New Cases Added to MLAW: Four COA Unpublished: Gennardo, Anderson, Toliver, and Askew

by | Feb 2, 2024 | Nevada Family Law Appeals | 0 comments

Court of Appeals:

 

Gennardo v. Gennardo, No. 85370-COA, Order Affirming in Part, Reversing in Part, and Remanding (Unpublished Disposition, Nov. 22, 2023)

The parties married in 2002 and have three children. In May 2019, Dad filed a complaint for divorce. Mom struggled with extreme alcohol abuse and sometimes exhibited violent behavior. The district court (T. Arthur Ritchie) made specific best interest findings as to NRS 125C.0035(4) and concluded it was in the children’s best interest to have the parties share legal custody, with Dad having primary physical custody.

After Dad’s employer terminated his Nevada job but offered him a position in Texas he filed a motion seeking the children’s relocation to Texas. The district court temporarily granted his motion in advance of an evidentiary hearing. The district court never set or held an evidentiary hearing and a year later just entered a final decree concluding that the relocation was granted and would be permanent. Mom asked for reconsideration which the court denied. Mom appealed.

The COA found that the district court erred in its application of NRS 125C.0025’s custodial preference. However, they also found that the error did not affect the result because substantial evidence supported the best interest findings and custody decision. So, the COA did not reverse the decision to grant primary physical custody to Dad.

The COA found that the district court abused its discretion in relying on the de facto sole physical custody arrangement. The district court’s disregard of mom’s 16 years of primary caretaking was clearly erroneous. However, Mom did not show that the result of the hearing would have been different in the absence of the district court’s errors. The district court made numerous best interest findings in favor of Dad that were supported by substantial evidence.

The COA concluded that the district court did not abuse its discretion when it verbally permitted the children to temporarily relocate with Dad prior to conducting an evidentiary hearing. It is within the district court’s discretion to allow the temporary relocation under NRS 125C.0045(1)(a).

Lastly, the COA found that the district court abused its discretion in permitting the permanent relocation of the children to Texas without conducting an evidentiary hearing. There are required statutory findings under NRS 125C.007, and actual evidence is to be presented at an evidentiary hearing. In turn, mom’s constitutionally protected due process rights were violated. Therefore, the relocation matter was remanded for expeditious proceedings.

 

Anderson v. Blecha, No. 86292-COA, Order of Affirmance (Unpublished Disposition, Nov. 27, 2023)

Parties are parents of a minor child. Dad had primary physical custody and Mom was entitled to parenting time during certain holidays and school breaks. Mom learned that child’s half-sister reported that Dad had been abusing the children and consuming alcohol in excess to a school counselor.

Mom refused visitation with Dad and he returned to Nevada and filed a motion for an order to show cause. Mom filed a motion to modify child custody. After an evidentiary hearing, the district court (Kriston Hill) granted Mom’s motion to modify and granted her primary physical custody subject to Dad’s parenting time on certain holidays and school breaks. Dad appealed.

The Court of Appeals affirmed the district court’s decision finding that the district court did not abuse its discretion in modifying the physical custody arrangement and further concluding that the district court’s finding that Dad had an “absolute inability to co-parent” was supported by substantial evidence.

In making a custody determination, the district court’s sole consideration is the best interest of the child, NRS 125C.0035(1), and the court must consider the best interest factors set forth in NRS 125C.0035(4). The district court found that six of the factors favored Mom.

Lastly, Dad’s argument regarding the district court judge not recusing herself from the matter was waived because he stated that he believed her that she did not harbor any ill will toward him. The mere fact that the district court judge and Dad had gone to school together more than 20 years earlier does not, by itself, constitute an “extreme showing of bias [that] would permit manipulation of the court and significantly impede the judicial process and the administration of justice.”

 

Toliver v. Toliver, No. 85877-COA, Order of Affirmance (Unpublished Disposition, Nov. 29, 2023)

The parties were divorced in 2018 and share two minor children. Pursuant to a 2019 stipulation and order, the parties shared joint legal and physical custody on a week-on-week-off schedule. In December 2021, Dad sought to modify custody and child support asking for primary physical custody of the children based on one of the children’s preference and allegations that the child reported concerns and fears about the living situation at Mom’s residence.

After an evidentiary hearing, the district court (Bridget Robb) granted Dad primary physical custody of the children with Mom having some parenting time on Sundays. Dad was also granted legal custody over decisions regarding the children’s mental health. The court found the minor child’s testimony to be detailed and coherent. Mom appealed.

The Court of Appeals affirmed the district court’s decision concluding that the Mom’s due process rights were not violated by modifying legal custody with respect to the children’s mental health decisions and the court’s decision was supported by substantial evidence.

The COA refused to overturn the modification of physical custody because Mom did not challenge the finding of a substantial change. Further, the COA rejected Mom’s argument that the district court improperly utilized the therapist’s letter as a custody evaluation. The children wished to live with Dad and one of the minor children did not feel safe with Mom.

The COA did find that the district court erred in addressing the domestic violence best interest factor, but the other best interest factors are sufficient to uphold the district court’s determination.

 

Askew v. Askew, No. 84315-COA, Order of Affirmance (Unpublished Disposition, Dec. 13, 2023)

The parties were married and have one child. They agreed that Mom would stay at home after the birth. After changes in temporary custody due to a domestic violence incident, a trial was held. The divorce decree was filed in February 2022. The decree ordered the parties to share joint legal and physical custody of the child. The district court (Stacey Rocheleau) ordered that the parties have rotating custody so that the child spent three days with Mom and then three days with Dad.

Mom was awarded approximately $100,000 more than Dad in property, but she was also ordered to pay Dad an offset of $50,010 to equalize the distribution. Lastly, the court awarded Mom alimony of $800 per month for 72 months. Dad appealed.

The Court of Appeals affirmed the district court’s determinations. Specifically, the COA found that the district court did not abuse its discretion in awarding the parties joint physical custody. The COA determined that the district court failed to use the exact language when discussing one of the domestic violence incidents, but it was harmless error.

Also, the COA found that the disposition of the parties’ community property was correct. Further, the district court was found to not have abused its discretion in awarding Mom alimony. Mom’s award of alimony was just and equitable and supported by substantial evidence.

 

 

Matzdorff v. Bilkiss, No. 83870-COA, Order of Affirmance (Unpublished Disposition, Dec. 13, 2023)

 

Parties were divorced by stipulated decree in 2019 and share joint legal and physical custody of their two minor children. Both parties are self-employed and have had large fluctuations in income since the divorce. The decree required Dad to pay $715 a month in child support.

 

Eventually child support was lowered to $200, but Mom was awarded $7,063.75 in attorney fees.

 

Dad then filed a Motion for an Order to Show Cause to Enforce Court Order Regarding Defendant’s Income; for Sanctions and/or Attorney Fees and to Modify Child Support. The district court (Dawn Throne) denied his motion. The court found Dad’s motion was frivolous, without merit, and vexatious, and awarded Mom $2,000 for preparing for the hearing. Dad appealed.

The Court of Appeals affirmed finding that the district court did not abuse its discretion when it denied his request to modify child support based upon his assertion that Mom misrepresented her gross annual income. Also, the district court did not abuse its discretion when it declined to hold Mom in contempt for failure to comply with the district court’s prior order to produce financial disclosures every sixty days. Dad did not challenge the reasonableness of the award of the attorney fees so that argument was waived.

Lastly, the COA cautioned the district court about its language that “it will not permit the parties to re-litigate child support every year” and “will not allow the matter to be relitigated again in advance of a three year review.” However, the challenged language is not specifically ordered, so it did not impose an impermissible restriction in violation of NRS 125B.145(4).

 

 

Marshal S. Willick
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