ABID VS. ABID (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the custody determination for an abuse of discretion, noting that "the district court must have reached its conclusions for the appropriate reasons." Ellis v. Carweci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007). Factual findings are affirmed if supported by substantial evidence, but "deference is not owed to legal error, or to findings so conclusory they may mask legal error." Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). The sole consideration in a custody determination is the best interest of the child. NRS 125C.0035(1); Davis, 131 Nev. at 451, 352 P.3d at 1143. The governing framework: modification of primary physical custody requires a substantial change in circumstances affecting the welfare of the child and that modification be in the child's best interest. Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 983 (2022); Ellis, 123 Nev. at 150, 161 P.3d at 242. An evidentiary hearing on a motion to modify is mandatory where the movant demonstrates "adequate cause." Rooney v. Rooney, 109 Nev. 540, 542, 853 P.2d 123, 124 (1998). "Adequate cause arises where the moving party presents a prima facie case for modification," which requires showing that "(1) the facts alleged in the affidavits are relevant to the grounds for modification; and (2) the evidence is not merely cumulative or impeaching." Id. at 543, 853 P.2d at 125. Applying Rooney, the court held that it was not clear the district court properly considered or applied that standard. Lyudmyla's allegations — that Sean was not properly caring for the child, was not exercising all of his custodial time, and was interfering with her parenting time — were relevant to the grounds for modification and, if found true at an evidentiary hearing, could demonstrate that modification was warranted. See Romano, 501 P.3d at 983; Rooney, 109 Nev. at 543, 853 P.2d at 125; see also NRS 125C.0035 (best-interest factors). Nothing in the record indicated the evidence was merely cumulative or impeaching. Separately, the district court's order made merits findings — that Sean refuted Lyudmyla's arguments and findings as to the exhibits — without an evidentiary hearing. The court cited Nev. Ass'n Servs., Inc. v. Eighth Judicial Dist. Court, 130 Nev. 949, 957, 338 P.3d 1250, 1255 (2014), for the proposition that arguments of counsel are not evidence and do not establish the facts of the case. Because the district court failed to conduct an evidentiary hearing and admit evidence upon which to make such findings, reversal and remand were compelled. See Davis, 131 Nev. at 450, 352 P.3d at 1142. As to the subsequent order denying reconsideration and the additional motions to modify, the court likewise reversed: the district court appeared to consider only the veracity of the November 2020 order rather than Lyudmyla's arguments that post-November 2019 events entitled her to modification or, at least, additional findings from which she could appeal. See Davis, 131 Nev. at 450, 352 P.3d at 1142. In a footnote, the court declined to address Lyudmyla's challenges to the determinations leading to the original custody modification, invoking law of the case and waiver principles: Hsu v. Cty. of Clark, 123 Nev. 625, 629, 173 P.3d 724, 728 (2007) ("the law or ruling of a first appeal must be followed in all subsequent proceedings"); Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (issues not raised on appeal are deemed waived); Recontrust Co. v. Zhang, 130 Nev. 1, 9, 317 P.3d 814, 819 (2014) (issues that could have been raised in a first appeal generally cannot be raised in a second).

In plain language

Lyudmyla Abid and Sean Abid divorced in 2010 and originally agreed to share custody of their child. In 2016, after a hearing, the district court gave Sean primary physical custody, and the Nevada Supreme Court upheld that decision on appeal in 2017. In September 2019, Lyudmyla went back to court asking to change custody again. She claimed that since getting primary custody, Sean had been undermining and trying to alienate her relationship with the child, and had not properly cared for the child. The district court denied her motion at a November 2019 hearing, though it ordered the child into therapy and a child interview at the Family Medication Center (FMC). The court did not put its written order on file until November 2020. In that order, the court said that even if Lyudmyla's allegations were true, they did not amount to a "prima facie case" — a preliminary showing strong enough to justify a full evidentiary hearing — and it found the child was doing well in Sean's care and that CPS records she cited were unsubstantiated. Meanwhile, in October 2020, Lyudmyla filed additional motions asking the court to make findings from the FMC child interview and to modify custody based on the child's best interest, including the child's stated desire to spend equal time with both parents. After the written order was entered, she also asked the court to reconsider. The district court denied all of these requests, concluding among other things that the 12-year-old child was too young for his custody preference to be given weight and that Lyudmyla appeared to be relitigating issues already decided. The Nevada Court of Appeals reversed. It explained that under Nevada law, a parent asking to change custody is entitled to an evidentiary hearing — a proceeding where witnesses testify and evidence is formally admitted — if the parent makes a preliminary showing of facts that, if true, could justify a custody change. The court concluded that Lyudmyla's allegations (that Sean was not properly caring for the child, was not using all of his custodial time, and was interfering with her parenting time) were relevant to modification and, if proven at a hearing, could warrant a change. The appeals court also pointed out a problem with how the district court reached its findings: it appeared to decide the merits based on the parties' arguments and filings, but arguments of lawyers are not evidence — factual findings must rest on evidence actually presented. Because no evidentiary hearing was held, the findings lacked an evidentiary basis. The appeals court also reversed the later order, because the district court appeared to review only whether its earlier order was correct, without addressing Lyudmyla's separate arguments that events occurring after the November 2019 hearing justified modification or at least additional findings. The case now returns to the district court for further proceedings. The appeals court declined to revisit the original custody modification itself, explaining that those issues either were or could have been raised in the earlier appeal to the Nevada Supreme Court.