Delwin Mecham and Patricia Howard were divorced in 1980, and Mecham was ordered to pay $150 a month child support for each of his four children. In 1988, Mecham's child support obligation was modified to $360 a month for two children for a total of $720 a month. Mecham appealed the magistrate's order to the district court which affirmed.
Mecham then appealed the district court's decision to the Supreme Court, and
Upon remand, the magistrate held a supplemental hearing and again concluded that, based on the needs of the two remaining children, the amount of Mecham's child support obligation should be increased to $360 a month per child. The magistrate's decision was affirmed by the district court which also awarded attorney fees to Howard. Mecham has again appealed to this Court, arguing that there was insufficient evidence, from either the original hearing or the supplemental hearing, to justify an increase in his child support obligation.
A magistrate's findings will be upheld if substantial and competent evidence supports those findings. McNelis v. McNelis, 119 Idaho 349, 806 P.2d 442 (1991). In this case the magistrate, in compliance with the Court of Appeals order on remand, found that there was a need for an increase in child support, finding that:
The evidentiary record supports the magistrate's findings. Accordingly, the magistrate's decision to increase the amount of child support is affirmed.
Mecham also appeals the district court's award of attorney fees to Howard. Although the district court did not state which statute it was applying, Howard argues on appeal before this Court that the appeal was frivolous and therefore the district court's award of fees should be affirmed under I.C. § 12-121. However, the district court did not make any findings that the appeal was frivolous, I.R.C.P. 54(e)(2). To justify attorney fees, "[t]he total defense of a party's proceedings must be unreasonable or frivolous." Magic Valley Radiology Ass. v. Professional Business Services, Inc., 119 Idaho 558, 563, 808 P.2d 1303, 1308 (1991). We conclude that the appeal is not entirely frivolous and therefore vacate the district court's award of attorney fees.
The judgment of the magistrate court is affirmed, and the decision of the district court is vacated. No fees or costs on appeal.