The magistrate court’s discussion and criticism of custody
schedules with mid-week exchanges does not necessitate a finding of a material and substantial
change. Moreover, that the magistrate court seemed to agree with Vowels that mid-week
exchanges could negatively impact the children’s routines does not mean the magistrate court was
required to also find Vowels’ alleged change to be a material and substantial change. The
magistrate court’s finding that no evidence was presented showing that the mid-week exchanges
negatively impact the children’s consistency during the school week is supported by substantial
and competent evidence. Accordingly, Vowels has failed to show error in the magistrate court’s
analysis of his sixth alleged change in the parties’ circumstances.
6. Current custody schedule
The eighth alleged change in circumstances raised in Vowels’ petition to modify is that
“the current custody schedule is not in the best interests of the minor children.” The magistrate
court first discussed the terms of the parties’ custody schedule pursuant to the original divorce
decree. While the magistrate court indicated he had some concerns regarding the parties’
stipulated custody arrangement, it also noted that the children had been following the schedule in
question for approximately four and one-half years. The magistrate court also found there was no
evidence presented at trial to show that the custody schedule was negatively impacting the children
and/or their school performance. Because the magistrate court’s concerns all existed at the time
the original decree was stipulated to, the magistrate court determined that the concerns did not
establish a substantial or material change in circumstances. Accordingly, the magistrate court
found that Vowels failed to establish a material and substantial change in the parties’
circumstances in relation to the custody schedule.
On appeal, Vowels argues the magistrate court erred because, “despite agreeing with
[Vowels] that the current schedule is not in the best interest of the children, and despite [Vowels]
making that specific allegation,” the magistrate court did not find a substantial and material change
in circumstances. Vowels asserts such analysis “lacks legal reasoning consistent with Idaho law.”
Vowels cites the following portion of the transcript in an attempt to show the magistrate court’s
finding that the best interests of the child warrant modification of custody: “But from what I’m
hearing here, I think there’s likely best interest of the child would warrant modification.” Vowels
then attempts to bolster his argument by highlighting changes the magistrate court opined could

12
help tailor the custody schedule to the best interests of the children. Thus, Vowels appears to argue
once again that, because the magistrate court opined that a modification of custody could be in the
best interests of the children, the magistrate court was required to modify the decree’s custody
schedule. However, that is not the standard governing modifications of existing custody orders or
decrees.
In order to modify the terms of an existing custody order or decree, the moving party has
the burden of first establishing a material and substantial change in circumstances. Searle, 162
Idaho at 843, 405 P.3d at 1184. Once a material and substantial change has been established, the
moving party has the additional burden of showing that, in light of the change, the best interests
of the children require the shifting of custody. Id.; Chislett, 102 Idaho at 298, 629 P.2d at 694.
Thus, it was Vowels’ burden to first show the magistrate court that a material and substantial
change in the parties’ circumstances had occurred. Thereafter, Vowels’ next burden would be to
show the magistrate court that, in light of his alleged material and substantial changes, the best
interests of the children warranted modification of the custody schedule. Despite the magistrate
court’s concerns regarding the parties’ existing custody schedule, the magistrate court found that
Vowels failed to meet his first burden of establishing a material and substantial change. Such a
finding is supported by substantial and competent evidence. Accordingly, Vowels has failed to
show error in the magistrate court’s analysis of his eighth alleged change in the parties’
circumstances.
B. Attorney Fees
On appeal, Bautista requests an award of attorney fees pursuant to I.C. § 12-121 and
I.A.R. 41. Vowels responds that Bautista’s request for attorney fees on appeal should be denied
because his appeal “has not been brought frivolously, unreasonably, or without foundation.”
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 is left with the abiding belief that
the appeal has been brought or defended frivolously, unreasonably, or without foundation. Rendon
v. Paskett, 126 Idaho 944, 945, 894 P.2d 775, 776 (Ct. App. 1995). An award of attorney fees is
appropriate if the appellant only invites this Court to second-guess the trial court on conflicting
evidence, or if the law is well settled and the appellant has made no substantial showing that the
lower court misapplied the law, or no cogent challenge is presented with regard to the trial court’s

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exercise of discretion. Pass v. Kenny, 118 Idaho 445, 449-50, 797 P.2d 153, 157-58 (Ct. App.
1990). That standard for an award of attorney fees has not been satisfied in this case. Accordingly,
Bautista is not entitled to an award of attorney fees on appeal pursuant to I.C. § 12-121 and
I.A.R. 41.
Bautista also argues that, because of the disparity between the parties’ incomes, she is
entitled to attorney fees pursuant to I.C. § 32-704. Bautista cites Davies v. Davies, 160 Idaho 74,
77, 368 P.3d 1017, 1020 (Ct. App. 2016) and asserts that, “a disparity of income is sufficient to
support a magistrate’s conclusion that the party with the higher income should pay a share of the
other party’s attorney fees.” As such, Bautista argues she is entitled to attorney fees because her
income is $104,221 and Vowels’ income is $216,979. In response, Vowels argues Bautista’s
request for attorney fees “in this regard is frivolous in that she now asks the court to award attorney
fees for an issue that was not raised before the trial court.” Thus, because she did not raise this
argument below, Vowels asserts Bautista’s argument is not preserved and that her request for
attorney fees should therefore be denied. We agree with Vowels. Generally, issues not raised
below may not be considered for the first time on appeal. Sanchez v. Arave, 120 Idaho 321, 322,
815 P.2d 1061, 1062 (1991). In this case, the record shows that Bautista failed to file a motion for
attorney fees pursuant to I.C. § 32-704(3) with the magistrate court. Consequently, Bautista’s
argument is unpreserved. Accordingly, Bautista is not entitled to an award of attorney fees on
appeal pursuant to I.C. § 32-704.
IV.
CONCLUSION
The magistrate court’s analysis of Vowels’ alleged substantial and material changes are
supported by substantial and competent evidence. Vowels has failed to show the magistrate court
erred when it denied his petition to modify the decrees’ custody schedule. Bautista has failed to
satisfy the standard for an award of attorney fees pursuant to I.C. § 12-121 and I.A.R. 41.
Additionally, Bautista failed to preserve her argument for an award of attorney fees pursuant to
I.C. § 32-704. Accordingly, the judgment regarding Vowels’ petition to modify child custody is
affirmed. Costs, but not attorney fees, on appeal are awarded to Bautista as the prevailing party.
Judge HUSKEY and Judge TRIBE, CONCUR.

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