ARMSTRONG VS. BALL (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's child custody and child support determinations for an abuse of discretion under Rivero v. Rivero, 125 Nev. 410, 428, 438, 216 P.3d 213, 226, 232 (2009), overruled on other grounds by Romano v. Romano, 138 Nev. 1, 501 P.3d 980 (2022). Procedural due process issues were reviewed de novo, with the court noting that "[p]rocedural due process requires reasonable notice and an opportunity to be heard" per Callie v. Bowling, 123 Nev. 181, 183, 160 P.3d 878, 879 (2007). On the abduction presumption, NRS 125C.0035(7) creates a rebuttable presumption against awarding sole or joint physical custody or unsupervised parenting time to the perpetrator of an abduction, applicable where the district court has found by clear and convincing evidence that a parent committed "any act of abduction against the child." The court held that the district court failed to properly apply the presumption because it did not make the findings necessary to invoke the presumption by clear and convincing evidence. Additionally, although the district court found that Jamie had rebutted the presumption against being awarded unsupervised parenting time, it nonetheless applied the presumption against her in the physical custody determination without the necessary findings and ordered initially supervised parenting time even though the parties apparently agreed to unsupervised parenting time. The court concluded this constituted reversible error because it affected Jamie's substantial rights regarding parenting time, citing Khoury v. Seastrand, 132 Nev. 520, 539, 377 P.3d 81, 94 (2016) (an error is prejudicial, and thus reversible, when it affects the party's substantial rights). On procedural due process, the court analyzed WDCR 4(9), which governs the application for setting. Under the rule, the applicant is responsible for producing "one original and the necessary copies of the 'Application for Setting' form on which the court department shall endorse the date and time of such setting," and the applicant "shall file the original and serve a copy upon counsel for each party." The court found that the application for setting in the record, while electronically filed, contained no certificate of service and did not appear to have been endorsed by the district court as required to confirm the trial date. The district court made no findings as to whether Jamie received the application for setting or otherwise received notice of the official trial date—as opposed to the date merely requested by counsel. The court noted in a footnote that the register of actions listed a "proof of electronic service" entry filed shortly after the application, but that document was not in the record and, in any event, did not remedy the absence of district-court endorsement confirming the official trial date. Applying these principles, the court concluded that Jamie had only a few days to prepare for trial, represented herself, and was unable to call witnesses, and that the failure to provide proper notice of the official trial date violated her due process rights (citing Callie) and affected her ability to present evidence pertaining to child custody. The court invoked Roe v. Roe, 139 Nev., Adv. Op. 21 (Ct. App. July 27, 2023), for the proposition that "[t]he parent-child relationship is a fundamental liberty interest." Because the district court failed to properly apply the abduction presumption, the court reversed the order establishing custody, parenting time, and child support and remanded for further proceedings ensuring both parties have adequate time to prepare and present their cases. Pending remand, the court left in place the custody arrangement set forth in the district court's October 17, 2022, order, subject to modification to comport with current circumstances, citing Davis v. Ewalefo, 131 Nev. 445, 452, 352 P.3d 1139, 1146 (2015). The court also noted the district court may need to enter a new discovery order on remand, citing DeChambeau v. Balkenbush, 134 Nev. 625, 630, 431 P.3d 359, 363 (Ct. App. 2018) (district courts have discretion to issue new scheduling orders on remand).

In plain language

Jamie Armstrong and Duane Ball were never married but have one child together, N.B., born in June 2019. In October 2021, Duane filed a petition asking the court to establish custody, requesting sole legal and physical custody. Jamie had a lawyer during much of the case, but her attorney withdrew in April 2022, after which Jamie represented herself. A dispute arose over whether Jamie was properly told when the trial would take place. In July, Duane's lawyer filed an "application for trial setting"—a document requesting a date for trial—stating that trial would begin September 26. But according to the court, that filing had no certificate of service (proof it was delivered to Jamie), and it did not show that the district court had officially approved and endorsed that date. Jamie said repeatedly at trial that she only learned about the September 26 trial date a few days beforehand. The district court noted that the trial had been set for months but did not make any findings about whether Jamie had actually received timely notice, and it let the trial go forward. Because of the short notice, Jamie said she could not submit her exhibits on time, and only some were admitted. She also tried to bring witnesses on the second day of trial, but the court refused to allow them because she had not disclosed them in advance. After the two-day trial, the court entered an order giving the parties joint legal custody and Duane primary physical custody. The court found that Jamie had removed and concealed N.B. from Duane between late September and early November 2021. It concluded that this triggered a legal presumption under Nevada law (NRS 125C.0035(7))—a rule that assumes it is not in a child's best interest to give custody or unsupervised time to a parent who has committed "any act of abduction against the child." Interestingly, the court found that the presumption against Jamie having unsupervised parenting time had been overcome (rebutted), partly because Duane himself had asked that Jamie get unsupervised time. But the court still applied the presumption against Jamie when it came to physical custody, and it set up a schedule of supervised parenting time that could increase over time with clean drug tests. On appeal, the Court of Appeals concluded the district court did not properly apply the abduction presumption because it did not make the required findings to invoke the presumption by clear and convincing evidence, and it applied the presumption to the physical custody decision without the necessary findings—even after finding the presumption had been rebutted regarding parenting time. The court also concluded that Jamie's lack of notice of the official trial date likely made the problem worse and affected her constitutional right to fair procedures (due process), because she had only a few days to prepare, represented herself, and could not call her witnesses. For these reasons, the court reversed and sent the case back for new proceedings that give both sides adequate time to prepare.