New Cases Added to MLAW: five COA Unpublished: Herrmann, Guardianship of C.T.F., Rodriguez, Gibson, and Ho

by | Aug 2, 2025 | Nevada Family Law Appeals | 0 comments

1.   Herrmann v. Herrmann, No. 88635-COA, Order of Affirmance (Unpublished Disposition, Sept. 20, 2024)

Jeremy and Kelly divorced in Nevada in 2022. Kelly was awarded sole legal and primary physical custody of their two minor children. After the divorce, Kelly moved from California to Pennsylvania with the children. Jeremy, who had moved from Nevada to Montana and later became a “full-time traveler,” filed a motion in Nevada to enforce the custody decree and for contempt. Kelly filed a petition to modify custody in Pennsylvania and requested the Nevada court relinquish jurisdiction. The Nevada district court (Sandra Unsworth) held a hearing, found that none of the parties resided in Nevada, and conferred with the Pennsylvania court, which agreed to assume jurisdiction. The Nevada court relinquished jurisdiction and denied Jeremy’s motion as moot.

Jeremy appealed, arguing that the Nevada district court erred in relinquishing jurisdiction over the child custody matter to Pennsylvania; the district court erred in allowing Kelly to unlawfully relocate with the minor children to California and later allowed them to unlawfully relocate from California to Pennsylvania without seeking his or the district court’s permission; and the district court’s refusal to find Kelly in contempt was improper.

In Nevada, under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a state retains exclusive, continuing jurisdiction over a custody matter until: a court determines that neither the child, the parents, nor any person acting as a parent resides in the state. NRS 125A.315(1)(b); UCCJEA § 202. A court may only make an initial custody determination if: It is the child’s home state (or was within 6 months), all other courts with jurisdiction decline, no other court has jurisdiction. NRS 125A.305; Friedman v. Eighth Jud. Dist. Ct., 127 Nev. 842 (2011). A motion for contempt must be supported by a fact-specific affidavit or declaration. NRS 22.030(2); WDCR 42(2).

The Court of Appeals held that there was no error in relinquishing jurisdiction: Nevada no longer had exclusive, continuing jurisdiction because none of the parties resided in the state. Kelly’s relocation did not preserve Nevada’s jurisdiction once all parties had left. A finding of no contempt was proper due to Jeremy’s failure to file a fact-specific affidavit.

 

2.   In the Matter of the Guardianship of C.T.F. and P.G.S., No. 87554-COA, Order of Reversal and Remand (Unpublished Disposition, Sept. 19, 2024)

Kristin, the biological mother of C.F. and P.S., consented to guardianships in 2018 due to personal struggles. Guardianships were granted to the children’s paternal grandparents in 2021. Kristin later petitioned to terminate the guardianships, asserting she had become a suitable parent. She had obtained employment, housing, a driver’s license, and was drug-free and attending therapy. The district court (Kriston Hill) denied the petition, applying a heightened standard requiring Kristin to prove both a material change in circumstances and that termination would substantially enhance the children’s welfare.

Kristin appealed, arguing that the district court erred in applying the heightened two-prong standard under NRS 159A.1915; and that the court abused its discretion in finding Kristin had not demonstrated a material change in circumstances or substantial enhancement of the children’s welfare.

In Nevada, a parent who consents to a guardianship must show only: material change in circumstances, and that they are restored to suitability (NRS 159A.1915(2)). If no consent was given, the parent must also show: that termination would substantially enhance the child’s welfare (NRS 159A.1915(1)(b)). There is a rebuttable presumption that a fit parent is preferred as guardian. (NRS 159A.061). This presumption can only be overcome by showing unfitness or extraordinary circumstances.

The Court of Appeals held that the district court erred in applying the two-prong standard. Kristin had initially consented to the guardianships, so only the material change and suitability prong applied. The district court abused its discretion. Kristin demonstrated a material change in circumstances and suitability, and even under the heightened standard, substantial enhancement was shown.

 

3.   Rodriguez v. Rodriguez, No. 86875-COA, Order of Affirmance (Unpublished Disposition, Sept. 16, 2024)

Enrique and Maria divorced in 2013. The court (Stacy Rocheleau) retained jurisdiction over the marital residence. In 2020, Enrique filed a motion to compel the sale of the residence, alleging Maria had delayed the sale. In 2023, the court granted Enrique’s motion and ordered the sale. Enrique then moved for attorney fees and costs totaling $43,031.25 and $2,057.18, arguing Maria’s defense was unreasonable. The court awarded only $24,281 in attorney fees, citing excessive time entries. A clerical error in the written order listed the full amount. Maria moved for clarification; Enrique countered with a motion for reconsideration. The court clarified the award was $24,281 and denied Enrique’s motion.

Enrique appealed, arguing that the district court abused its discretion by reducing Enrique’s requested attorney fees without providing sufficient reasoning or findings.

A prevailing party may be awarded attorney fees if the opposing party maintained an unreasonable position. Brunzell Factors (Brunzell v. Golden Gate Nat’l Bank, 85 Nev. 345, 455 P.2d 31 (1969)): Courts must consider: the advocate’s qualities, the character of the work, the work performed, and the result obtained.

The Court of Appeals held that the district court did not abuse its discretion. The court adequately considered the Brunzell factors and provided sufficient reasoning for reducing the fee award.

 

4.   Gibson v. Gibson, No. 87203-COA, Order of Affirmance, (Unpublished Disposition, September 19, 2024)

Lisa and Thomas divorced in 2003. Subsequent litigation over unpaid obligations led to judgments in 2008 and 2009, consolidated in 2015 for approximately $275,000 owed by Thomas to Lisa. Thomas filed for Chapter 13 bankruptcy, later converted to Chapter 7. Around $44,000 accumulated in the bankruptcy estate. In 2017, the bankruptcy court allowed Lisa to pursue garnishment of the funds. Due to delays and a lien by Lisa’s attorney, she failed to collect the funds before the 2015 judgment expired in 2021. Lisa’s attorney filed an interpleader action to determine ownership of the funds. In 2023, the district court (Stacy Rocheleau) awarded the funds to Thomas, finding Lisa’s judgment had expired.

Lisa appealed, arguing that the district court erred in failing to apply claim or issue preclusion based on the 2017 bankruptcy court order; and that the district court erred in finding that Lisa’s judgment had expired and that she had no right to the funds.

In Nevada, Claim Preclusion (Res Judicata) applies when: (1) The parties or their privies are the same, (2) A valid final judgment exists, (3) The subsequent claim was or could have been brought in the prior action. Five Star Cap. Corp. v. Ruby, 124 Nev. 1048 (2008).

Issue Preclusion (Collateral Estoppel) applies when: (1) The issue is identical, (2) The initial ruling was final and on the merits, (3) The party was involved in the prior litigation, (4) The issue was actually and necessarily litigated. Alcantara v. Wal-Mart Stores, Inc., 130 Nev. 252 (2014) Law of the Case Doctrine prevents re-litigation of issues already decided in earlier phases of the same case. Recontrust Co. v. Zhang, 130 Nev. 1 (2014). A judgment expires unless timely renewed. A writ of garnishment does not toll the statute of limitations. NRS 11.190; NRS 21.010.

The Court of Appeals held that claim and issue preclusion did not apply because the 2017 bankruptcy order did not resolve ownership of the funds and that the issues were not identical. The district court correctly found that Lisa’s judgment expired and she had no legal right to the funds.

 

5.   Ho v. Ho, No. 86775-COA, Order of Reversal and Remand (Unpublished Disposition, Sept. 19, 2024)

Brian and Bryanna were married for nearly seven years and had two minor children. They divorced in 2023. Bryanna was a stay-at-home parent during the marriage; Brian worked as a registered nurse. The parties agreed to joint legal and physical custody of the children. During the marriage, Brian withdrew approximately $30,000 from a Fidelity retirement account and used the funds to pay off community credit card debt. The district court (Charles Hoskin) valued the Fidelity account at $30,000 (pre-withdrawal) despite finding no marital waste. The court also awarded Bryanna $1,650/month in alimony for three years, imputing income to Brian based on his 2022 W-2 earnings, which included overtime.

Brian appealed, arguing the district court erred in valuing the Fidelity account at its pre-withdrawal amount despite finding no marital waste; and that the district court abused its discretion by imputing income to Brian for alimony purposes without substantial evidence.

In Nevada, community property must be valued at the time of the divorce decree unless there is a compelling reason (e.g., marital waste) for unequal distribution. Kogod v. Cioffi-Kogod, 135 Nev. 64 (2019); NRS 125.150(1)(b). A finding of waste requires evidence that funds were used for non-community purposes. Kogod, 135 Nev. at 75. In alimony determinations, courts must consider the factors in NRS 125.150(9) and may impute income only if a spouse is willfully underemployed. Rosenbaum v. Rosenbaum, 86 Nev. 550 (1970); Eivazi v. Eivazi, 139 Nev., Adv. Op. 44 (2023). Overtime may be included in income if it is substantial and can be determined accurately. Scott v. Scott, 107 Nev. 837 (1991)

The Court of Appeals held that the district court erred in valuing the Fidelity account at $30,000 without a finding of waste. The account should have been valued at its actual balance at the time of the decree. The district court abused its discretion by imputing $5,000/month in additional income to Brian without substantial evidence, especially given his joint custody responsibilities and lack of guaranteed overtime.

Marshal S. Willick
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