ANASTASSATOS VS. ANASTASSATOS (CHILD SUPPORT)

Statutes cited

Key holdings

Practitioner summary

The court affirmed in part and reversed in part a child support modification order. On the jurisdictional/due process issue, the court held that although Nevada is a notice-pleading jurisdiction, a party must be given reasonable advance notice of an issue and an opportunity to respond. Schwartz v. Schwartz, 95 Nev. 202, 206, 591 P.2d 1137, 1140 (1979). The only matters properly before the district court were the support amount, the health-insurance credit, and the visitation schedule; by first raising child support abatement, sharing of visitation transportation costs, and a change to the support due date in his proposed order, George denied Christie an opportunity to respond, so those three issues were not properly before the court, which exceeded its jurisdiction in ruling on them. Although it did not need to decide whether abatement was an abuse of discretion, the court reiterated that the Legislature has cabined district court discretion in child support: a court has limited discretion to deviate from the NRS 125B.070 guidelines, and any deviation must be based on the statutory factors in NRS 125B.080(9) and specified in written findings of fact. Lewis v. Hicks, 108 Nev. 1107, 1112, 843 P.2d 828, 831 (1992); Westgate v. Westgate, 110 Nev. 1377, 1379, 887 P.2d 737, 738 (1994). The basis for deviation must lie in the unfairness to the secondary custodian who, after making substantial contribution, would be required to pay the full formula amount. Barbagallo v. Barbagallo, 105 Nev. 546, 552, 779 P.2d 532, 536 (1989). Because the district court made no findings supporting the summer-abatement deviation - and because a primary custodian's fixed expenses do not necessarily decrease during the other parent's visitation - the abatement was reversible error. Finally, the court held the district court did not abuse its discretion in setting the commencement date of the increase (August 1, 1995), because NRS 125B.140 makes modification of not-yet-accrued payments discretionary and the court reasonably attributed the delay to the parties' out-of-court settlement efforts.

In plain language

Christie and George Anastassatos divorced in 1987 and share joint legal custody of their three children, with Christie having primary physical custody. George paid $900 a month in child support. In 1995, Christie asked the court to review and increase George's child support. The parties tried to settle through counsel and George acknowledged he should be paying the statutory cap ($1,500 a month total), but he also asked for a credit for half the health insurance premium and a set visitation schedule. After the matter was resubmitted on the pleadings, both sides submitted proposed orders. The district court adopted George's proposed order, which not only increased support and gave the insurance credit, but also abated (suspended) George's support during his one-month summer visitation, changed the payment due date, set a visitation schedule, and split transportation costs. Christie appealed, arguing the court granted relief on issues she never had a chance to respond to. The Nevada Supreme Court affirmed in part and reversed in part. It held that the only issues properly before the district court were the amount of support and the health-insurance credit (and the visitation schedule). Nevada is a notice-pleading state, but a party must still receive reasonable advance notice of an issue and a chance to respond. By raising support abatement, transportation-cost sharing, and the change to the payment due date for the first time in his proposed order, George effectively denied Christie an opportunity to respond, so the court exceeded its jurisdiction on those three matters. The court also reiterated - even though it did not need to decide the point - that a district court has only limited discretion to deviate from Nevada's child support guidelines, and any deviation must be supported by specific written findings of fact justifying it. The court found the summer-visitation abatement improper because the district court made no such findings, and because a primary custodian's fixed child-rearing expenses do not necessarily decrease when the children visit the other parent. Finally, the court held the district court did not abuse its discretion in setting the effective date of the increase (August 1, 1995 rather than the earlier motion date), since NRS 125B.140 leaves that to the court's discretion and the delay was attributable to the parties' out-of-court settlement efforts.