Court of Appeals:

Kelsey v. Kelsey, No. 85223-COA, Order of Reversal and Remand (Unpublished Disposition, March 16, 2023)

When Scott and Nancy Kelsey were divorced, they had joint legal custody and Nancy had primary physical custody of their child.  Scott filed a motion to modify the order to sole legal and physical custody in his favor; Nancy opposed.

Following a non-evidentiary hearing on Scott’s motion, the district court denied his motion, finding that Scott’s allegations were insufficient to demonstrate a custodial modification or to require an evidentiary hearing under Rooney v. Rooney, 109 Nev. 540, 853 P.2d 123 (1993).  Scott appealed.

The Court of Appeals reversed, finding that the district court had weighed the merits of Scott’s assertions instead of accepting them as true and then determining whether, if true, the asserted facts established a prima facie case for modification requiring an evidentiary hearing by raising issues relevant to a substantial change in circumstances affecting the welfare of the child and the best interests factors, under Myers v. Haskins, 138 Nev., Adv. Op. 51, 513 P.3d 527 (Ct. App. 2022) and Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 983 (2022) (setting forth the grounds for modifying custody).

Rather than evaluating the merits of Scott’s individual allegations as it did below, the district court was required to accept those allegations as true and determine whether they presented a prima facie case for modification by raising issues relevant to the grounds for modification that are not cumulative or impeaching.

Since the district court did not “conclusively establish the movant’s claims are false” it was required to accept them as true and conduct an evidentiary hearing since they touched on the best interest factors, as he alleged that she failed to adequately respond to the child’s illness and allowed the child to drive her car without a license.  Denying the motion to modify custody without first conducting an evidentiary hearing was therefore an abuse of discretion because the district court did not reference the adequate cause standard or address whether Scott’s allegations presented a prima facie case for modification.

The matter was remanded for an evidentiary hearing.

 

Anaya-Alvarado (Edwards) v. Anaya-Alvarado, No. 84869-COA, Order of Affirmance (Unpublished Disposition, February 15, 2023)

During their four year marriage, Carlos Alberto Anaya-Alvarado and Brittany Lee Anaya-Alvarado had two children; they divorced in 2017.  Brittany transitioned to gender fluid/transgender and changed her name to Jasper.  Jasper married a new husband.

By stipulation and order in 2018, Jasper had sole legal and physical custody of the children. In 2019, again by stipulation and order, Jasper relocated to Virginia with both children.

In January 2021, Carlos filed a motion to modify custody based primarily on his concerns about the children’s gender fluidity and Jasper’s decision to support the use of some strong psychiatric medications that had been prescribed to the eldest child in 2020.

On May 16, 2021, the district court entered a temporary order granting Carlos joint legal custody that directed Jasper to “keep [Carlos] apprised of the children’s medical treatments.”  Jasper did not object to the temporary order or seek any other relief.

In the fall of 2021, Jasper and Carlos had a disagreement over whether to vaccinate the children against COVID-19 as a condition to sending them to visit with Carlos for Christmas 2021 per the 2019 order. In November 2021, Jasper filed a motion and request for order shortening time seeking an order to vaccinate the children against COVID-19 or postpone the children’s upcoming visit to Las Vegas.  The motion was not heard until January 2022; the district court denied Jasper’s motion, but by that time, Jasper had already withheld Carlos’s Christmas 2021 parenting time in violation of the 2019 order.  Immediately after the district court denied Jasper’s motion, Jasper vaccinated and boosted the children against COVID-19 anyway in violation of the district court’s temporary order and against Carlos’s wishes.

In May 2022, the district court held a full-day evidentiary hearing, where it again addressed Carlos’ January 2021 motion to modify custody, but this time for the purpose of determining permanent custody.  After the hearing, the district court issued a 39-page order with detailed findings of fact and conclusions of law, awarding Carlos primary physical custody of the children and providing that both parents would continue to share joint legal custody.  The district court disagreed that the children’s gender fluidity was a substantial change of circumstance affecting the welfare of the children. However, it found that Jasper’s violation of court orders regarding COVID-19 vaccination and withholding parenting time from Carlos and withholding parenting time from Carlos during Christmas 2021 did satisfy the requirement of changed circumstances. Because the change of physical custody would necessarily require the children to relocate from Virginia to Nevada, the district court also addressed the standard for relocation under NRS 125C.007 and found that relocation was warranted.  Jasper appealed.

The COA affirmed, finding that no one challenged the 2021 temporary legal custody order, that violation of court orders regarding vaccinations and denial of visitation can and did constitute changed circumstances, and that the district court adequately addressed all best interest factors, and finding insufficient evidence of bias or prejudice against Jasper’s transgender status and parenting style, noting that judicial rulings alone almost never constitute a valid basis for bias or partiality motion.

 

Womack v. Womack, No. 84350-COA, Order Affirming in Part, Reversing in Part and Remanding (Unpublished Disposition, March 15, 2023)

Albert Womack filed a complaint for divorce against Sharon Womack.  At the initial Case Management Conference (“CMC”), the parties were sworn in, testified, and the court resolved the property distribution issues and granted the divorce.  The district court then entered a written decree of divorce which required that Sharon to make a $23,850 payment to Albert to offset a withdrawal that she made from one of her community property retirement accounts. Sharon appealed.

The COA held that due process requires reasonable notice and an opportunity to be heard. The district court issued a notice to appear for a case management conference, which informed the parties of the possibility that the court would resolve issues presented in this case at the conference, as it was authorized to do when the issues are amenable to immediate resolution.

However, Sharon did not have prior notice that the withdrawal from her retirement account was among the issues that would potentially be litigated at the case management conference, and therefore, Sharon was deprived of the opportunity to be heard on the withdrawal issue prior to its resolution.

The district court therefore abused its discretion in resolving this issue; the decree was reversed insofar as it required Sharon to pay $23,850 to Albert based on the withdrawal and remanded for further proceedings on the withdrawal issue.  The divorce decree was affirmed in all other respects.

 

Cristos v. Tolagson, No. 84167-COA, Order of Affirmance and Limited Remand to Correct Clerical Error, (Unpublished Disposition, April 20, 2023)

Jordan Cristos and Sarah Tolagson share two minor children. Jordan and Sarah separated in February 2019, and Sarah obtained temporary protection orders (TPOs).

Despite the TPO in place, Jordan and Sarah were involved in an altercation in June 2019, in which Jordan placed Sarah in a chokehold, and she grabbed a knife to defend her child and herself. Jordan filmed her holding the knife. The police were called, and Jordan was arrested and apparently charged with battery constituting domestic violence, a misdemeanor, but the charges were dismissed when Sarah did not appear to testify at trial.

There was another incident in June 2020. Then the last significant conflict occurred in August 2021. In addition to domestic violence, Jordan was also accused of neglecting the children, which resulted in a child dependency case under NRS Chapter 432B alleging abuse and neglect.

Jordan and Sarah each filed complaints seeking primary physical custody and joint legal custody of the children. The cases were consolidated in June 2020. In August 2020, Jordan and Sarah attended mediation but were unable to reach an agreement. In October 2021, the district court held a six-day bench trial, after which Sarah was awarded primary physical custody and creating a “hybrid joint legal custody” arrangement.  Under that arrangement, Sarah was responsible for making day-to-day decisions for the children and Jordan was to have access to their medical and school reports, and to be involved in making major and moderate decisions concerning healthcare, education, and religious matters. The court also ordered Jordan to pay $1,985 per month in child support.

Jordan appealed, arguing that the district court erred by considering his inadmissible nolo contendere plea arising from his second battery arrest, the closed child dependency case, and hearsay from the CPS report.

The Court of Appeals affirmed, finding Jordan’s argument that the child dependency case was “dismissed” and should not have been considered was waived because he did not object to the discussion of the child dependency case at trial, did not cogently argue the point, and cited no authority supporting the proposition that if a case is dismissed, the facts of the case cannot be considered in a separate proceeding when supported by independent evidence.

The district court did not abuse its discretion when it awarded Sarah primary physical custody.  Since the assertion as to allegedly inadmissible evidence, was rejected, the district court did not abuse its discretion when it awarded Sarah primary physical custody based in part on that evidence.

The award of legal custody was also affirmed.  While the district court never explicitly conducted a best interest analysis for the determination of joint legal custody, the district court thoroughly examined the best interest factors necessary for the determination of physical custody.  These findings support the district court’s award of hybrid joint legal custody, especially considering the domestic violence findings and presumption.

However, as both parties agreed that the district court order does not accurately reflect Jordan’s child support obligation, upon remittitur, the district court shall enter an amended order correctly stating Jordan’s child support obligation of $1,895 per month, correcting a clerical error.

 

Jones v. Conway, No. 85265-COA, Order of Affirmance, (Unpublished Disposition, May 8, 2023)

Latisha Jones and Kevin Conway were divorced after reaching a settlement. The parties were to share joint legal custody of their two minor children with Latisha exercising primary physical custody. Shortly after, Kevin filed a motion for an order to show cause, alleging in part that Latisha was failing to comply with the decree in multiple ways, including that she had left the state multiple times, once with the children, without telling him, resulting in him not receiving some of his parenting time. The district court entered an order per the parties’ stipulation that they were on notice that neither party may relocate without first obtaining written/email permission from the other parent or court order and neither party may move first and ask for forgiveness later.

Kevin later filed a motion alleging that Latisha had relocated with the children to Louisiana and seeking both return of the children and an award of primary physical custody. Latisha filed an opposition and counter-motion for relocation, admitting she had already relocated with the children to Louisiana and requesting that the court permit her to do. The district court denied Latisha’s request for relocation and granted Kevin’s motion for primary physical custody of the children. The district court concluded that Latisha failed to obtain Kevin’s written consent to relocate the children or seek court permission to do so until after she had already relocated, thereby violating NRS 125C.006. Further, the court concluded that Latisha failed to provide a compelling excuse for her failure to comply with the statute and that she failed to make a threshold showing in favor of relocation under NRS 125C.007. Latisha appealed.

The Court of Appeals affirmed, finding that Latisha failed to set forth any cogent explanation as to how the district court supposedly misapplied the statute, and that it was undisputed in district court that Latisha relocated with the children to Louisiana without first obtaining Kevin’s consent or the court’s permission, and therefore, there was no error in the district court’s conclusion that Latisha violated the statute.

Latisha’s claim that the district court failed to consider evidence of Kevin’s domestic violence was rejected since Latisha wholly failed to raise this issue at the evidentiary hearing and neither party testified nor admitted any evidence concerning alleged domestic violence.

Marshal S. Willick
Latest posts by Marshal S. Willick (see all)