New Cases Added to MLAW: five COA Unpublished: Einiger, Lopez, Arevalo, Loomis, and Harris

by | Aug 11, 2025 | Nevada Family Law Appeals | 0 comments

1.   Kenneth Einiger v. The Eighth Judicial District Court (Hon. Bill Henderson), No. 90055-COA, Order Granting Petition for Writ of Mandamus (Unpublished Disposition, May 22, 2025)

Kenneth and Kimberly divorced in 2014 under a stipulated decree requiring Kenneth to pay Kimberly alimony and other financial obligations. Kenneth failed to comply with the decree, prompting Kimberly to file a motion under NRS 125.180 to reduce arrears to judgment. Before the motion was resolved, Kimberly discovered Kenneth was selling a condominium he purchased post-divorce and recorded a lis pendens against the property. The lis pendens caused the pending sale to fall through. Kenneth moved to expunge it, but the district court denied the motion. Kenneth petitioned for a writ of mandamus to compel the district court to expunge the lis pendens.

Kenneth argued that the district court abused its discretion by refusing to expunge a lis pendens recorded against Kenneth’s separate property in a post-divorce monetary enforcement action.

In Nevada, a lis pendens may only be recorded in an action that affects title to or possession of real property. NRS 14.010(1); Levinson v. Eighth Jud. Dist. Ct., 109 Nev. 747 (1993). A lis pendens is not appropriate in actions seeking only monetary judgments. Weddell v. H20, Inc., 128 Nev. 94 (2012); Tahican v. Eighth Jud. Dist. Ct., 139 Nev. 11 (2023). Fraudulent transfer claims may justify a lis pendens, but must be pled with particularity. NRS 112.180; NRCP 9(b).

The Court of Appeals held that the district court abused its discretion by denying the motion to expunge the lis pendens because Kimberly’s claims were purely monetary and did not affect title or possession of the property.

 

2.    Claudia Lopez v. Sergio Penaloza, No. 88714-COA, Order Affirming in Part, Reversing in Part and Remanding (Unpublished Disposition, June 3, 2025)

Lopez and Penaloza married in 2015 and had three children, two of whom were minors at the time of divorce. Lopez filed for divorce in 2023, seeking sole legal and physical custody, alimony, and child support arrears. Penaloza requested joint legal custody and initially, primary physical custody for Lopez. The district court (Stephanie Charter) awarded joint legal and physical custody, reduced Penaloza’s child support obligation, waived child support arrears that had accrued under temporary orders, and denied Lopez alimony.

Lopez appealed, arguing that the district court abused its discretion by awarding joint physical custody without analyzing the statutory best interest factors; that the court erred in waiving child support arrears; and that the court abused its discretion in denying alimony without considering all statutory factors.

In Nevada, custody determinations must be based on the best interest of the child, considering all twelve factors under NRS 125C.0035(4). Davis v. Ewalefo, 131 Nev. 445 (2015). A court may not retroactively modify or waive child support arrears. NRS 125B.140(1)(a); Day v. Day, 82 Nev. 317 (1966).  Alimony determinations must consider the factors listed in NRS 125.150(9), including financial condition, earning capacity, standard of living, and contributions as a homemaker. Kogod v. Cioffi-Kogod, 135 Nev. 64 (2019); Forrest v. Forrest, 99 Nev. 602 (1983).

The Court of Appeals held that the district court abused its discretion by failing to analyze the best interest factors and consider domestic violence in awarding joint physical custody; the court erred in waiving child support arrears, which are vested and not subject to retroactive modification; the court failed to consider all required alimony factors, warranting remand.

 

3.    Jesus Arevalo v. District Court (Hoskin), and Catherine Delao, No. 90266-COA, Order Denying Petition for Writ of Mandamus and/or Prohibition (Unpublished Disposition, June 5, 2025)

Arevalo filed a petition for a writ of mandamus and/or prohibition. He challenged a district court order that denied his motion to disqualify Judge Charles J. Hoskin. Arevalo also sought to compel the district court to comply with a prior writ of mandamus issued by the Court of Appeals in Docket No. 86607-COA.

Arevalo argued that the district court erred in denying his motion to disqualify the presiding judge and in allegedly failing to comply with a prior writ of mandamus.

A writ of mandamus is available to compel the performance of a legal duty or to control an arbitrary or capricious exercise of discretion. NRS 34.160; Int’l Game Tech., Inc. v. Second Jud. Dist. Ct., 124 Nev. 193 (2008). A writ of prohibition may be issued to prevent a district court from acting in excess of its jurisdiction. NRS 34.320; Smith v. Eighth Jud. Dist. Ct., 107 Nev. 674 (1991). Mandamus and prohibition are extraordinary remedies and are granted only when there is no plain, speedy, and adequate remedy at law. Pan v. Eighth Jud. Dist. Ct., 120 Nev. 222 (2004).

The Court of Appeals denied the petition, finding that Arevalo failed to demonstrate that extraordinary relief was warranted.

 

4.    Kasey Loomis v. Second District Court (Robb), and Kimberly Loomis, No. 90274-COA, Order Granting Petition for Writ of Mandamus (Unpublished Disposition, June 10, 2025)

Kasey and Kimberly were married in 2016 and share two minor children. Kimberly filed for divorce in November 2024, seeking sole legal and primary physical custody. At a February 2025 CMC, the district court (Bridget Robb) awarded Kimberly temporary primary physical custody and restricted Kasey to one supervised visit and one supervised video call per week. The court based its decision on concerns about Kasey’s mental health and credibility, but did not hold an evidentiary hearing or make detailed findings. Kasey petitioned for a writ of mandamus, arguing that the court improperly awarded de facto sole custody without proper findings or procedures.

Kasey argued that the district court abused its discretion by awarding de facto sole physical custody without making the findings required under Roe v. Roe; that the district court was required to schedule a trial or evidentiary hearing to resolve custody within six months under SCR 251; and that the court erred by suggesting a psychological evaluation without complying with NRCP 16.22.

In Nevada, a district court may only award sole physical custody if it finds the noncustodial parent is unfit or provides specific findings explaining why primary custody is not in the child’s best interest. Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274 (Ct. App. 2023). Temporary custody orders must be supported by findings and must consider less restrictive alternatives. In re Temporary Custody of Five Minor Children, 105 Nev. 441 (1989). Custody matters must be resolved within six months of being contested unless the court makes specific findings justifying delay. SCR 251. A psychological evaluation in custody cases must comply with NRCP 16.22, including scope and justification.

The Court of Appeals held that the district court abused its discretion by awarding de facto sole custody without sufficient findings or consideration of less restrictive alternatives. The court failed to comply with SCR 251 by not scheduling a trial or evidentiary hearing within six months. The court erred by suggesting a psychological evaluation without following NRCP 16.22.

 

5.    Ronald Harris v. Jennifer Figueroa, No. 88930-COA, Order of Reversal and Remand (Unpublished Disposition, June 10, 2025)

Harris and Figueroa divorced in 2017 and share four children. Harris was later incarcerated after pleading guilty to sexually abusing his stepdaughter (Figueroa’s daughter from another marriage). In 2020, Figueroa was awarded sole legal and physical custody of the children. Harris filed a motion seeking parenting time and contact with his children, including phone calls and mail access. The district court (Michele Mercer) denied the motion without an evidentiary hearing, citing res judicata and the children’s best interests.

Harris appealed, arguing that the district court abused its discretion by denying Harris’ motion for parenting time without holding an evidentiary hearing; that the district court’s reliance on res judicata was not appropriate; and that the court erred by failing to consider less restrictive alternatives to denying contact.

In Nevada, a district court must hold an evidentiary hearing on a motion to modify custody if the movant presents a prima facie case showing: (1) A substantial change in circumstances affecting the child’s welfare, and (2) That modification is in the child’s best interest. Rooney v. Rooney, 109 Nev. 540 (1993); Ellis v. Carucci, 123 Nev. 145 (2007); Romano v. Romano, 138 Nev. 1 (2022). A sole physical custody order must be supported by specific findings, including: a finding of unfitness or an explanation of why primary custody is not in the child’s best interest. Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274 (Ct. App. 2023). Res judicata does not apply where the issue has not been previously litigated or decided. Martin v. Martin, 120 Nev. 342 (2004).

The Court of Appeals held that the district court abused its discretion by denying Harris’ motion without an evidentiary hearing. Res judicata did not apply because the issue of parenting time had not been previously adjudicated. The court failed to consider less restrictive alternatives and did not make the findings required under Roe.

Marshal S. Willick
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