New Cases Added to MLAW: Four COA Unpublished: Holmes, Bertuccini, Barral, and Ward

by | Aug 12, 2023 | Nevada Family Law Appeals | 0 comments

Court of Appeals:

Holmes v. Serrano, No. 85208-COA, Order of Reversal and Remand, (Unpublished Disposition, June 20, 2023)

Allison Holmes and Felipe Serrano were never married and have one minor child together. In 2021, Allison filed a petition seeking various forms of relief, including, as relevant here, primary physical custody. Felipe filed a counterclaim for joint physical custody. The district court directed the parties to mediation. The parties agreed to a custodial schedule, but were unable to agree about whether their custodial arrangement should be designated as primary physical custody in Allison’s favor or joint physical custody.

The district court ruled in Felipe’s favor after estimating that the child would spend approximately 156 nights per year with Felipe, which was 42 percent of the nights in a calendar year. Allison appealed. Allison argued that the district court misapplied the 40-percent guideline in determining that the parties’ custodial arrangement constituted joint physical custody.

The Court of Appeals determined that the district court erred in calculating overnights over the course of a calendar year instead of the distribution of the responsibilities for the child’s day-to-day care. The district court did not make best interest findings as required. The COA reversed and remanded the matter so that the correct legal standard for designating the arrangement can be applied.

 

Bertuccini v. Esposito, No. 84708-COA, Order of Reversal and Remand, (Unpublished Disposition, June 16, 2023)

Paul Bertuccini III and Lisa Espoito divorced in 2014 and have one minor child together. Their divorce decree outlined joint legal custody and primary physical custody to Lisa. The district court modified Paul’s parenting time in 2015 and 2016.

In 2021, Paul filed a motion seeking joint physical custody of the child, claiming a substantial change in circumstances affecting the welfare of the child which was sufficient to warrant a change in custody. The district court denied his motion on the ground that the passage of time and/or age of the child are not factors creating a substantial change of circumstances. Paul appealed.

The Court of Appeals reversed because the district court did not conduct an evidentiary hearing and its order failed to identify or address all of Paul’s allegations. The COA remanded the matter for further proceedings applying Myers v. Haskins, 138 Nev., Adv. Op. 51, 513 P.3d 527 (Ct. App. 2022).

 

Barral v. Barral, No. 86231-COA, Order of Affirmance, (Unpublished Disposition, June 15, 2023)

Dustin Barral and Megan Barral were divorced in 2012 and have two minor children. The divorce decree awarded Megan sole legal custody and primary physical custody of the children, subject to Dustin’s parenting time. Dustin has been incarcerated since 2019, so he has been unable to exercise his parenting time with the children.

Dustin filed a motion to modify custody seeking joint legal custody and resumption of parenting time on the grounds that he is scheduled to be released on parole in September 2023. The district court denied Dustin’s motion. Dustin appealed.

The Court of Appeals affirmed.  It will not disturb child custody determination without clear abuse of discretion. Dustin clearly failed to establish a substantial change in circumstances affecting the welfare of the children that would warrant a change to the current custodial schedule and his motion is premature as he has not been released yet.

 

Ward v. Villaflor, No. 84674-COA and 85148-COA, Order of Affirmance (Unpublished Disposition May 30, 2023)

Erik Ward and Svetlana Villaflor were never married and have two minor children in common.

In December 2019, the district court granted Svetlana primary physical custody of the children but permitted Erik to have one hour per week of supervised parenting time at Donna’s House, until Erik submitted to a psychological evaluation demonstrating that the children would be safe in his care. Erik filed a motion to set aside the order pursuant to NRCP 60(b), which the district court denied.  n an earlier appeal, the Court of Appeals reversed and remanded because the district court denied NRCP 60(b) relief without applying the Yochum factors.

In the meantime, Erik was barred from Donna’s House after an incident there.  Erik filed a “Motion for Visitation” seeking to re-establish his visitation.

After remand, the district court once again denied NRCP 60(b) relief but this time completed a thorough examination of the Yochum factors.  It also denied Erik’s visitation motion, as he had not obtained the ordered psychological evaluation.

Erik appealed from both orders, separately.

The Court of Appeals affirmed both decisions.  Because Erik did not properly comply with the district court’s directive related to the psychological evaluation, the Court of Appeals affirmed the district court’s decision to deny his visitation motion.  And the district court properly reviewed the 60(b) motion under the Yochum factors.

Marshal S. Willick
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