New Cases Added to MLAW: Three COA Unpublished: Estein, Rivas, and Smith

by | Jul 24, 2023 | Nevada Family Law Appeals | 0 comments

Court of Appeals:

Estein v. Ward, No. 84817-COA, Order of Affirmance, (Unpublished Disposition, April 27, 2023)

Cecil Estein, Jr. and Mia Ward were never married and have one minor child together, D.W., who was born in 2013. Mia was the primary caretaker for D.W. during the first nine years of his life during most of which Cecil was in the United States military.  Cecil left the military in 2018 and eventually the parties created a partial parenting agreement. The parties agreed to joint legal custody and established holiday and vacation plans. The parties could not agree on physical custody; Cecil filed a custody action seeking 50/50 joint physical custody.

Following a bench trial and explicitly considering the best interest of the child factors under NRS 125C.0035(4), the district court awarded physical custody to Mia, and provided Cecil with parenting time on the weekends. Cecil appealed, arguing that the district court should have applied the joint physical custody preference.

The Court of Appeals affirmed, holding that it is not at liberty to reweigh the evidence or the district court’s credibility determinations on appeal under Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). The district court’s variance from the presumption was supported by substantial evidence and all relevant factors were evaluated; there was no abuse of discretion.

 

Rivas v. Arreguin, No. 84723-COA, Order of Affirmance, (Unpublished Disposition, April 27, 2023)

This appears to be the fourth appellate decision between these parties.  The district court awarded Mayra Arreguin primary physical custody of the parties’ two minor children subject to Javier’s limited parenting time. The district court later modified that arrangement by making that limited parenting time subject to the children’s discretion. Javier moved to modify the parties’ custodial arrangement to joint physical custody. The district court denied Javier’s motion.

That decision was reversed and remanded by the Court of Appeals in Rivas v. Arreguin, No. 82508-COA, 2022 WL 214016, at *1-2 (Nev. Ct. App. Jan. 24, 2022) (Order of Reversal and Remand) based on the district court’s failure to specifically address whether there had been a substantial change in circumstances affecting the welfare of the children and failure to explicitly make findings as to the NRS 125C.0035(4) best interest factors.

On remand, the district court conducted a hearing where it questioned the children and took testimony from a Court-Appointed Special Advocate (CASA), and then denied Javier’s motion. Javier appealed.

The Court of Appeals affirmed, rejecting Javier’s argument that the district court should not have applied the best-interest standard because the standard violates his substantive due process right to make decisions concerning the care, custody, and control of the children under Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

In the prior case, the COA expressly directed the district court to apply the best-interest standard, and Javier did not challenge that decision by way of a petition for rehearing or further review, so it became the law of the case which the district court was obligated to follow.

Troxel is not implicated since this is a dispute between parents, not involving a third party, and the parents’ constitutional rights essentially neutralize one another, leaving a decision to be made in accordance with the children’s best interest.  There was no abuse of discretion.

 

Smith v. State of Nevada Division of Welfare and Supportive Services, No. 83309-COA, Order Vacating Judgment and Remanding (Unpublished Disposition, October 31, 2022)

This matter involves the enforcement of a California child support order. in 2017, Nevada Division of Welfare and Supportive Services filed a “Notice and Finding of Financial Responsibility to Enforce, Adjust and/or Register an Existing Order, Determine Controlling Order, Establish an Obligation or Determine Paternity” under NRS 425.3822. The petition included documents which demonstrated that Smith had not made payments since entry of the California order and that he therefore owed approximately $12,376 in child support arrears.

Smith did not respond or object to that initial 2017 notice, but in 2021, filed a Motion to Void Enforcement of Child Support Order, arguing that he was not served notice in 2017 which violated his due process rights under the Fifth and Fourteenth Amendments. The respondent argued that Smith had been served with notice that his child support arrears were being enforced by Nevada in 2015. The district court denied Smith’s motion by concluding that respondent notified Smith that his child support arrears had been referred to the Bureau of the Fiscal Service. Neither the district court nor respondent addressed Smith’s contentions that he was not served with the 2017 notice. Smith appealed.

The Court of Appeals found that the district court treated the 2017 notice as properly served and entered an order confirming the amount of child support and arrears Smith owed without providing him with the due process protections required under NRS 130.605(2)(b) and NRS 130.606(1). The COA found this failure to be egregious, and concluded that the court abused its discretion by failing to address Smith’s arguments that he was not served with the 2017 notice and finding of financial responsibility.

The Court of Appeals vacated the order and remanded, directing the district court to strike the Notice and Finding of Financial Responsibility from 2017 as it was never served as required, and stating that future attempts to judicially enforce the California support order in Nevada must comply with the registration and service requirements of NRS Chapter 130.

Marshal S. Willick
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