Monahan v. Hogan, 138 Nev. ___, ___ (Adv. Opn. No. 7, Feb. 24, 2022)

This was an appeal from a district court order granting a motion to relocate a minor child. NRS 125C.007, which is comprised of the threshold test, the six relocation factors, and the burden of proof, was in dispute due to ambiguities in interpretation—specifically, what exactly constituted the “best interests of the child.”

Anthony Monahan (“Monahan”) and Amanda Hogan (“Hogan”) were living separately when they had a child in 2012. In 2015, they stipulated to joint legal and physical custody, but while Monahan began working outside of Yerington, Hogan relocated with the child to Yerington because her husband had been assigned to Naval Air Station Fallon. In 2019, the district court granted Hogan primary physical custody of the child because it was in the child’s best interest. In June 2020, Hogan moved to relocate with the child to Virginia, where her husband had been reassigned, but Monahan objected. At the subsequent hearing, Monahan argued that it was not in the child’s best interest to relocate, and contended that the custody factors’ relevance at the outset were inapplicable because the hearing concerned relocation instead of custody. Still, in October 2020, the district court granted Hogan’s motion to relocate.  Monahan appealed.

After a deep analysis into the factors that affect the “best interests of the child,” such as the presence of conflict between the parents, the nature of the relationship between each parent and child, and a parent’s ability to provide for the child in the new location, the Court concluded that the district court was correct in granting Hogan’s relocation petition.

The Court also chose to address the applicable burden of proof necessary to satisfy the “best interests of the child” standard despite it not being argued by the parties, concluding that it was preponderance of the evidence. The relocating parent has the burden of proving that all three threshold provisions have been met.

 

In re Guardianship of Jones, 138 Nev. ___, ___ (COA Adv. Opn. No. 6, Feb. 24, 2022)

This case follows up on In re: Guardianship of Jones, No. 81799, Order of Affirmance (COA Unpublished Disposition, Oct. 20, 2021), now published as an Opinion upon the request of the prevailing party, and concerns NRS 159.344, which governs the award of attorney fees in guardianship cases where the guardian requested that the protected person’s estate pay attorney fees.

Prior to Kathleen Jones requiring a guardian, she executed multiple power of attorney forms that granted her daughter, Kimberly Jones, the power of attorney, and executed estate planning documents naming Kimberly as her preferred guardian. Some years later, Kathleen began suffering from dementia and required full-time care. Though Kathleen’s husband, Gerald Yeoman, initially handled much of the caretaking, he soon experienced his own health problems and relocated to Arizona for treatment. Gerald’s daughter and son-in-law, Richard and Candice Powell, requested and tried to move Kathleen to Arizona as well, but Kimberly believed herself to be the more appropriate caretaker and insisted on Kathleen remaining in Las Vegas. Soon after, the two sides of the family (Kathleen’s children and Gerald’s children) disagreed on Kathleen’s property, residence, and finances. Kathleen’s other children, Donna and Robyn, retained legal counsel and was subsequently made Kathleen’s temporary co-guardians while Kimberly filed a competing competition to become Kathleen’s general guardian. Following an investigation concluding that Kimberly had not misused Kathleen’s funds, she was successful in being appointed Kathleen’s general guardian while Donna and Robyn were dismissed.

The issue of attorney fees arose following the dismissal as Donna and Robyn requested $57,742.16 to be executed as a lien against Kathleen’s estate after her death. The district court granted the full amount, and Kimberly appealed. However, the Court of Appeals found that the district court did not abuse its discretion in determining that Kathleen had benefited from Donna and Robyn’s temporary guardianship, nor had it abused its discretion in determining that the fees were payable from Kathleen’s estate. Due to the extensive commitment required during the one-month timeframe of temporary guardianship, the amount was deemed to be proper as well.