New Cases added to MLAW: Three SCT Published: Guardianship of Jones, Falconi, & Draskovich; Two COA Unpublished: Cleland & Patterson

by | Jul 26, 2024 | Lawyer's Blog, Nevada Family Law Appeals | 0 comments

In re Guardianship of Jones, 139 Nev. ___, ___ P.3d ___ (Adv. Opn. No. 57, Dec. 21, 2023)

Respondents petitioned for guardianship over their mother which triggered contentious litigation. The district court (Marquis) appointed a guardian ad litem (GAL) to aid it in determining the protected person’s best interests. The GAL, an attorney, sought fees and costs at her standard hourly rate. The district court awarded her those fees over the protected person’s objection. The protected person appealed.

Three arguments were made on appeal. First, that the GAL has no right to fees when the district court order appointing her did not specify the rate, as required by the Nevada Statewide Rules for Guardianship (NSRG). Second, that the court improperly appointed an attorney as the GAL under NRS 159.0455 and NSRG Rule 8. Third, that the rate of compensation to which the GAL is entitled should be that of a fiduciary, not an attorney.

The Supreme Court concluded that the protected person waived any argument pertaining to the form of the district court’s order by failing to raise the issue below. Within days of the GAL’s appointment, the protected person was notified that the GAL would seek fees at her requested rate of compensation.

The SC concluded that the district court erred in interpreting NRS 159.0455(3) as requiring the court to appoint an attorney where there is no court-approved volunteer program. But the SC found that this error was harmless because the district court expressly appointed an experienced attorney as the GAL due to the complexity of the matter.

Finally, the SC held that the district court did not abuse its discretion in awarding the GAL the full amount of her requested fees.

 

Falconi v. Eighth Jud. Dist. Ct., 140 Nev. ___, ___ P.3d ___ (Adv. Opn. No. 8, Feb. 15, 2024)

In June 2022, the Eighth Judicial District Court amended its local rules EDCR 5.207 and EDCR 5.212 (partially based on NRS 125.080) which automatically closed a child custody matter and stated that a family court proceeding must be closed upon the request of a party.

The majority of the Supreme Court said that in practice, these new changes give a party the right to prohibit the public’s access to court proceedings without a judicial determination having been made that closure is necessary and appropriate. The majority held that the public has a constitutional right of access to court proceedings.

Furthermore, the majority stated that the new changes eliminated the process by which a judge should evaluate and analyze the factors in closure decision. Thus, by bypassing the exercise of judicial discretion, the closure cannot be narrowly tailored to serve a compelling interest.

The SC concluded that these local rules and NRS 125.080 violated the constitutional right of access to court proceedings, and thus are unconstitutional to the extent they permit closed family court proceedings without judicial discretion.

The dissenting justices argued that it was an error to treat family law cases the same as all other civil proceedings. Furthermore, the dissent argued that neither distinct traditions of openness nor logic supported finding a First Amendment qualified right of public access as to divorce and child custody proceedings. As such, the dissent states that strict scrutiny does not apply because no right of access exists.

 

Draskovich v. Draskovich, No. 84998, 140 Nev. ___, ___ (Adv. Opn. No. 17, Mar. 21, 2024)

There were two issues for the Supreme Court of the State of Nevada to consider: (1) the law firm’s status and (2) alimony. The ex-husband had the business prior to the marriage, therefore, it is separate property that he owns. However, since the business may have become a community resource, the ex-wife must be given an opportunity to show that there is a community portion of the business by clear and convincing evidence. Also, alimony must be reconsidered given the change in circumstances concerning the parties’ community property.

The date of incorporation of the business is not the decisive factor. The court must look to the totality of the circumstances to determine whether a business is an asset acquired during the marriage.

The district court relied solely on the date of incorporation of the law firm, and since the law firm was incorporated during the marriage, the district court ruled that it was entirely community property. However, this analysis was incorrect.

The ex-husband’s law firm was a continuation of his former law firm because he kept the same assets, staff, pay, clients, and office. Therefore, this was not a new property acquisition, which means it is his separate property.

The ex-husband brought the business into the marriage, so it is his separate property, and any increase in its value over time is also presumed to be separate. This means that the ex-wife has the burden of showing by clear and convincing evidence that a portion of any increase to his law firm’s value over the course of the marriage belongs to the community. The community is entitled to that portion of the property “purchased with community funds or credit or acquired by . . . community toil or talent.” Kelly v. Kelly, 86 Nev. 301, 310, 468 P.2d 359, 365 (1970).

Alimony needs to be reconsidered depending on if the business is community or separate property.

The court vacated the portion of the decree denying alimony and remanded for further proceedings consistent with this opinion.

 

Cleland v. Cleland, No. 86558-COA, Order of Affirmance (Unpublished Disposition, Mar. 19, 2024)

DO NOT CITE THIS CASE

The parties were married and shared three minor children. Both parties initially resided in Nevada, but after the marriage, the ex-husband moved to Utah with the two youngest children.

Initially, the district court entered a temporary custody order permitting the ex-husband to maintain primary physical custody of the two youngest children and provided the ex-wife with parenting time during each weekend.

Later, the district court issued an order awarding the ex-wife primary physical custody of all three children.

On appeal, the ex-husband argued that the district court abused its discretion by denying his request to relocate the youngest children to Utah and awarding the ex-wife primary physical custody of the children. In addition, he said he was entitled to a presumption pursuant to NRS 47.250(3) that the messages deleted by the ex-wife were adverse to her interests such that the court should have presumed that she consented to his relocation to Utah in those messages.

When making a custody determination, the sole consideration is the best interest of the child. Here, the district court made detailed findings concerning the relocation factors and whether relocation was in the children’s best interest. The court concluded that the relocation was not in the best interest of the children because the move would not provide adequate housing for the children.

In this case, the ex-husband only argued he was entitled to a rebuttable presumption for the deleted messages, so the district court considered the facts and circumstances surrounding those messages and concluded that he failed to meet his burden that he was entitled to a rebuttable presumption. Because the appellate court is not at liberty to reweigh the evidence on appeal and there was sufficient evidence for the district court’s determinations, the COA concluded that the ex-husband failed to demonstrate that the district court abused its discretion by denying his claim.

Therefore, the Court of Appeals of the State of Nevada affirmed the district court’s decision granting the ex-wife with primary physical custody of all the children.

 

Patterson v. Wainwright, No. 86926-COA, Order Affirming in Part, Reversing in Part and Remanding (Unpublished Disposition, Mar. 19, 2024)

DO NOT CITE THIS CASE

The Court of Appeals of the State of Nevada affirmed the district court’s decision with regard to child support, but reversed and remanded with regard to child care costs.

The father did not provide this court with the transcripts from the hearings, therefore, the COA presumed that the evidence from those hearings favored the district court’s decision. Hence, the father owes the mother monthly child support.

The child care costs decision was reversed and remanded because the district court was required to consider whether the child care costs were reasonable and whether the division of those costs was equitable pursuant to NAC 125.130, but it did not. More specifically, both parties agreed for the child to attend the child care program, but the district court did not collect any evidence as to whether they agreed to equally divide the costs for that program. Because of the lack of evidence, the district court must reevaluate this issue.

Marshal S. Willick
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