New Cases Added to MLAW: Five COA (unpublished): Barton, Zirate, Boyd, Herrmann, and Rosiak

by | Jun 25, 2024 | Nevada Family Law Appeals | 0 comments

Barton v. Barton, No. 86753-COA, Order of Reversal and Remand (Unpublished Disposition, Jan. 31, 2024)

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Zachary Barton and Sarah Barton have three minor children together and were divorced in 202, stipulating to joint legal custody and awarding Sarah primary physical custody subject to Zachary’s parenting time.

In January 2022, Zachary filed a motion for primary physical custody or alternatively, joint physical custody. Zachary failed to file a pretrial memorandum or appear at the December 5, 2022, calendar call. After waiting 15 minutes, the district court (Almase) heard testimony from Sarah then awarded her sole physical custody.

Zachary filed a motion for reconsideration arguing that he did not willfully miss the calendar call due to a misunderstanding of the court’s scheduling system. The district court denied the motion. Zachary appealed.

The Court of Appeals reversed and remanded. The COA reinforced what the Nevada Supreme Court has previously recognized; default judgments in matters of child custody are “simply not permissible” and that “child custody matters must be decided on their merits.” Cf. Blanco, 129 Nev. at 730, 311 P.3d at 1174 (2013).

Zirate v. Salazar, No. 86416-COA, Order of Affirmance (Unpublished Disposition, Feb. 8, 2024)

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Jose Zirate and Blanca Salazar filed a joint petition for divorce. The district court (Cutter) entered a divorce decree pursuant to their petition. Blanca was awarded primary physical custody subject to Jose’s parenting time.

Blanca sought permission to relocate to Kansas with the children so she and the children could reside with her new husband. Jose opposed and moved for primary physical custody. Blanca changed her request for only the youngest child to relocate with her to Kansas. The two older children preferred to remain in Nevada.

The district court ordered a split custody arrangement in which Blanca maintained primary physical custody of the youngest child while Jose was granted primary physical custody of the two older children. Also, Blanca’s request to relocate to Kansas with the youngest child was granted. Jose appealed as to the district court’s decision to permit Blanca to relocate to Kansas with the youngest child.

The Court of Appeals affirmed the district court’s decisions. The COA found that the district court made specific findings as to all of the factors enumerated in NRS 125C.007(1) and (2). Jose did not establish that the district court abused its discretion.

 

Boyd v. Hines, Jr., No. 85339-COA, Order of Affirmance (Unpublished Disposition, Feb. 15, 2024)

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David Hines, Jr. filed a complaint for custody in which he requested a finding of paternity and requested sole legal and physical custody of his minor child with Carnisha Boyd. David also asserted that Carnisha had a history of domestic violence and that child protective services had become involved with the child.

Carnisha did not dispute that David was the biological father but requested sole legal and physical custody. After an evidentiary hearing, the district court (Mercer) granted joint legal custody to both but primary physical custody to David. Carnisha appealed.

The Court of Appeals affirmed the district court’s determination. The COA found that the district court evaluated the required best interest factors from NRS 125C.0035(4) and found that several factors favored awarding David primary physical custody. Further, the COA concluded that the district court’s factual findings were supported by substantial evidence in the record.

Lastly, the COA rejected Carnisha’s argument that the district court was biased against her under Canarelli v. Eighth Jud. Dist. Ct., 138 Nev. 104, 107, 506 P.3d 334, 337  (2022).

 

Herrmann v. Herrmann, No. 86246-COA, Order Dismissing Appeal in Part and Affirming in Part (Unpublished Disposition, Feb. 8, 2024)

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Jeremy Herrmann and Kelly Herrmann were married and share two minor children. In April 2022, the district court (Unsworth) entered a default divorce decree after Jeremy failed to participate in the proceedings.

In January 2023 the district court entered an order regarding their omitted pensions, awarding each party their respective pension plans as their sole and separate property. Jeremy filed numerous motions which the district court mostly denied. The district court set a vexatious litigant hearing. Jeremy appealed.

The Court of Appeals affirmed the district court’s denial of Jeremy’s motion to set aside the order regarding the omitted pensions. Furthermore, the COA found that Jeremy had not demonstrated that property was actually omitted from the divorce decree.

The COA also rejected Jeremy’s argument that the district court was biased because it saw Jeremy wearing a t-shirt during one proceeding. The COA found that Jeremy did not demonstrate that the court’s conduct or orders in the underlying case were based on knowledge acquired outside of the proceedings and the court’s decision does not otherwise reflect “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Canarelli v. Eighth Jud. Dist. Ct., 138 Nev. 104, 107, 506 P.3d 334, 337 (2022).

Regarding Jeremy’s challenges to child custody and various other issues, the COA refused to address those as they either relate to prior orders not timely appealed or were not raised below in the motions resolved by the challenged order.

 

Rosiak v. Dist. Ct. (Rosiak), No. 86994, Order Granting Petition for a Writ of Prohibition (Unpublished Disposition, Nov. 17, 2023)

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The district court (Mercer) entered a final order distributing the parties’ property in a divorce action. Margarita was awarded the parties’ Ford Explorer and some California real property. Real party in interest Richard Rosiak appealed the order.

During the appeal, the district court granted Richard’s motion to keep the status quo regarding the parties’ property and directed Margarita to return the Ford Explorer to Richard and pay monthly rent for the California property. Margarita filed this writ petition.

The Supreme Court concluded that writ relief was warranted because the district court exceeded its jurisdiction when it granted Richard’s motion. Under Mack-Manley v. Manley, 122 Nev. 849, 855, 138 P.3d 525, 529 (2006), a district court will only retain jurisdiction “on matters that are collateral to and independent from the appealed order, i.e., matters that in no way affect the appeal’s merits.”

Here, the Supreme Court found that both parties agree that their property rights are the subject of the pending appeal and any modification of those property rights would not be collateral to or independent from the appealed order.

Marshal S. Willick
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