Gray, Jr. v. Davania-Williamson, No. 82705, Order of Affirmance (Unpublished Disposition, Dec. 29, 2021)

This is an appeal from a district court order denying NRCP 60(b) relief in a child custody matter.  In September 2019 the parties agreed to a stipulated custody order granting them joint legal custody and granting Jacqueline primary physical custody of the child.  A month later, Charles moved to set aside the stipulated custody order, alleging that his counsel signed the stipulation without his consent, and that he never agreed to the order. In November 2020, after several hearings, the district court eventually ordered that the parties should follow the custody schedule in the September 2019 order, but ordered the parties to modify the Christmas holiday schedule.

Charles then filed a motion to set aside or correct the November 2020 order, arguing that Jacqueline’s counsel failed to make one of his two proposed edits to the draft order and then filed it without his signature. Jacqueline asserted that she submitted the proposed order with a copy of Charles’s e-mailed objections, and the district court adopted her proposed order as is. The district court denied Charles’s motion to set aside the November 2020 order.

On appeal, the Court noted that Charles failed to offer any argument challenging the district court’s denial of that motion.  As such, the Court affirmed the district court’s order.


Burpee v. Burpee, No. 80850, Order of Reversal and Remand (Unpublished Disposition, Dec. 29, 2021)

This is an appeal from a district court order denying an NRCP 60(b) motion to set aside an amended QDRO in a divorce action. The parties divorced in 2014. Prior to the divorce, the district court ordered Darrell to pay Pamela temporary spousal support and attorney fees. The divorce decree divided Darrell’s pension (which was not yet in pay status) and awarded Pamela spousal support, which was reviewable when she could collect from Darrell’s pension. Darrell quickly fell behind on his financial obligations and racked up thousands of dollars in arrears; Pamela sought a finding of contempt and an Indemnity QDRO awarding her 100% of Darrell’s pension to pay his arrears. Darrell did not file an opposition and the district court signed the amended QDRO, but didn’t enter a separate written order granting the motion to amend the QDRO, nor did it explain why is issued the amended QDRO or make any contempt findings authorizing the amended QDRO. The notice of entry of the amended QDRO wasn’t filed until two years later. Another year and a half after the notice of entry was filed, Darrell filed a motion to set aside the amended QDRO under NRCP 60(b), arguing that the district court failed to prepare an order outlining its findings of fact and conclusions of law. The district court summarily denied Darrell’s motion and he appealed.

The Court of Appeals ruled that Willard v. Berry-Hinckley Industries requires district courts to issue explicit and detailed findings, preferably in writing, with respect to the four Yochum factors to facilitate appellate review of NRCP 60(b)(1) determination. Even prior to Willard, district courts were required to at least consider the four Yochum factors. Here, the district court failed to consider the factors.

On appeal, Pamela argued that the amended QDRO served as an enforcement mechanism and as the order from the 2015 motion. However, the Court held that, in order for the amended QDRO to serve as an enforcement mechanism, it needs to enforce some order and no separate order was filed in this case. Additionally, the QDRO couldn’t serve as the order itself because it did not contain the court’s ruling authorizing the amended QDRO and the legal basis for it. Because the Court couldn’t tell what the district court’s intent was without an independent order or the necessary analysis in the amended QDRO, and because the Yochum factors were never addressed, the case was reversed and remanded.


Tobias v. Tobias, No. 82553, Order of Affirmance (Unpublished Disposition, Dec. 29, 2021)

This is an appeal from a district court order denying a petition for visitation in a family matter. Adalberto is the biological grandfather of Michelle and Joseph’s minor child. Adalberto initiated the underlying action seeking a visitation order, alleging that he was the minor child’s primary caregiver for a significant period of time while Michelle and the child lived with him. He alleged that he financially provided for the child, and that he and the child had developed a strong relationship. After Michelle and the child moved out of his home, she began denying him time with the child. After an evidentiary hearing, Adalberto’s petition was denied.

The district court concluded that Adalberto failed to meet his burden pursuant to NRS 125C.050, finding that there was high conflict and a lack of cooperation between the parties. On appeal, the Court found that the district court properly considered NRS 125C.050 in considering Adalberto’s petition and made findings relevant to NRS 125C.050(6). As such, the Court could not conclude that the district court abused its discretion in denying Adalberto’s petition for visitation.

Marshal S. Willick