New Cases Added to MLAW: Four COA Unpublished: Hernandez-Basilio, Orgad, Cambra, and Kragen

by | Jan 29, 2024 | Nevada Family Law Appeals | 0 comments

Hernandez-Basilio v. Marquez-Hernandez, No. 84487-COA, Order of Affirmance (Unpublished Disposition, Oct. 13, 2023)

Parties were married and have two children. Following an altercation in 2020, Husband initiated divorce proceedings. After a four day trial, the district court (Rebecca Burton) entered a divorce decree in 2022 which awarded primary custody of the parties’ minor children to Wife subject to Husband’s parenting time from 3:00 pm on Fridays to 8:00 am on Mondays for three weekends out of the month.

The district court applied the domestic violence presumption against joint physical custody in reaching its determination. Further, the court awarded Wife the child tax credit, did not order Wife to reimburse Husband for half of the COVID-19 stimulus money she received, and ordered Husband to pay $1,118 per month in child support. Husband appealed.

The Court of Appeals wholly affirmed the district court’s divorce decree. The COA found that the district court did not abuse its discretion in its conclusions. The district court considered the required best interest factors and correctly applied the NRS 125C.003(1)(c) domestic violence presumption.

Wife will have custody for a greater portion of the calendar year because she was awarded primary physical custody which entitles her to receive the tax credit. Also, Husband’s initial dishonesty about his income was a compelling reason for the unequal distribution of the stimulus money. Husband was unable to prove that the district court’s decision reflected “a deep-seated favoritism or antagonism that would make fair judgment impossible.”

 

Orgad v. Orgad, No. 84545-COA, Order Affirming in Part, Reversing in Part, and Remanding (Unpublished Disposition, Oct. 19, 2023)

Parties were married in 1983 and divorced in August 2021. There were many property issues handled at trial. The district court (Stacy Rocheleau) accepted the wife’s valuation expert’s opinion as to the husband’s business and ordered alimony of $8,000 per month for 11 years.  Both parties appealed.

The Court of Appeals found that the district court abused its discretion as to alimony when Husband only makes approximately $7,500 a month and the district court found that he had his own financial needs of $5,000 per month. Further, the district court made no specific findings as to the length of alimony. The parties were married for 38 years, and there are questions on how Wife will provide for herself after 11 years.

The district court was ordered to make specific factual findings supported by substantial evidence and explain how the findings support the alimony amount and duration. However, the COA found that the district court did not abuse its discretion in its determination of marital waste. The COA rejected Wife’s non-specific arguments about Husband’s marital waste. No abuse of discretion in permitting, but not requiring, Wife to secure her property award with insurance on Husband’s life.  The matter was remanded for further proceedings.

 

Cambra v. Landino, No. 85093-COA, Order Affirming in Part, Reversing in Part, and Remanding (Unpublished Disposition, Oct. 24, 2023)

Parties were never married but have one minor child. Dad commenced a custody action against Mom in 2021 seeking joint legal and physical custody. Mom obtained a TPO against Dad on allegations of domestic violence. The district court (Thomas Gregory) denied Mom’s request for an extension of the TPO.

After trial, the district court entered a custody decree where it awarded the parties joint legal and physical custody of the child, established Dad’s child support obligation, determined that Mom was not entitled to child support arrears, and allocated the dependency tax exemption to the parties on alternating years. It held that it lacked jurisdiction to address property and debt issues between these unmarried parties.  Mom appealed.

Here, the district court thoroughly analyzed the best interest factors in its decision so the Court of Appeals refused to reweigh the evidence or reevaluate witness credibility on appeal. The COA rejected Mom’s other arguments (admission/denial of admission of evidence, and scheduling changes at trial) to broadly attack the district court’s custody determination as she did not show how they would have led to a different result at trial.

The COA also found that the district court did not abuse its discretion in calculating child support and in denying child support arrears. Also, the COA affirmed the district court’s decision regarding the child tax issue but the district court must order the parties to execute the necessary waiver documentation on remand.

However, the COA reversed the district court on the property disputes because the district court made an interlocutory determination that it lacked the jurisdiction to hear the issues, and under Landreth v. Malik, 127 Nev. 175, 177, 185-86, 251 P.3d 163, 164, 169-70 (2011) a district court judge sitting in family court has the authority to hear property matters between unmarried parties.

 

 

Kragen v. Dist Ct. (Kragen), No. 86626-COA, Order Granting Petition for Writ of Mandamus (Unpublished Disposition Oct. 30, 2023)

 

The parties were married and have three minor children. They lived in California and moved to Nevada sometime in early August 2022. By January 31, 2023, Mom returned to California and Dad remained in Nevada. There is a child custody jurisdiction issue because of the 6-month rule under NRS 125A.085(1).

Mom filed a UCCJEA declaration starting that the parties moved to Nevada on August 1, 2022, but in her answer, she said the parties moved to Nevada on August 3. Dad’s affidavit stated that he has lived in Nevada since August 2. The Nevada court temporarily granted them joint legal and physical custody which subjected Mom to inconsistent custody rulings from two courts. Eventually, the California court deferred to the Nevada court. The Nevada court determined that it had home state jurisdiction. Mom sought writ relief.

The Court of Appeals agreed with Mom that the district court arbitrarily and capriciously exercised its discretion in failing to consider all the evidence, instead basing its decision on a California declaration sating the move was on August 1 that she subsequently amended to say August 3 and the vague dates provided by Dad. Also, the COA agreed that the district court abused its discretion in making temporary custody orders without considering the children’s best interest. Further, the district court must reconsider its temporary custody order in light of any supported domestic violence allegations.  An evidentiary hearing is required when fact and credibility determinations must be made.

Based on the evidence offered by the parties, it is disputed whether the children lived in Nevada for a full 6 months before custody proceedings were initiated. The COA found that the Nevada court improperly relied on Mom’s original California declaration as conclusive. The district court should have held an evidentiary hearing to resolve the issue. Accordingly, the COA concluded that a writ of mandamus is warranted, and remanded.

 

 

Marshal S. Willick
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