Finman v. Finman

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 51092

LORNA C. FINMAN, )
) Filed: October 2, 2024
Petition-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
PAUL F. FINMAN, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Respondent-Appellant. )
)

Appeal from the Magistrate Division of the District Court of the First Judicial
District, State of Idaho, Kootenai County. Hon. Cynthia K.C. Meyer, District
Judge. Hon. John A. Cafferty, Magistrate.

Memorandum decision and order of the district court, on intermediate appeal from
the magistrate division, affirmed.

Bistline Law, PLLC; Arthur M. Bistline, Coeur d’Alene, for appellant.

North Idaho Family Law, PLLC; Betsy Black, Coeur d’Alene, for respondent.
________________________________________________

HUSKEY, Judge
Paul F. Finman appeals from the district court’s order on intermediate appeal from the
magistrate court. Paul argues the district court abused its discretion by denying his request for
attorney fees because Lorna C. Finman frivolously defended his intermediate appeal. Paul fails to
point to any specific error by the district court and fails to support his claim of error with sufficient
argument and authority. As a result, Paul has waived any claim of error by the district court. Even
if addressed on the merits, Paul’s claim fails. The district court’s memorandum decision and order
is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of a divorce proceeding between Paul and Lorna. Lorna filed a petition
for divorce requesting the magistrate court enter a judgment of divorce on the ground of
irreconcilable differences and allocate the parties’ net marital estate equally. The Finmans

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attended mediation concerning the distribution of their real properties. The mediation concluded
with a final agreement as to the disposition of the parties’ real property. Although Lorna’s counsel
memorialized the agreement, Paul did not sign it. Lorna moved to enforce the oral settlement
agreement, and Paul objected. The magistrate court granted the motion to enforce the settlement
agreement. Paul appealed to the district court. The district court found the parties’ oral settlement
agreement reached in mediation did not comply with the strict formality requirements of Idaho
Code § 32-917, entered an order vacating the magistrate court’s decision, and remanded the case
to the magistrate court for further proceedings.
Several months later, while the Finmans’ divorce was pending in the magistrate court, the
Idaho Supreme Court issued its decision in Van Orden v. Van Orden, 170 Idaho 597, 515 P.3d 243
(2022) which held that the “failure to comply with the statutory formalities of section 32-917 is an
affirmative defense, which a party can waive if she fails to assert it before the trial court.” Van
Orden, 170 Idaho at 607, 515 P.3d at 243. In response to the Van Orden decision, the magistrate
court ordered the Finmans to each provide briefing on how the opinion impacted their ongoing
case. Through briefing, Paul argued the Van Orden case had no relevance because the issue
regarding the enforceability of the oral, mediated settlement agreement was raised to the magistrate
court. Lorna argued that while Paul failed to cite to I.C. § 32-917 and, thus, had likely waived the
affirmative defense to the oral nature of the mediated settlement agreement, Lorna would forego
asserting Paul’s waiver in order to “proceed to trial wherein she will ask this Court to enter an
order selling the real estate as soon as possible and splitting the net proceeds equally, wherein out
of [Paul’s] share, [Lorna] is reimbursed for the value of the personal property [Paul] stole from
her.” The matter proceeded to a hearing before the magistrate court where Lorna’s counsel
informed the magistrate court that Lorna was waiving any claim that Paul had waived his
affirmative defense of I.C. § 32-917 so the parties could go to trial. The magistrate court held that
even though the parties agreed that the mediated settlement agreement should not be enforced,
Paul did not argue that the mediated settlement agreement was not enforceable because it was not
reduced to writing pursuant to I.C. § 32-917, and pursuant to Van Orden, the magistrate court was
required to enforce the mediated oral settlement agreement.
Paul appealed to the district court, arguing that the magistrate court erred by: (1) refusing
to follow the parties’ joint request that the mediated settlement agreement not be enforced,
(2) enforcing the settlement agreement despite the fact that Lorna waived any objection to Paul’s

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alleged failure to raise the affirmative defense, and (3) enforcing the settlement agreement because
Paul had not raised the affirmative defense. Paul also argued that he was entitled to attorney fees
on intermediate appeal because he was forced to bring an appeal seeking the same relief Lorna
requested from the magistrate court, i.e., vacating the magistrate court’s order enforcing the
mediated settlement agreement.
On intermediate appeal, Lorna argued that Paul failed to challenge the enforceability of the
oral, mediated settlement agreement pursuant to I.C. § 32-917 in the magistrate court and, thus, he
waived the affirmative defense therein. Lorna also challenged several of Paul’s factual and legal
assertions underpinning his theory regarding the magistrate court’s error in enforcing the oral,
mediated settlement agreement. Nonetheless, and despite the factual and legal inaccuracies, Lorna
acknowledged that some of Paul’s legal analysis regarding some of the relevant precedent was
sound. As a result, Lorna stipulated to dismissal of the claim regarding the enforceability of the
settlement agreement and to remand the case to the magistrate court to adjudicate the remaining
issues in their divorce case. However, on intermediate appeal, Lorna did not stipulate to, and
explicitly contested, Paul’s request for attorney fees. Because the parties stipulated to a remand
of the only other issue on appeal--the enforceability of the oral, mediated settlement agreement--
the sole issue presented and argued to the district court on intermediate appeal was whether Paul
was entitled to attorney fees for filing his opening brief. Following a hearing, the district court
entered its memorandum decision and order finding that the parties mutually agreed to rescind the
oral, mediated settlement agreement, the issues addressed in the settlement would be tried to the
magistrate court, and Paul was not entitled to attorney fees on intermediate appeal because Lorna
did not defend the substance of the appeal frivolously, unreasonably, or without foundation.
Paul timely appealed from the district court’s intermediate appellate decision.
II.
STANDARD OF REVIEW
An award of attorney fees and costs is reviewed for an abuse of discretion. In Re Doe, 168
Idaho 511, 518, 484 P.3d 195, 202 (2021). When a trial court’s discretionary decision is reviewed
on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the lower 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

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it; and (4) reached its decision by an exercise of reason. Lunneborg v. My Fun Life, 163 Idaho
856, 863, 421 P.3d 187, 194 (2018).
III.
ANALYSIS
On appeal, Paul argues the district court abused its discretion in denying his request for
attorney fees on intermediate appeal. Lorna argues the district court properly exercised its
discretion in denying Paul’s request for attorney fees. 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 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 exercise of discretion. Pass v.
Kenny, 118 Idaho 445, 449-50, 797 P.2d 153, 157-58 (Ct. App. 1990).
Paul has waived his claim on appeal to this Court that the district court erred in denying
his request for attorney fees. First, Paul provides no citation to the record in the argument section
of his brief. See I.A.R. 35(a)(6) (“The argument shall contain the contentions of the appellant with
respect to the issues presented on appeal, the reasons therefor, with citations to the authorities,
statutes and parts of the transcript and record relied upon.”). Paul cites to the district court’s
conclusion that “Van Orden v. Van Orden, 515 P.3d 233 (2022) was not foreseeable and the
Magistrate’s enforcement of the agreement over her objection was not foreseeable.” Paul then
agrees with the district court by stating, “Unless an agreement of the parties violates public policy
it is most certainly unforeseeable that a Magistrate Judge would, based on recent new precedent
from the Supreme Court, refuse to enforce an agreement of the parties.” Although agreeing with
the district court’s assessment, Paul nonetheless claims the district court erred. However, Paul
fails to articulate the basis for the claimed error and further fails to provide argument or authority
in support of the claim. A party waives an issue on appeal if either authority or argument is lacking.
Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997). Instead of addressing
how the district court allegedly erred, Paul focuses on what he believes Lorna should have done.

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Additionally, although Paul correctly cites the relevant standard of review, he fails to
identify the abuse of discretion prong challenged and provide an analysis of how the district court
erred. The failure to articulate the abuse of discretion prong challenged and provided an analysis
of how the district court erred vis-a-vis that prong is fatal to Paul’s argument. Midtown Ventures,
LLC v. Capone as Tr. to Thomas & Teresa Capone Living Tr., 173 Idaho 172, 180, 539 P.3d 992,
1000 (2023) (holding failure to identify abuse of discretion prong violated and provide argument
relating to that prong is fatal to its argument.); Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146,
1152 (2010) (holding “general attack on the findings and conclusions of the district court, without
specific reference to evidentiary or legal errors, is insufficient to preserve an issue”); Powell, 130
Idaho at 128, 937 P.2d at 440 (holding party waives an issue on appeal if either argument or
authority is lacking). Because Paul has waived the only claim presented on appeal, we need not
address his claim that the district court erred in denying his request for attorney fees on
intermediate appeal.
However, even if we reach the merits, Paul’s claim fails. Paul argues that the district court
should have awarded him attorney fees on intermediate appeal pursuant to I.C. § 12-121 for two
reasons. First, Paul asserts Lorna defended her claim on appeal frivolously and unreasonably
because she ultimately agreed to dismiss the appeal and remand the issue regarding the mediated
settlement agreement. Paul argues that Lorna should have proposed a stipulation to vacate the
magistrate court’s judgment before Paul wrote a brief on intermediate appeal to the district court.
Second, Paul argues that failing to respond to his claims on appeal is frivolous, citing Templeton
v. Hogue, 125 Idaho 130, 131-32, 867 P.2d 1004, 1005-06 (Ct. App. 1994) as support. Paul asserts
that Lorna’s “response brief did not address any of the merits of Paul’s appeal,” and to not address
any of the arguments on appeal is a frivolous defense of an appeal.
Lorna argues the district court correctly held that Paul was not entitled to attorney fees on
intermediate appeal because Lorna did not defend the appeal frivolously, unreasonably, or without
foundation. Lorna argues that Paul’s request, prior to briefing, for a stipulation to dismiss the
appeal and vacate the magistrate court’s decision regarding the mediated settlement agreement
“did not articulate any legal theories, briefing, legal authorities or substance” to support his claim
that Paul’s analysis of the undefined issue was correct. Lorna argues that, in light of the complexity
of the case, it was not unreasonable to review Paul’s opening brief before deciding what her next
step would be. As Lorna noted in her respondent’s brief:

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The appeal before the [district court] was a culmination of over three (3) years of
litigation involving incredibly sophisticated parties; numerous attorneys and
judges; and a multimillion-dollar marital estate consisting of many real properties;
substantial, varied, and even unique assets; and community property businesses.
The legal issues included, but were not limited to, the intersection between and the
application of the Uniform Mediation Act, the Statu[t]te of Frauds, Equitable
Estoppel, a vast body of Idaho Case Law involving the intent to form a written
contract, and later, on appeal, Idaho Code § 32-917 (which was subsequently held
to be an affirmative defense per the Van Orden decision).
Next, Lorna argues that Paul is incorrect when he says that Lorna did not respond to any
of his arguments because, as to the settlement agreement claim, she contested several of Paul’s
factual and legal assertions. Lorna then acknowledged that despite the factual and legal
inaccuracies in Paul’s opening brief, his legal analysis of relevant precedent was accurate and, as
a result, the most expeditious course of action for Lorna was to stipulate to a remand so the issue
could be decided on the merits. That was a response to Paul’s argument. As to the claim for
attorney fees, Lorna contested that claim and provided argument. Thus, argues Lorna, she did not
defend the appeal either frivolously or unreasonably. Finally, Lorna argues Paul’s reliance on
Templeton is misplaced because, unlike the Templeton case, Lorna did not fail to preserve the issue
of attorney fees for appeal.
On intermediate appeal from the magistrate court, the district court held that Paul was not
entitled to attorney fees because Lorna did not defend the substance of the appeal frivolously,
unreasonably, or without foundation. In support of its conclusion, the district court cited Lorna’s
reply brief and adopted Lorna’s reasoning regarding the timing and impact of Van Orden, the
inability to foresee that the magistrate court would reject Lorna’s request to get back on the trial
docket, and that Paul’s characterization of Lorna’s actions was not supported by the record. The
district court further adopted a portion of Lorna’s respondent’s brief, quoting:
Litigation of such duration, complexity, and magnitude simply cannot be navigated
without tremendous challenges, reevaluations, and adjustments. For [Paul] to claim
that [Lorna] is “defending an appeal that is seeking the same thing [she] wants,” is
a misstatement, an over-simplification, and discounts, if not outright ignores, the
extraordinary series of events that led to the present paradox. The incongruous
posture of this appeal process was neither foreseeable nor intended by [Lorna], and
it would be unjust to hold her accountable in the form of attorney’s fees or otherwise
when she had no control over [the magistrate court’s] decision, and she is not
defending the substance of the appeal now that it has been thoroughly briefed by
[Paul].

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The only case cited by Paul in support of his argument is Templeton, which is inapposite
in this case. In Templeton, Hogue appealed the district court’s award of attorney fees to Templeton
under I.C. § 12-121. Templeton, 125 Idaho at 130, 867 P.2d at 1004. This Court concluded that
Hogue waived any objection to the award of attorney fees because Hogue never filed a motion in
the trial court to disallow the attorney fees and, as a result, did not preserve any claim of error. Id.
at 131, 867 P.2d at 1005. The Court held that challenging an unpreserved claim was frivolous. Id.
at 132, 867 P.2d at 1006. Here, Paul does not argue that Lorna failed to preserve any claims
addressed on intermediate appeal, so Templeton is inapposite.
Moreover, Lorna’s decision to review Paul’s opening brief before deciding the most
appropriate course of action, which was to concede the issue and avoid prolonged appellate
litigation, does not mean she acted frivolously or unreasonably. Paul’s email warning Lorna that
he would seek attorney fees if she did not stipulate to a remand of the case did not “articulate any
legal theories, briefing, legal authorities or substance in support of his request.” Thus, it was only
after Paul’s brief was filed that Lorna was on notice of which legal theories were at issue and the
argument and authority supporting those theories. Similarly, only after reviewing the brief was
Lorna aware of the factual and legal assertions upon which Paul’s argument rested. As a result,
we agree with the district court that Lorna’s assessment of Paul’s opening brief regarding the oral,
mediated settlement agreement and her subsequent agreement to remand the case regarding the
appeal was neither frivolous nor unreasonable.
Further, Paul is incorrect when he says Lorna did not respond to his argument on appeal.
Lorna explicitly responded to his argument regarding the mediated settlement agreement, noting
in her brief on intermediate appeal, “Although there are legitimate counterarguments to the
arguments made in [Paul’s] Opening Brief and finer points to be distinguished regarding the
authority cited therein, [Lorna] acknowledges the merits of [Paul’s] overall position now that it
has been briefed.”1 Lorna’s decision to review Paul’s opening brief, in light of the length and
complexity of the case, before deciding to concede the issue related to the mediated settlement
agreement does not mean she did not respond to the issue. As to Paul’s request for attorney fees,

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It is concerning that Paul would augment the record with his brief on intermediate appeal,
but not Lorna’s, and then argue that Lorna’s brief did not address the merits of his claim. It is the
responsibility of the appellant to provide a sufficient record to substantiate his or her claims on
appeal. State v. Murinko, 108 Idaho 872, 873, 702 P.2d 910, 911 (Ct. App. 1985).
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Lorna responded to that claim and provided argument and authority to support her position that
Paul was not entitled to attorney fees. Thus, we disagree with Paul that Lorna did not respond to
his claims on appeal. Paul has failed to establish Lorna defended the case frivolously or
unreasonably. Therefore, the district court did not abuse its discretion in declining to award Paul
attorney fees on intermediate appeal.
IV.
CONCLUSION
Paul fails to point to any specific error by the district court and fails to support his claim of
error with sufficient argument and authority. As a result, he has waived any claim of error by the
district court and the district court’s memorandum decision and order is affirmed. Alternatively,
Paul has failed to show error in the district court’s decision denying his request for attorney fees
on intermediate appeal. Lorna, as the prevailing party in this appeal, is awarded costs on appeal
pursuant to I.A.R. 40.
Chief Judge GRATTON and Judge LORELLO, CONCUR.

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