Martin v. Martin, 138 Nev. ____, ____ (Adv. Opn. No. 78, Dec. 1, 2022)
This appeal considers whether an indemnification provision in a property settlement incident to a divorce decree is enforceable where a divorcing military member agrees to reimburse his or her spouse should the member elect to receive military disability pay rather than retirement benefits. Federal law precludes state courts from dividing disability pay as community property in allocating each party’s separate pay, and courts may not order the reimbursement of the non-member spouse to the extent of this diminution. However, the Court concluded that state courts do not improperly divided disability pay when they enforce the terms of a negotiated property settlement as a matter of contract, or in accordance with res judicata, even if the parties agreed on a reimbursement provision that the state court would lack authority to otherwise mandate. Lastly, the Court held that a district court does not abuse its discretion by awarding pendente lite attorney fees under NRS 125.040 without analyzing the Brunzell factors because those factors consider the quality of the work already performed, in contrast to NRS 125.040 which is prospective in nature.
Hammer v. Rasmussen, No. 82977, Order of Affirmance (Unpublished Disposition, Oct. 27, 2022)
This is an appeal from a district court order denying a motion for NRCP 60(b) relief in a child custody matter in a same-sex relationship. The underlying custody action was initiated in 2012. After the child’s birth, both parties were listed on the birth certificate, with Hammer listed as the mother and Rasmussen listed as the father, despite the fact that Rasmussen was not the child’s biological father. After Rasmussen filed a motion seeking temporary orders regarding child custody and support, Hammer opposed and sought dismissal, arguing that Rasmussen lacked a parental relationship with the child and that the district court lacked jurisdiction under the UCCJEA.
The district court determined that it had jurisdiction over the case and the parties, that both parties were the child’s parents, established a temporary custodial arrangement, and sent the parties to mediation. Hammer filed a motion for reconsideration of the district court’s order, arguing that the district court should either dismiss the complaint on its merits or, in the alternative, set the matter for an evidentiary hearing on parentage. The district court denied Hammer’s request for dismissal, but deferred the ruling on the request to set aside the initial parentage determination and set the matter for an evidentiary hearing on the issues of parentage, custody, and support.
At some point, the child’s biological father was joined to the case and all parties involved stipulated to the custody arrangement reflected in the final order resolving all issues, which was entered in November 2013. The order provided that all three parties would share joint legal custody of the child, while Hammer and Rasmussen would have joint physical custody and the biological father would have limited parenting time.
Later on, Hammer filed a motion seeking relief under NRCP 60(b) from the district court’s original orders establishing parentage and custody, arguing that the district court lacked jurisdiction to enter the orders and that they are therefore void. The district court denied the motion and Hammer appealed.
On appeal, Hammer set forth various arguments as to why the district court lacked jurisdiction to determine the issues of parentage and custody in its original 2012 and 2013 orders. The Court held that Hammer’s jurisdictional challenges came too late, and affirmed the district court’s order denying NRCP 60(b) relief.
Walent v. Petterson, No. 84057, Order of Reversal and Remand (Unpublished Disposition, Nov. 9, 2022)
This is an appeal from a post-decree order modifying child custody. Petterson initiated the underlying paternity and custody action in June 2012. Pursuant to a decree of paternity, the parties shared joint legal custody and Walent was awarded primary physical custody of their minor child. The district court later modified the parties’ parenting plan and awarded them joint legal and joint physical custody.
In November 2021, Walent filed a motion seeking a court order requiring the parties to attend group therapy, as she was struggling with the child’s behavior. Rather than filing an opposition, Petterson filed a competing motion to modify custody. The district court set Walent’s motion for a hearing and summarily denied Petterson’s motion on the basis that the matter was already set to be heard on Walent’s motion and that all matters relating to custody and visitation would be addressed at that hearing.
After the hearing, the district court modified custody and awarded Petterson primary physical custody, summarily concluding that there had been a substantial change in circumstances warranting a custody modification and that it was in the child’s best interest to award Petterson primary physical custody. Walent appealed.
On appeal, Walent argued that the district court abused its discretion in modifying custody without making sufficient findings as to the best interest of the child. The Court confirmed that the district court failed to make specific, relevant findings as to the best interest factors and remanded for further proceedings.
Douglas v. Douglas, No. 84129, Order of Reversal and Remand (Unpublished Disposition, Nov. 17, 2022)
This is an appeal by Richard from a district court order concerning child custody and support. Melissa also cross-appealed from the same judgment concerning child custody and a denial of attorney fees and costs. The parties were divorced by way of a stipulated decree of divorce in 2014. The decree awarded the parties joint legal custody over their five children, and awarded Melissa primary physical custody with Richard exercising parenting time on Tuesday nights and alternating weekends.
Richard filed a motion to modify custody, for a child interview, for therapy, to enforce visitation, for permission to obtain a passport, and to modify child support in November 2021, based on an altercation between Melissa and their oldest son in September 2021. In his motion, Richard argued that an incident occurred at their exchange in which Melissa told their oldest son he was not allowed to leave with Richard and that, if he did so, he would not be able to return home. Melissa allegedly refused to allow the child to collect his belongings and later shut off his cell phone and access to his bank accounts. Richard claims that, with few exceptions, their oldest son has resided with him since that incident.
In her opposition, Melissa denied that she prohibited their oldest son from returning home and indicated that the child decided to go with Richard to escape discipline from failing to timely complete schoolwork and from sneaking out of the house to visit his girlfriend. She also argued that Richard did not present a substantial change in circumstances sufficient to warrant a modification of the custody order. Lastly, Melissa sought reimbursement of attorney fees and costs, arguing that Richard’s motion was frivolous.
The district court held a non-evidentiary hearing in this matter and denied Richard’s request to modify custody and for an evidentiary hearing, stating that Richard had failed to present a prima facie case for modification. The court made findings that it had no problem granting the 17-year-old teenage discretion with where he resided and denied Richard’s request to interview the children and for a modification of support. The district court also denied Melissa’s request for attorney fees and costs.
On appeal, Richard argued that the district court abused its discretion when it denied his motion to modify without holding an evidentiary hearing. He argued that he had essentially been exercising primary physical custody of their oldest son since September 2021 and that this arrangement is inequitable as he is still providing child support on that child’s behalf to Melissa. Melissa argued that the district court erred when it gave their oldest son teenage discretion without clarifying that the parties must still substantially comply with the custodial agreement in the divorce decree, which awarded primary physical custody to Melissa, and that it abused its discretion when it declined to award her attorney fees and costs as she was the prevailing party.
Richard’s allegation in his underlying motion, if assumed true, rise to the level of a substantial change of circumstances affecting the welfare of the child and that the child’s best interests could be served by a modification. Because Melissa had not conclusively refuted Richard’s claims at that stage of the proceedings, the district court abused its discretion in refusing to hold an evidentiary hearing on Richard’s motion to modify custody.
Additionally, the district court’s grant of teenage discretion has resulted in the child almost exclusively residing with Richard, yet the order allowed Melissa to retain primary physical custody of the child and she therefore still collected child support from Richard for this child. Under those circumstances, the Court concluded that the district court abused its discretion in awarding teenage discretion and remanded for further proceedings.
Silver v. Towner, Nos. 83191 and 84999, Order of Affirmance (Unpublished Disposition, Nov. 23, 2022)
These related appeals come from a district court order regarding child support and the denial of a motion to set aside a judgment. DAFS initiated child support proceedings on behalf of Towner against Silver in 2017. Silver was determined to be the legal father and a child support order was issued. Silver has since repeatedly filed documents challenging the court’s jurisdiction, the paternity decision, and the child support order. After a June 29, 2021 hearing, the district court entered an order reducing Silver’s arrears to judgment and denying his various motions challenging past orders. Silver appealed that order in Docket 83191-COA.
Silver continued to file motions challenging past orders and requests to set aside. In June 2022, the child support hearing master recommended denying one of Silver’s motions to set aside because the district court had previously denied the same motion on at least three prior occasions. Silver did not object to this recommendation and the district court approved and adopted the recommendation as an order filed July 1, 2022. Silver appealed that order in Docket 84999-COA.
In Docket 83191-COA, Silver argues that DFAS violated his constitutional rights, but failed to offer any cogent argument explaining how his constitutional rights were violated or otherwise challenging the basis for the district court’s decision. Similarly in Docket 84999-COA, Silver offered no argument as to why he is entitled to relief in light of the fact that he failed to timely file an objection to the hearing master’s recommendation. As such, the Court affirmed the lower judgments.
Luong v. Vahey, No. 83929, Order Affirming in Part, Reversing in Part and Remanding (Unpublished Disposition, Nov. 30, 2022)
This is an appeal from a district court post-decree order denying a motion for relief under NRCP 60(a) and (b)(1). During their marriage, the parties created college savings accounts for their three minor children (referred to as 529 accounts). During their divorce, the parties disputed how to divide the accounts, which were funded by Luong, her family, and Vahey. After an evidentiary hearing the court entered a decree of divorce, finding that Vahey had contribute approximately 25% of the funds invested in the accounts and that Luong and her family had invested approximately 75% of the funds. The district court determined that it was appropriate to divide the accounts between the parties, to be managed on behalf of their children, based on the percentage of contributions.
About a year after the evidentiary hearing, Luong obtained a report from a financial consultant who determined that her family had actually contributed 77.11% of the funds in the accounts and Vahey contributed 22.89% of the funds. Luong moved to correct the portion of the divorce decree addressing the accounts pursuant to NRCP 60(a) and (b)(1). Vahey opposed the motion, arguing that the district court correctly allocated the funds based on the evidence presented at trial and that Luong elected not to present an expert report at that time so relief under NRCP 60(a) or (b)(1) was not warranted. He specified that the district court’s decision did not reflect a clerical error or mistake, inadvertence, surprise, or excusable neglect. He also requested that that the children’s passports be turned over to him because he feared that Luong might leave the country with the children if the issue was not resolved in her favor. Luong opposed that request.
The district court found that the court issued a clear and intentional order regarding the accounts following an adequate discovery period and evidentiary hearing and that there was no excuse as to why Luong waited until a year after the evidentiary hearing to have a financial consultant complete a forensic analysis of the accounts. As such, the district court denied Luong’s request and concluded that her request for relief was frivolous and vexatious because she sought a de minimis adjustment to the allocation of the accounts, which the parties did not own but rather managed as fiduciaries for their children. The district court also found that it was appropriate to split the children’s passports between the parties to prevent either parent from unilaterally removing the children from the country.
On appeal, Luong challenged the denial of her request for relief under NRCP 60(a), arguing that the decree of divorce included a clerical error with respect to the 529 accounts. Specifically, Luong alleges that the minutes following the evidentiary hearing included language that was not later included in the actual decree. The Court held that, as a preliminary matter, minute orders addressing the merits of a case are ineffective because they are both impermanent and because the court is free to reconsider the decision and issue a different written judgment. Despite this, the Court held that Luong failed to establish the type of mistake or omission encompassed by NRCP 60(a), as the court’s finding was based on its evaluation of the evidence before it at the time of the evidentiary hearing. As such, the district court did not abuse its discretion by denying Luong’s motion for NRCP 60(a) relief.
Luong also challenged the denial of her request for relief under NRCP 60(b)(1) on two bases. First, Luong asserts that the request was timely because it was filed within six months of the date of service of written notice of entry of the divorce decree. Second, Luong argues that the district court failed to consider the appropriate factors for evaluating NRCP 60(b)(1) motions. The Court held that, as a preliminary matter, NRCP 60(b)(1) authorizes the district court to set aside a judgment or order due to mistake, inadvertence, surprise, or excusable neglect. Here, however, Luong’s motion was based on evidence that she obtained after the evidentiary hearing. Such requests for relief are governed by NRCP 60(b)(2), which allows the district court to set aside a judgment or order based on newly discovered evidence. As such, the Court construed Luong’s request as such.
The Court stated that a motion pursuant to NRCP 60(b)(1)-(3) must be filed within a reasonable time and no more than 6 months after the date of the relevant proceeding or the date of service of written notice of entry of the judgment or order, whichever date is later. Here, the 6 month period is not triggered by the entry of a judgment or order, but rather from the date of service of written notice of entry of the order from which relief is sought. As such, Luong timely filed her request to set aside the divorce decree’s provision concerning the 529 accounts within less than 6 months after written notice of entry of the divorce decree was served. Therefore, the district court abused its discretion by not providing an appropriate basis to deny Luong’s request for such relief.
The Court also held that the district court was not required to consider the factors outlined in Yochum v. Davis, because those factors only apply when evaluating requests for relief under NRCP 60(b)(1), and the Court has already established that Luong’s requested relief is actually pursuant to NRCP 60(b)(2). Nevertheless, the district court found that there was no excuse for Luong to wait until approximately one year after the evidentiary hearing to obtain a forensic analysis of the 529 accounts and that her request to set aside the decree on that basis was frivolous and vexatious. With reasonable due diligence, Luong could have obtained a forensic analysis well before the time to move for a new trial under NRCP 59(b), which precludes relief under NRCP 60(b)(2).
Lastly, the Court held that the district court did not properly analyze the passport issue through the lens of the Uniform Child Abduction Prevention Act (UCAPA). The district court determined that there was no evidence before it that either party was a flight risk, but divided the children’s passports to prevent either party from unilaterally removing the children from the country. In doing so, the district court did not make a determination with respect to the children’s best interest or any findings supporting that outcome. As such, the order was affirmed insofar as it denied Luong’s requests for NRCP 60(a) and (b)(2) relief, but reversed and remanded in regards to the passport issue.