COA Advance Opinions
Myers v. Haskins, 138 Nev. ___, ___ (COA Adv. Opn. No. 51, June 30, 2022)
Prior to their divorce, Caleb Haskins and Lisa Myers had one minor child, S.H., of whom they shared joint legal custody. Caleb had sole legal custody for medical decisions, however, and primary custody of S.H. Lisa was allotted, at minimum, spring break and summer break for parenting time as she lived in Nevada while Caleb lived in Oregon. In 2020, Lisa failed to return S.H. to Caleb after summer break because S.H. allegedly expressed fear about returning to Caleb. When Caleb filed a motion requesting that the court enforce the custody order to have Lisa return S.H., to modify Lisa’s parenting time to virtual, and to issue a standard behavior order, Lisa filed a countermotion to modify physical custody. She alleged that Caleb medically, physically, and educationally neglected S.H.; verbally and emotionally abused S.H.; and denied Lisa parenting time and substantially interfered with it when it did occur.
The district court denied Lisa’s countermotion to modify physical custody without holding an evidentiary hearing, concluding that there was no substantial change in circumstances affecting S.H.’s welfare and that nothing Lisa provided proved that S.H.’s best interest would be served by the modification. Lisa appealed, claiming that the district court abused its discretion in denying her countermotion without first holding an evidentiary hearing and claiming that she presented a prima facie case for modification by providing declarations and informal offers of proof.
On appeal, the district court was found to have abused its discretion in weighing the evidence and making credibility determinations resulting in a case-ending custody decision based on conflicting evidence without holding an evidentiary hearing. Lisa’s allegations gave adequate cause for an evidentiary hearing, and no reasonable judge could have found that she failed to demonstrate a prima facie case for modification had the judge accepted as true the allegations that Lisa provided in her declarations. In order to exercise the Rooney discretion to deny a motion for custody modification without an evidentiary hearing, the district court must find that the movant failed to demonstrate a prima facie case for modification by looking solely to the movant’s proper allegations, with the single exception of the situation in which the non-movant’s filings “conclusively establish[es]” that the movant’s claims are false. Here, the district court relied upon the nonmovant’s allegations and weighing the competing claims.
Thus, the district court’s judgment was reversed and remanded with instructions to hold an evidentiary hearing.
COA Unpub
Hascheff v. Hascheff, No. 82626, Order Affirming in Part, Reversing in Part, and Remanding (Unpublished Disposition, June 29, 2022)
Pierre Hascheff and Lynda Hascheff divorced in 2013, when Pierre was elected as a Justice of the Peace for Reno Justice Court. They reached a Marital Settlement Agreement (MSA) which included an “Indemnity and Hold Harmless” provision, which had Lynda agree to defend and indemnify Pierre for half the costs of any defense and judgment if Pierre were to be sued for malpractice. If enforcement of the decree was necessary, the prevailing party would be entitled to reasonable attorney fees and costs. In 2018, Pierre was subpoenaed as a witness in a trust litigation dispute. A few months later, his former client in the trust litigation filed a complaint for legal malpractice against Pierre.
Though the malpractice case was stayed pending resolution of the collateral trust litigation, Pierre notified Lynda in 2020 that he was seeking reimbursement of fees and costs associated with his participation as a witness in the trust litigation case, as well as the fees and costs incurred as a party in the stayed malpractice case. Lynda did not pay Pierre, claiming that Pierre had not been sued for malpractice in being called as a witness, and that he had not timely notified her about the malpractice case. The district court ruled that while the fees and costs incurred by Pierre in both the collateral trust litigation and the legal malpractice case were covered by the Indemnity and Hold Harmless provision, he was barred from recovering based on the doctrine of laches. Pierre appealed.
The Court of Appeals found that the district court was correct in recognizing that the indemnification provision at issue did not require Lynda to be notified of the litigation by a certain time; however, the delay in notification adversely affected Lynda because she was given no say in the fees and costs that Pierre expended, and Pierre’s lack of transparency about the amount precluded recovery. Furthermore, the interpretation of an agreement-based divorce decree presented a question of law. The MSA did not allow for indemnification for legal fees and costs incurred by Pierre while acting in his professional capacity, such as testifying as a witness, and Pierre incurred the obligation when he hired a lawyer to defend his interests as a witness. This part of the district court’s order was affirmed.
However, the district court did abuse its discretion in applying laches to grant Lynda’s motion and deny Pierre’s request for indemnification in the malpractice action, because Lynda was unable to demonstrate the necessary legal prejudice resulting from any alleged delay in notification. On remand, the district court must determine whether the fees and costs incurred in the malpractice action were covered by the indemnification provision, and must determine which party was the prevailing party in order to consider an award of reasonable attorney fees and costs in accordance with MSA § 35.1.
Thus, the judgment of the district court was affirmed in part, reversed in part, and remanded.
Gold v. Gold, No. 83078, Order Dismissing in Part, Affirming in Part, Reversing in Part, and Remanding (Unpublished Disposition, June 30, 2022)
Victor Gold and Judith Gold divorced in 2019 by way of a stipulated decree that had them share joint legal and physical custody of their three minor children while Victor also paid child support. While the parties’ timeshare provided that Victor would have the children from Monday to Wednesday and Judith would have them for the remainder of the week, their eldest child would have teenage discretion as to how long he stayed with each parent so long as he spent at least two days each week with each parent. When Victor later asserted that he had not seen the eldest child, he filed a motion for an order to show cause, sought enforcement of the custody schedule, and wanted to change to a week on/week off custody schedule. A hearing on the motion in November 2020 changed the physical custody designation to give Judith primary physical custody. Victor then filed a motion to modify the timeshare, requesting a week on/week off timeshare while maintaining a joint legal and joint physical custody arrangement. He appealed after being denied.
The district court was found to have abused its discretion in modifying the parties’ physical custody arrangement because it did not consider any evidence of the parties’ actual timeshare or whether modification of the custody designation was in the children’s best interest. Thus, the judgment of the district court was dismissed in part, affirmed in part, reversed in part, and remanded.
Luciano v. Luciano, No. 83522, Order Dismissing in Part and Affirming in Part (Unpublished Disposition, July 7, 2022)
Frank Luciano initiated divorce and child custody proceedings in October 2019, to which Amy Luciano filed an answer. The trial management order was provided to both parties in open court, but Amy failed to appear at the calendar call. Though the district court left the matter on calendar to allow Amy another chance to present the evidence, she did not appear at the trial, so the district court took evidence from Frank before entering a final decree of divorce and awarding him sole legal and sole physical custody of the parties’ minor child. If Amy brought the matter back before the court, the district court would consider evidence to re-establish contact between Amy and the child.
Two months later, Amy filed a motion to set aside the decree, asserting that she had not been served with the summons, complaint, or other order in the case. She asserted that the decree was entered as a result of fraud, misrepresentation, or misconduct, and that Frank previously committed domestic violence against her, that she did not consent to the proceedings, and that her substantial rights had been infringed upon, amongst other things. The district court denied her motion, concluding that there was no basis to set aside the decree as the record established Amy was provided written notice of the calendar call and trial date in open court, and yet failed to appear at either hearing. Amy’s second NRCP 60(b) was similarly denied. Amy appealed.
Because Amy had not made timely appeals of either the decree of divorce or the NRCP 60(b) motions, the Court lacked jurisdiction to consider her appeal and dismissed the challenges to the decree of divorce. Regarding her NRCP 60(b) challenges, however, she had failed to demonstrate why she was entitled to NRCP 60(b) relief because the record demonstrated that she was properly served with the summons and complaint. Furthermore, because the district court took evidence before making its custody determination and did not award custody on a default basis without an evidentiary hearing, the district court was not conclusively found to have awarded custody as a means of punishment.
Thus, the judgment of the district court was affirmed.
SCT Advance Opinions
Martinez v. Avila, Jr., 138 Nev. ___, ___ (Adv. Opn. No. 49, June 30, 2022)
Rosie M. and Henry O. were in an off-and-on relationship between 1999 and 2017; Rosie was also in an off-and-on relationship with Ignacio A., Jr., between 2008 and 2019. When Rosie became pregnant with minor child A.A. in 2011, she signed a Voluntary Acknowledgement of Paternity with Henry, declaring him as the only possible father and refusing Ignacio’s requests for a paternity test. In 2013, Rosie gave birth to a second child, J.A., who was tested and found to be Ignacio’s biological child. While spending time with J.A., Ignacio came into contact with A.A. and again questioned whether he was the father. Henry showed Ignacio a screenshot of a purported DNA test showing Henry as A.A.’s father, but Ignacio thought it looked suspicious and took a separate test to confirm that he was, in fact, A.A.’s father. Ignacio then filed an amended complaint for custody, requesting a paternity determination for A.A., for A.A.’s name and birth certificate to be amended, and for him to be awarded joint physical and legal custody of A.A.
The district court found that Ignacio’s paternity challenge was barred because A.A. was over three years old, and that he failed to demonstrate clear and convincing evidence of fraud, barring his suit by claim preclusion.
On appeal, the Supreme Court of Nevada reversed and remanded the decision, requiring a court-ordered paternity test. The test found Ignacio to be A.A.’s biological father, and the following evidentiary hearing confirmed Ignacio as A.A.’s father, changed A.A.’s name, amended A.A.’s birth certificate to reflect Ignacio’s last name, and gave Ignacio and Rosie joint physical custody of A.A. Rosie and Henry jointly appealed, relying largely on California caselaw and Love v. Love in asserting that the court failed to distinguish between biological and legal paternity.
However, in a paternity dispute, NRS 126.051 controlled, and the district court was found to have properly applied NRS 126.051(2) in determining that the court-ordered DNA test established Ignacio as A.A.’s natural father, and that this proved a legal parent and child relationship enough to entitle Ignacio to parental rights. California caselaw was inapposite, as the NPA addressed the circumstances within Nevada and permitted Ignacio to rely on conclusive genetic test results to establish a father and child relationship with A.A. Furthermore, the Nevada Legislature amended NRS 126.051 to provide that positive genetic test results were conclusive on the paternity issue. Finally, the district court was also found to have not abused its discretion in awarding joint physical custody of A.A. to Rosie and Ignacio, as the decision was consistent with the parental statutes and preferences within NRS 125C.0015, NRS 125C.0025, and NRS 125C.0035(3)(a).
Thus, the district court’s order was affirmed.
Blount v. Blount, 138 Nev. ___, ___ (Adv. Opn. No. 52, July 7, 2022)
Justin Blount and the children’s biological mother, a member of the Hualapai Tribe, had two minor children before they divorced. The Tribal Court of the Hualapai Tribe in Peach Springs, Arizona awarded temporary custody of the children to the mother, but when the mother passed, Justin was given custody to live with them and his wife, Stephanie Blount, in Nevada. A Nevada district court declared Justin and Stephanie as the children’s legal parents by a decree of adoption, and rejected Paula Blount, the children’s paternal grandmother’s, separate petition for grandparent visitation because the Tribal Court still had jurisdiction over such issues. Paula then petitioned the Tribal Court for grandparent visitation, and when neither Justin nor his counsel responded to the notice of the hearing and motion, the Tribal Court granted joint custody to Paula and Justin.
Justin filed a challenge to Paula’s attempt to register the Tribal Court custody order, arguing that Stephanie was entitled to and yet did not receive notice of the Tribal Court custody hearing; that the Tribal Court lacked jurisdiction to issue the custody order under the UCCJEA; and that the Tribal Court had entered a superseding custody order granting joint custody to the children’s maternal grandparents as well. When the district court found that the Tribal Court had continuing, exclusive jurisdiction over all custody issues regarding the children, Justin and Stephanie appealed.
Neither Justin nor Stephanie filed their challenges to Paula’s request by the deadline provided in NRS 125A.465(6). The statute’s plain and unambiguous language, as well as clear evidence of the drafters’ intent, meant that the 20-day timeline under the UCCJEA was to be strictly applied. Justin and Stephanie’s other arguments could have been brought within the 20-day window, but were not. Thus, the district court’s order registering the Tribal Court custody order was affirmed.
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