Supreme Court

In Re: Parental Rights as to A.J.B., No. 84130, Order of Affirmance (Unpublished Disposition, December 15, 2022)

This is an appeal from a district court order terminating parental rights.  Natasha argues that her procedural due process rights were violated when the district court entered the order terminating her parental rights without notice and an opportunity to be heard.  She argues that the Department of Family Services did not effectuate proper service of process by not providing an adequate affidavit to support service by publication under NRS 128.070.

The Court held that in the affidavit, DFS averred that it did not know where Natasha last resided and that DFS conducted diligent searches concurrently with the filing of the affidavit, as permitted by NRS 432B.5902(2).  The Court further held that DFS substantially complied with NRS 128.070’s form and content requirements, that the purpose of the statute was met, and that Natasha had adequate notice of the hearing.  Further, Natasha did not dispute she had legal notice of the hearing because her court-appointed counsel had notice of the termination hearing.

Lastly, the Court held that substantial evidence in the form of exhibits and witness testimony supported the district court’s findings of token efforts as a parental fault ground and that termination was in the child’s best interests.


Court of Appeals

Cordell v. Cordell, No. 83706, Order of Affirmance (Unpublished Disposition, December 21, 2022)

This is an appeal from a post-decree order awarding attorney fees and costs.  The parties were awarded joint legal and joint physical custody pursuant to their decree of divorce in 2017.  In 2020, Brent was awarded primary physical custody and attorney’s fees and costs, concluding that Lindsay displayed a pattern of vexatious conduct, wasted judicial resources and increased attorney fees with unreasonable requests, and that she unreasonably delayed and prolonged discovery by failing to timely respond to discovery requests.

On appeal, Lindsay challenged the award of attorney’s fees.  She argued that the district court abused its discretion in finding that she delayed discovery by failing to timely respond to Brent’s discovery requests and that she failed to negotiate the holiday schedule in good faith.  The Court held that, although Lindsay disagreed with the district court’s findings, they were nonetheless within the district court’s discretion based on the argument and evidence before the court.

Lindsay also argued that the district court abused its discretion in awarding attorney fees because the district court made findings about the parties’ incomes without sufficient evidence supporting the same, and asserted that Brent makes significantly more than he claimed.  The Court held that the district court properly made specific findings as to the Brunzell factors and considered the disparity in the parties’ incomes pursuant to Wright.  Although Lindsay asserted that Brent makes much more than he claimed, she pointed to nothing in the record to support that assertion.  As such, the Court affirmed the district court’s ruling.

Arzola v. Estrada, Nos. 83251 and 83941, Order Affirming in Part and Reversing in Part, Reversing and Remanding (Unpublished Disposition, December 22, 2022)

This is an appeal from a district court decree establishing child custody and support of a minor child.  Ida also appeals from a post-decree order awarding attorney fees and costs.  The parties were never married but share one minor child.  After the child’s birth, Alfonso filed a complaint for primary physical custody but did not seek child support.  Ida counterclaimed for primary physical custody and sought child support.

Following a two-day trial, the district court entered an order awarding primary physical custody to Alfonso via a three-week-on-two-week-off schedule, with two additional weeks given to Alfonso to use during the calendar year.  The district court also ordered a status check in advance of the child starting school to reevaluate where he should attend school and how it will affect the custodial timeshare.  The district court also ordered Ida to pay Alfonso $400 per month in child support, but that no adjustment evidence was provided pursuant to NAC 425.150 that would have allowed the court to reduce the amount of required child support.  Lastly, the district court awarded Alfonso attorney fees without citing its legal basis for doing so, but merely noting that he was the prevailing party.

Alfonso’s memorandum for fees and costs cited NRS 18.010(2) and NRS 125C.250 as the legal basis for attorney fees and included an affidavit to satisfy the Brunzell factors, but did not address the income disparity between the parties.  After time had lapsed without a ruling on the fees issue, Alfonso moved the court for a ruling.  His motion did not address the income disparity, but Ida’s opposition did.

During oral argument on Alfonso’s motion, the district court noted that Alfonso earned substantially more than Ida and directed him to submit a new memo and a prepared order with a blank line that the district court could fill in with the appropriate amount.  Alfonso did so but the order did not include the legal or factual basis for the order.  The district court awarded him $40,000 in fees and costs, without specifying what amount was designated as attorney fees and what amount was costs.

On appeal, Ida argued that the district court erred when it (1) granted Alfonso primary physical custody; (2) relocated the child to California where Alfonso lived without considering statutory relocation factors; (3) failed to consider the income disparity between the parties in its grant of child support; and (4) abused its discretion in granting Alfonso attorney fees.

The Court held that the district court did not abuse its discretion when it awarded primary physical custody to Alfonso.  Further, it held that Ida did not raise her relocation argument below, cited no authority to support her argument and has not shown that a relocation analysis would change the outcome of this case.

The Court also held that the district court abused its discretion in granting Alfonso child support without considering the factors in NAC 425.150.  Below, the district court found that no adjustment evidence was provided pursuant to NAC 425.150, yet the court’s own findings indicate otherwise as substantial evidence was presented in relation to the parties’ disparity in incomes.  The district court abused its discretion by failing to consider the presented adjustment evidence.

Lastly, the Court held that the award of attorney fees to Alfonso was an abuse of discretion.  The Court found that Alfonso’s memo for attorney fees and costs was deficient as it cited to legal bases that were inapplicable.  Alfonso did cite and correctly provide a Brunzell analysis, yet filed to cite or analyze Miller, which addresses the income disparity between the parties.  Moreover, the district court did not cite in its post-trial order any legal basis for the award of attorney fees and costs.

Madarang v. Germer, No. 84466, Order of Affirmance (Unpublished Disposition, Dec. 22, 2022

This is an appeal from a district court custody decree.  The parties share one child together, born in 2013, and had no court-ordered custody arrangement prior to the instant petition.  A few years after the child’s birth, Madarang moved to New Jersey for work, but visited Las Vegas regularly and exercised parenting time during his visits.  He moved back to Las Vegas in 2020 and by 2021, the parties had established a routine in which Madarang had physical custody approximately three days per week.  By mid-2021, Germer informed Madarang she would be moving with the child to Oregon for work opportunities.  In response, Madarang filed the below petition to establish custody, requesting joint legal and primary physical custody if Germer relocated outside the state of Nevada within the next six months.  Germer filed a separate petition, seeking sole legal and primary physical custody, and a motion seeking the same for the purpose of relocating to Oregon.

After the motion hearing, the district court entered an order granting Germer’s request to relocate and provided Madarang with Thanksgiving and winter break visitation, and setting an evidentiary hearing.  After the evidentiary hearing, the district court awarded the parties joint legal custody and awarded Germer primary physical custody, including her relocation to Oregon.

On appeal, Madarang argued that the district court abused its discretion in allowing the relocation, both temporarily and in the final decree, noting that the temporary allowance prejudiced the final determination, and that the district court simply incorporated the best interest factors from the custody analysis into the relocation analysis.  He also challenged the district court’s decision to award primary physical custody to Germer, claiming that it did not make sufficient findings to support that decision.

The Court held that Madarang’s appellate arguments are based on dissatisfaction with the district court’s weighing of the evidence, which is not within the Court’s purview to re-weigh.  The Court further held that the district court considered each of the best interest factors in NRS 125C.0035(4) and the factors for relocation in NRS 125C.007(2).

Hosny v. Hosny, No. 82388, Order of Reversal and Remand (Unpublished Disposition, Dec. 22, 2022)

This is an appeal from a district court’s findings of fact, conclusions of law, and decree of divorce.  After an evidentiary hearing, the district court ordered Amr to pay Huriyeh $5,000 per month in lifetime alimony, to reimburse Huriyeh for her expert witness fees in the amount of $6,000, and to pay Huriyeh’s $38,000 promissory note debt to her sister, which she borrowed, in part, to pay her attorney’s fees.  The district court also ordered Amr to pay the entirety of the US Bank credit card, on the basis that Amr made payments in support of the parties’ adult children without Huriyeh’s permission.  Lastly, the district court ordered Huriyeh to file a memorandum of fees and costs to seek recovery of her attorney fees.

On appeal, Amr argues that the district court abused its discretion when it awarded Huriyeh lifetime alimony based on findings not supported by the record, abused its discretion in relying on the demonstrative exhibits in its determination to award alimony and distribution of community debt where the exhibits were purely demonstrative and contained mathematical errors, and abused its discretion in ordering Amr to pay Huriyeh’s expert witness fees.

On appeal, the Court held that the district court abused its discretion in awarding alimony without properly accounting for the entire division of community property and debt.  The district court applied NRS 125.150(9)(a)-(k) and analyzed all the factors when evaluating whether to award alimony, however the factual findings are contradictory, unclear, and are not supported by substantial evidence.  The Court held that it is not enough for the district court to simply process a case through a list of statutory factors and then announce a ruling.  The district court must tie the underlying factual findings to support its alimony award in amount and duration.

The Court also held that the district court abused its discretion in relying on the demonstrative exhibits when awarding alimony and dividing community debts.  In Allred, the supreme court affirmed the use of demonstrative exhibits where the district court indicated that the exhibits were consistent with testimony and the exhibits contained pictures that had already been admitted into evidence.  Here, two demonstrative exhibits were admitted into evidence, despite the fact that the expert did not testify to establish the foundation for the financial information contained in the exhibits, which was clearly erroneous on the part of the district court.

Lastly, the Court held that the district court abused its discretion in awarding Huriyeh expert witness fees to be paid by Amr.  NRS 18.005(5) provides for the recovery of reasonable fees of not more than five expert witnesses in an amount of not more than $1,500 for each witness, unless the court allows a larger fee after determining that the circumstances surrounding the expert’s testimony were of such necessity as to require the larger fee.  Further, the Nevada supreme court has held that while an expert does not need to testify to recover costs less than $1,500, an expert must testify to recover more than $1,500 in expert fees.  Accordingly, the district court abused its discretion in awarding the expert fees over $1,500.

Perez v. Haywood, No. 83625, Order of Reversal and Remand (Unpublished Disposition, Dec. 27, 2022)

This is an appeal from a post-judgment order denying a request to impose constructive child support arrears.  The parties share one minor child together, born in 2006.  In 2011, Bernadette and the child relocated to Texas, and Cornell has had limited contact with the child since that time.  In 2017, with the assistance of DAFS, Bernadette commenced the underlying proceeding against Cornell that sought, among other things, child support arrears.  The district court entered a consent order that set Cornell’s monthly child support obligation at $462 and required him to pay arrears for the period of January 2017 to April 2017.  Bernadette did not sign the consent order and contends that she was never served with the filed copy of the order.  Thereafter, Bernadette became aware that the order only awarded arrears for a period of four months, rather than the maximum of four years as permitted by NRS 125B.030.

In 2019, Bernadette filed a motion to set aside and/or correct prior child support order and reduce child support arrears to judgment.  Cornell did not oppose the motion, but DAFS appeared and recommended denying the motion based on res judicata principles.  The hearing master denied the motion and Bernadette objected.  The district court granted Bernadette’s objection to the report and recommendation and remanded the matter to the hearing master for an evidentiary hearing on whether it should award constructive arrears for the four year period prior to her original child support request.

At the evidentiary hearing, Cornell did not offer any argument or opposition related to Bernadette’s request for constructive arrears, and Bernadette did not submit any additional documents (aside from a schedule of arrears) to support her request for constructive arrears.  DAFS argued that NRS 125B.030 is discretionary, and that it is DAFS’s office policy to only request constructive arrears for one month prior to the application.  In the report and recommendation, the hearing master declined to order additional constructive arrears on the basis that Bernadette had failed to present evidence of Cornell’s income or to provide evidence supporting her requests for medical expenses and insurance premiums.  Bernadette objected to the report and recommendation, but the district court affirmed it.

On appeal, Bernadette argues that NRS 125B.030 affords the hearing master with some discretion, but that it is not unlimited.  Bernadette also challenges DAFS’s involvement in the case and contends they effectively represented Cornell during the proceedings.  The Court held that the district court may only disregard the hearing master’s recommendation when “the findings are based upon material errors in the proceedings or a mistake in law; or are unsupported by any substantial evidence; or are against the clear weight of the evidence.”  Additionally, the Court declined to consider DAFS’s answering brief, as they do not represent any party to this appeal.  Further, Cornell did not file an answering brief or request an extension.

Regardless, the Court held that the hearing master’s report and the district court’s order were unsupported by substantial evidence.  As such, the matter was remanded for a new hearing to determine whether four years of retroactive child support and payment of identified medical expenses is warranted.

Dalton v. Dalton, No. 81599, Order of Reversal and Remand (Unpublished Disposition, Jan. 23, 2023)

This is an appeal from a district court order after a final judgment in a divorce proceeding.  Jonathan was a member of the United States Navy at the time the parties married in 2005.  At the time of their divorce, the parties reached a marital settlement agreement which was incorporated and merged into their decree of divorce.  The decree included a provision that Rebecca would receive 50% of Jonathan’s retirement benefits accrued during the marriage.  A few years later, the parties agreed to an order incident to divorce which required Jonathan to provide Rebecca with half of his retirement benefits, specifying that this included any amount of retirement benefits Jonathan agreed to waive in order to qualify for disability benefits.  Following Jonathan’s retirement, he applied for and received disability benefits, which required him to waive an equivalent amount of his retirement benefits and resulting in significantly decreased benefits to Rebecca.  Rebecca moved the district court to hold Jonathan in contempt and to enforce his obligation to pay her the same portion of his military retirement benefits she was previously receiving before he elected disability.  The district court denied the motion on the basis that federal preemption prevented the state court from doing so.

On appeal, the Court held that federal law does not preempt enforcement of the OID pursuant to the holding in Martin. In Martin, the Nevada Supreme Court clarified that federal law does not preempt a veteran from agreeing to an indemnification provision for waived military retirement pay.  Here, while the district court was precluded from treating Jonathan’s disability benefits as community property to be divided, federal law does not bar the parties from entering into such an agreement.

Marshal S. Willick
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