ANDERSON VS. BLECHA (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's custody modification for abuse of discretion, citing Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018). An abuse of discretion occurs when the decision is not supported by substantial evidence or is clearly erroneous. Factual findings are given deference and upheld if supported by substantial evidence, meaning evidence a reasonable person may accept as adequate to sustain a judgment, per Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). The court presumes the district court properly exercised its discretion in determining the child's best interest under Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004), and does not reweigh evidence or credibility determinations on appeal, citing Ellis v. Carucci, 123 Nev. 145, 152, 161 P.3d 239, 244 (2007), and Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000). The governing framework for modification of physical custody, drawn from Romano v. Romano, 138 Nev. 1, 2, 501 P.3d 980, 981 (2022), requires (1) a substantial change in circumstances affecting the welfare of the child and (2) that the modification serve the best interest of the child. The child's best interest is the district court's sole consideration under NRS 125C.0035(1), and the court must consider the best interest factors set forth in NRS 125C.0035(4). On the "absolute inability to co-parent" finding, the court held substantial evidence supported it: Anderson admitted facilitating calls between Byrd and D.A. was not a "priority," text messages showed him repeatedly ignoring Byrd's communication requests, and he acknowledged failing to inform Byrd of D.A.'s thumb injury and destroying the communication phone with a sledgehammer. The court declined to reweigh Anderson's self-serving testimony or the conflicting witness testimony under Ellis. The court further held that any error in this finding was harmless because it served as the basis for the substantial-change-in-circumstances conclusion, which Anderson conceded existed, applying the harmless-error standard from Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010) ("but for the alleged error, a different result might reasonably have been reached"). On the best-interest analysis under NRS 125C.0035(4), the district court found six factors favored Byrd, one favored Anderson, and five were inapplicable. The court noted that the parental-abduction factor, NRS 125C.0035(4)(l), weighed in Anderson's favor due to Byrd withholding D.A. Because Anderson did not challenge the findings on the factors favoring Byrd, and because the district court adequately considered each statutory factor, there was no abuse of discretion. To the extent Anderson argued the court should have given greater weight to Byrd's withholding of the child, the court declined to reweigh (Ellis) and found no demonstration that greater weight would have changed the result (Wyeth). On the evidentiary challenge, the court reviewed the admission of Harter's testimony for abuse of discretion, citing Abid v. Abid, 133 Nev. 770, 772, 406 P.3d 476, 478 (2017). Under NRS 50.265, a lay witness may testify to an opinion "[r]ationally based on the perception of the witness" and "[h]elpful to a clear understanding of the testimony of the witness or the determination of a fact in issue." The court held that Harter's testimony regarding Anderson's "level of alcoholism" did not call for specialized knowledge and was not a medical diagnosis but rather an opinion rationally based on her observations during their six-month dating relationship. The court additionally found no violation of substantial rights because the district court's order did not reference Anderson's alcohol use in its best-interest analysis (Wyeth). On recusal, the court reviewed for clear abuse of discretion under Canarelli v. Eighth Judicial Dist. Court, 138 Nev. 104, 106-07, 506 P.3d 334, 337 (2022). It applied the general duty to sit "unless a judicial canon, statute, or rule requires the judge's disqualification," from Millen v. Eighth Judicial Dist. Court, 122 Nev. 1245, 1253, 148 P.3d 694, 700 (2006), and the rule that disqualification for personal bias requires an extreme showing of bias that would permit manipulation of the court and significantly impede the judicial process and administration of justice (Millen, 122 Nev. at 1254-55, 148 P.3d at 701). A disqualifying bias "must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from participation in the case," per Whitehead v. Nev. Comm'n on Judicial Discipline, 110 Nev. 380, 428 n.45, 873 P.2d 946, 976 n.45 (1994). The court noted Anderson never requested recusal, only objecting based on a "[p]ersonal conflict," making the argument arguably waived under Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). On the merits, attending school together more than twenty years earlier did not constitute the required extreme showing of bias.

In plain language

Brian Anderson and Sarah Byrd are the parents of a child, D.A., born in 2009. Anderson lives in Elko, Nevada, and originally had primary physical custody (meaning the child lived with him most of the time), while Byrd, who lives in Salem, Oregon, had parenting time during certain holidays and school breaks. In December 2020, while the child was staying with Byrd, the Nevada Division of Child and Family Services told Byrd that the child's half-sister had reported to a school counselor that Anderson had been abusing the children and drinking alcohol to excess. In January 2021, when Anderson drove to Oregon to pick up the child under the existing custody order, Byrd refused to let the child go. Anderson filed a motion asking the court to order Byrd to explain herself (an order to show cause), which the court granted. Byrd then filed a motion to change the custody order, and Anderson opposed it. The trial court held a two-day evidentiary hearing in October 2022. At the start, Anderson raised an objection because he knew the judge from high school more than twenty years earlier. The judge said there had been no contact between them since high school and that she held no ill will toward him. Anderson said he believed the judge and was ready to proceed. The court heard testimony from several witnesses, including Anderson, Byrd, and two of Anderson's ex-girlfriends. Byrd testified that Anderson would not tell her about the child's medical and dental appointments or school meetings, and described an incident where Anderson forcibly dragged the child down a driveway. Anderson denied dragging the child but admitted he "pushed [D.A.] in the truck," that he did not tell Byrd about an injury the child suffered at football practice, that he used a sledgehammer to destroy a phone Byrd had bought for the child, and that he struck the child with a belt. One ex-girlfriend, Heidi Harter, testified about Anderson's drinking during their relationship. After the hearing, the court granted Byrd's request to change custody. It found that Anderson had "demonstrated an absolute inability to co-parent" and that this amounted to a substantial change in circumstances affecting the child's welfare. The court then examined the factors Nevada law requires for deciding a child's best interest and concluded that the child's best interest would be served by giving Byrd primary physical custody, with Anderson getting parenting time on certain holidays and school breaks. The Court of Appeals affirmed. It explained that custody decisions are reviewed for "abuse of discretion" - meaning the appeals court will not overturn the decision unless it was unsupported by the evidence or clearly wrong - and that appellate judges do not re-weigh the evidence or second-guess which witnesses the trial judge believed. The court found the "inability to co-parent" finding was supported by the evidence, and noted that even if that finding were wrong, it would not matter because Anderson himself conceded that a substantial change in circumstances existed. On the custody award, the court noted that the trial judge had considered all the required best-interest factors, found that several favored Byrd, and that Anderson did not challenge those findings other than pointing to Byrd's act of withholding the child in 2020 - which the trial court had already counted in Anderson's favor. On the alcohol testimony, the court held that the ex-girlfriend gave a permissible lay opinion based on her own observations, not a medical diagnosis, and that the custody order did not even rely on Anderson's alcohol use. On recusal, the court held that Anderson never actually asked the judge to step aside, that his argument was arguably waived, and that simply having attended school together more than twenty years earlier did not show the kind of bias that would require the judge to recuse herself.