Colt v. Plummer, No. 82662, COA Order of Affirmance (Unpublished Disposition, Jan. 24, 2022)
This is an appeal from a district court order in a child custody matter. Colt and Kanter are the paternal grandmother and aunt of Plummer’s minor child. After the child’s father passed away, Colt initiated the underlying action for either custody or, in the alternative, visitation. After several days of trial, the district court denied appellant’s petition for custody or visitation and awarded full custody to Plummer.
On appeal, appellants asserted that it was never demonstrated below that Plummer is fit to have custody and that the district court failed to consider evidence that Plummer was unfit. They alleged that the district court specifically failed to consider that Plummer abused and neglected the child and that she has addiction and mental health issues.
Before awarding custody of a child to a person other than a parent, without the parent’s consent, the district court must find that awarding custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interest of the child. NRS 125C.004(1). The non-parent seeking custody can only overcome this preference by a showing that the parent is unfit or other extraordinary circumstances. Locklin, 112 Nev. at 1494, 929 P.2d at 933. The Court held that, here, the district court considered the evidence presented, including appellant’s allegations of unfitness, and made detailed findings regarding the issue.
Regarding grandparent visitation rights, if the parent has denied visitation with the child, there is a rebuttable presumption that granting visitation to the petitioners is not in the child’s best interest. NRS 125C.050(4). The district court must consider the factors in NRS 125C.050(6) when determining whether the petitioners have rebutted that presumption. Here, the Court held that the district court considered the request for visitation on the merits, specifically considering the factors enumerated in NRS 125C.050(6). As such, the Court held that the district court did not abuse its discretion in denying appellants’ petition for visitation.
Rivas v. Arreguin, No. 82508, COA Order of Reversal and Remand (Unpublished Disposition, Jan. 24, 2022)
This is an appeal from a district court post-divorce decree order denying Rivas’ motion to modify custody. In the underlying proceedings, the district court awarded Arreguin primary physical custody of the parties’ two minor children subject to Rivas’ limited parenting time rights. The district court later modified by making Rivas’ limited parenting time rights subject to the children’s discretion. Recently, Rivas moved to modify the parties’ custodial arrangement to joint physical custody, arguing that the children’s attendance in school and academic performance had declined during the COVID-19 pandemic. The district court denied the motion, reasoning that the existing custodial arrangement was in the children’s best interest. Rivas appealed, arguing that the district court violated his constitutional rights when it denied his motion because it failed to follow the supreme court’s decision in Ellis. In Ellis, the court reasoned, in part, that a decline in a child’s academic performance constituted substantial evidence supporting the district court’s determination that there had been a substantial change in circumstances affecting the welfare of the child.
On appeal, the Court found that the district court’s order below was unclear and lacked necessary findings. The district court’s order did not specifically address whether there had been a substantial change in circumstances affecting the welfare of the children. The Court ordered the district court to clarify its findings in accordance with Ellis and Romano on remand. Further, the Court ordered that, if the district court finds there has been a change in circumstances warranting modification, the district court will need to address the second part of the two-part test, which is whether a custody modification is in the children’s best interest. As such, the case was remanded.
Romano v. Romano, 138 Nev. ___, ___ P.3d ___ (Adv. Opn. No. 1, Jan. 13, 2022)
These are consolidated appeals from district court orders denying a motion to modify child custody and child support, and an award of attorney fees. The parties divorced in 2019. The Decree incorporated a previous agreement relating to the custody, control, and care of their 7 minor children. The agreement created a complex timeshare regarding the physical custody of each child, by giving Aaron custody of the oldest 3 children approximately 90 percent of the time, and giving Tracy custody of the younger 4 children approximately 95 percent of the time. Although the timeshare did not meet the at-least-40-percent-physical-custody standard for joint physical custody, the parties agreed to label their agreement joint physical custody of the children. The parties later stipulated to a Marital Settlement Agreement (MSA), which provided terms for alimony, income, and child support. Pursuant to that agreement, Aaron owed Tracy $1,138 per month per child, the presumptive maximum at the time, for the 4 younger children, and $569 per month for one of the older children. The MSA also provided that the prevailing party in litigation was entitled to attorney fees and costs.
Less than a year later, Aaron filed a Motion to Confirm De Facto Physical Custody Arrangement of Children, requesting that the district court confirm that he had primary physical custody of the 3 older children and to modify the child support obligation due to the actual custody timeshare and due to an increase in Tracy’s monthly income. Tracy opposed, arguing that their global settlement did not warrant modification in that there were no changed circumstances since they entered into that agreement. Additionally, she argued that her increase in income came from alimony and interest on a promissory note paid by Aaron, both part of the parties’ global settlement agreement, such that there was no change in circumstances. The district court denied Aaron’s motion, concluding that there was no change in circumstances that warranted modifying custody, and that Tracy’s income had not changed. The district court also awarded Tracy attorney’s fees and costs pursuant to the MSA and NRS 18.010(2)(b) as the prevailing party. Aaron appealed.
On appeal, the Court held that the district court did not abuse its discretion when it denied Aaron’s motion to modify custody. The Court took this opportunity to clarify the Rivero tests based on the nature of the custody arrangement before any modification. The Court held that, regardless of whether a movant requests to modify joint custody or primary physical custody, the test to evaluate such a motion is one and the same — the movant must show that (1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child’s best interest is served by the modification. Thus, the Court overruled Rivero to the extent it indicates that a district court must first determine what type of physical custody arrangement exists before considering whether to modify that arrangement.
On appeal, the Court also held that the district court did not abuse its discretion when it denied Aaron’s motion to modify his child support obligation. Although Rivero and Burton provide that a district court typically may modify a support order when there is a legal change in circumstances, here NAC 425.170(3) carves out a minor exception to that general rule. As such, the newly enacted child support regulation, alone, is not a change in circumstances warranting modification of a child support obligation.
Lastly, the Court held that the district court did not abuse its discretion by awarding Tracy attorney’s fees and costs because the district court properly denied Aaron’s motion, making Tracy the prevailing party.