ALHEIYAL VS. SWENSEN (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the denial of a motion to set aside a divorce decree for abuse of discretion, citing Rodriguez v. Fiesta Palms, LLC, 134 Nev. 654, 656, 28 P.3d 255, 257 (2018), and Cook v. Cook, 112 Nev. 179, 181-82, 912 P.2d 264, 265 (1996). "An abuse of discretion occurs if the district court's decision is arbitrary or capricious or if it exceeds the bounds of law or reason." Skender v. Brunsonbuilt Constr. & Dev. Co., 122 Nev. 1430, 1435, 148 P.3d 710, 714 (2006). The court construed Alaa's argument that the district court should have applied UAE custody law as a challenge to the district court's subject matter jurisdiction. Subject matter jurisdiction is reviewed de novo, but the district court's factual findings are given deference and upheld if not clearly erroneous and if supported by substantial evidence. Ogawa v. Ogawa, 125 Nev. 660, 667-68, 221 P.3d 699, 704 (2009). The court applied the Uniform Child Custody Jurisdiction and Enforcement Act, codified as NRS Chapter 125A, which exclusively governs subject matter jurisdiction over child custody issues. NRS 125A.305(2); Friedman v. Eighth Jud. Dist. Ct., 127 Nev. 842, 847, 264 P.3d 1161, 1165 (2011). Under NRS 125A.305(1)(a), a Nevada court has jurisdiction over a child custody determination if Nevada was the child's home state when the action commenced. A child's home state is the "state in which a child lived with a parent...for at least 6 consecutive months...immediately before the commencement of a child custody proceeding." NRS 125A.085. Applying that framework, the court found the district court's home-state determination was not clearly erroneous: the child had lived in Nevada with Susan since July 2019, more than six months before Susan initiated proceedings in May 2020. See NRS 125A.305(1)(a); NRS 125A.085. The court also noted that, by Alaa's own admission, there were no simultaneous custody proceedings pending when the district court assumed jurisdiction. See NRS 125A.355(1). The record showed Alaa had not initiated divorce proceedings in the UAE when Susan filed in Nevada, and the UAE court later expressly declined to address custody. The court therefore held the district court properly exercised jurisdiction under NRS 125A.305(1)(a) and did not abuse its discretion in declining to set aside the decree. See Cook, 112 Nev. at 181-82, 912 P.2d at 265. The court rejected the argument that the decree should be set aside because the district court made a custody determination over an allegedly abducted child, observing that the court had jurisdiction, that Alaa was properly served but declined to participate, and that the district court implicitly rejected the abduction claim based on the parties' extensive amicable communications in the record. See Ogawa, 125 Nev. at 668, 221 P.3d at 704. As to NRCP 60(b)(1) (excusable neglect), the court declined to address the argument because Alaa failed to raise it before the district court. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). The court added that, even if considered, relief would be untimely under NRCP 60(c)(1), which requires a Rule 60(b)(1) motion to be made no more than six months after the proceeding or service of written notice of entry. Alaa's attempts to argue relief under NRCP 60(b)(6) or NRCP 60(d)(3) in his reply brief were deemed waived because they were not raised in his opening brief. See Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011). The court further noted that even if considered, Alaa failed to explain how relief under NRCP 60(b)(6) or (d)(3) was brought within a reasonable time given the two-and-a-half-year delay. See NRCP 60(c)(1). Because the court concluded the district court properly exercised jurisdiction, it did not address whether Alaa timely presented the jurisdictional issue within the reasonable time period required by NRCP 60(c)(1). The court also disposed of two motions: it denied Alaa's motion to unseal the case (which was not sealed) and for oral argument, and denied his motion to sanction Susan and her attorney, holding that the sanctions request was improperly made in the appellate court rather than the district court.

In plain language

This case involves a former married couple and their child. Alaa, a Syrian citizen, and Susan Swensen, a U.S. citizen, married in 2013 in the United Arab Emirates (UAE) and had a child there in 2014. In 2017 Susan and the child moved to the United States, settling in Nevada in July 2019. Alaa stayed in the UAE. According to the opinion, the parties kept in touch amicably through Facebook, email, and video calls. In May 2020, Susan started divorce and custody proceedings in Nevada, asking for joint legal custody, primary physical custody, and a change to the child's last name. Alaa was served with the papers but chose not to participate. He instead told Susan that he was not subject to U.S. law and that UAE law should apply. Because he did not respond, Susan obtained a clerk's default, and in March 2021 the court entered a default divorce decree granting joint legal custody, giving Susan primary physical custody, and approving the name change. No appeal was filed from that decree. More than two and a half years later, in October 2023, Alaa filed a motion asking the court to undo the divorce decree, return the child to the UAE for a custody decision, and restore the child's birth name. He said he had tried to begin divorce proceedings in the UAE in April 2020 but could not because he lacked the child's birth certificate and related documents. He said a UAE court issued its own default divorce decree in August 2020 but declined to decide custody, and that this UAE decree was never shown to the Nevada court before it entered its decree. He argued Susan had unlawfully removed the child from the UAE. Susan opposed the motion and asked for an abduction prevention order. She argued the motion was too late under the rule governing motions to set aside judgments, that Nevada was the child's home state, that their communications contradicted the abduction claim, and that Alaa had not shown reversing the name change was in the child's best interest. The district court denied Alaa's motion. It found no factual or legal basis to set aside the decree, noting the parties had communicated extensively after Susan left the UAE and that the child had lived in Nevada for more than six months before Susan filed for divorce. The court found Nevada was the child's "home state" and the United States the child's "home country," giving it authority (jurisdiction) over the case. It also noted Alaa could have participated in the Nevada proceedings but declined to, and had not requested parenting time. On appeal, the Court of Appeals affirmed. It concluded the district court properly had authority over the custody dispute because Nevada was the child's home state and no competing custody proceeding existed in the UAE when Susan filed in Nevada. The court also rejected the abduction argument, pointing to the parties' friendly communications in the record. Finally, the court declined to consider several of Alaa's other arguments because he had either not raised them properly in the lower court or had raised them too late.