Frane v. Frane, No. 85498-COA, Order of Affirmance (Unpublished Disposition, Aug. 22, 2023)

The parties were married and had one minor child who from a very young age resided with the paternal grandparents.

In 2020, when the minor was about 5 years old, Mom filed a complaint for divorce. The district court entered a temporary custody order granting Dad primary physical custody and joint legal custody which actually maintained the status quo and allowed the child to remain with the paternal grandparents.

In May 2022, the grandparents intervened, seeking permanent custody. Before trial in September 2022, Mom sought sole legal and sole physical custody. Dad requested primary physical custody and joint legal custody and nominated the grandparents to act in his place and continue to care for the minor child.

The district court found the grandparents had overcome the parental preference presumption and that joint custody was not in in the child’s best interest granting primary physical custody to the grandparents, with all parties sharing joint legal custody. Both Mom and Dad were required to pay monthly support to the grandparents.

The district court divided the community property between the parties with Dad required to pay Mom an offset of $3,250 to equalize the property. Mom appealed, claiming an abuse of discretion in the orders awarding the Walls primary physical custody of P.F., granting child support as a result of the primary physical custody order, and in its division of community assets and debts.

The Court rejected all three of Mom’s arguments and made it clear that the district court has broad discretionary powers in determining child custody. The Court of Appeals affirmed the district court’s order in full.

 

Pool v. Pool, No. 85771-COA, Order of Reversal and Remand (Unpublished Disposition, Sept. 13, 2023)

After a divorce where the parties agreed to share joint legal and physical custody of their one minor son, Mom experienced a mental health breakdown and self-harmed herself in front of both Dad and the child, and Dad was awarded primary physical custody and sole legal custody with supervised parenting time for Mom. Dad ended up pursuing a career opportunity in Ohio, and requested permission to relocate, which the district court denied. Dad and the minor child moved to Ohio despite not having permission.

After an evidentiary hearing, the district court granted joint legal custody and allowed Dad to retain primary physical custody and allowed them to continue to reside in Ohio. Under the modified custody order, Mom was given supervised parenting time in Ohio as she had testified that she intended to move to Ohio. However, after the court issued its order, she decided that she was not going to relocate. Mom then filed a motion to modify custody, which was denied by the district court. Mom appealed.

Mom argued that an evidentiary hearing was required on her motion and the district court was required to make an adequate explanation when it denied her motion.

The Court of Appeals agreed with Mom, reversing and remanding. The COA found that Mom raised two distinct claims for a modification of child custody which needed to be addressed by the district court in its denial. The allegations Mom raised were not cumulative or impeaching. Therefore, the district court abused its discretion by denying her motion to modify custody.  Remanded for further proceedings.

 

Perry v. Lee, No. 86002-COA, Order of Reversal and Remand (Unpublished Disposition, Oct. 10, 2023)

The parties were married and resided in San Diego, California with their minor child. In 2021, the parties took a six-month vacation to Mom’s home country of South Korea. In June 2022, Dad and the child returned to the United States, while Mom remained in South Korea. Dad and the child then moved to Las Vegas in June 2022 to reside with the child’s paternal grandmother, and Mom joined them in Las Vegas in August 2022.

Mom filed a complaint for divorce in Las Vegas in October 2022 and sought primary physical custody of the child, permission to relocate with the child, and an order that Dad not leave the state with the child. After temporary custody orders and additional briefing, the district court determined Nevada was not the home state of the minor child and dismissed the custody portion of the divorce case in its entirety. Dad appealed.

Dad argued that the district court improperly dismissed the child custody portion of the action as Nevada had subject matter jurisdiction over child custody and the dismissal left him with no ability to obtain child custody orders. Mom asserted that the district court properly dismissed the custody claims and notes that there is a pending divorce and custody action in South Korea.

The Court of Appeals found that there are a number of circumstances under NRS 125A.305 that would constitute Nevada having jurisdiction over the matter, and thus concluded that the district court erred in dismissing the custody portion of the underlying case. NRS 125A.305 requires a highly factual analysis, therefore the COA reversed and remanded the matter so that the district court can redetermine jurisdiction.

 

 

Marshal S. Willick
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