ARZOLA VS. ESTRADA (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the child custody order, child support determination, relocation question, and attorney fees award for abuse of discretion. *Wallace v. Wallace*, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996); *Romano v. Romano*, 138 Nev., Adv. Op. 1, 501 P.3d 980, 985 (2022); *Flynn v. Flynn*, 120 Nev. 436, 440, 92 P.3d 1224, 1227 (2004); *Miller v. Wilfong*, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005). Factual findings supported by substantial evidence — evidence a reasonable person may accept as adequate to sustain a judgment — will not be set aside, and the court does not reweigh conflicting evidence or assess witness credibility. *Ellis v. Carucci*, 123 Nev. 145, 149, 152, 161 P.3d 239, 242, 244 (2007). **Custody.** The court addressed Ida's four arguments. On the modification argument, the court held it was waived because not raised below, *Old Aztec Mine, Inc. v. Brown*, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981), and that it failed on the merits because NRS 125C.0015(2) provides that where a court has not made a custody determination, each parent has joint physical custody until otherwise ordered; thus no modification was required for an initial custodial determination. See *Rosie M. v. Ignacio A.*, 138 Nev., Adv. Op. 49, 512 P.3d 758, 763 (2022). On the *Bluestein* argument, the court explained that *Bluestein v. Bluestein*, 131 Nev. 106, 109, 345 P.3d 1044, 1046 (2015), makes the best interest of the child the primary consideration and the 40-percent guideline a "tool," with percentage of time merely a consideration; the district court weighed the NRS 125C.0035(4) factors and considered apportionment of time, so no abuse of discretion occurred. On the failure-to-consider-joint-custody argument, the court applied the invited-error doctrine because Ida did not seek joint physical custody as an alternative, *Pearson v. Pearson*, 110 Nev. 293, 297, 871 P.2d 343, 345 (1994), and found the parties had requested a primary-custody designation; the court also found Ida had not shown a different outcome. On the best-interest argument, the court found the district court's detailed NRS 125C.0035(4) analysis was well supported by substantial evidence, with four factors favoring Alfonso (NRS 125C.0035(4)(c), (d), (e), (f)) and NRS 125C.0035(4)(g) neutral but leaning toward Alfonso, and none favoring Ida. Citing NRCP 61, the court concluded any alleged error did not affect the outcome. **Relocation.** The court rejected the relocation argument on three grounds: (1) waiver under *Old Aztec Mine*; (2) that the plain language of NRS 125C.007 applies to a relocating parent, and Ida cited no authority extending it to a relocating child where an already out-of-state parent exercising joint physical custody under temporary orders seeks an initial custodial determination, see *Edwards v. Emperor's Garden Rest.*, 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006); and (3) that even assuming relocation applied, the relocation factors under NRS 125C.007 substantially overlap the NRS 125C.0035(4) best-interest factors, see *Schwartz v. Schwartz*, 107 Nev. 378, 382, 812 P.2d 1268, 1270 (1991); *Monahan v. Hogan*, 138 Nev., Adv. Op. 7, 507 P.3d 588, 592 (Ct. App. 2022), and Ida failed to show what factor would have changed the result. **Child support.** Both parents have a duty of maintenance under NRS 125B.020. NAC 425.140 sets the guideline (16 percent of gross income for one child), and a downward deviation is discretionary under NAC 425.150(1), with relevant factors including the cost of transportation for parenting time, the relative income of both households, and the obligor's ability to pay, NAC 425.150(1)(e), (f), (h). The court held that although the district court found "no adjustment evidence was provided pursuant to NAC 425.150," the court's own findings demonstrated otherwise — including that Alfonso earns approximately $250,000 annually, is a law-firm partner, has family childcare support, and could waive Ida's support, while Ida was enrolled at community college with expenses exceeding income. The court held ample evidence supported consideration of the adjustment evidence and a deviation, so the failure to consider it was an abuse of discretion, and reversed and remanded to apply the deviation factors. (Parties may stipulate to alternative child support orders under NAC 425.110.) **Attorney fees and costs.** Attorney fees are available only when authorized by rule, statute, or contract, *Henry Prods., Inc. v. Tarmu*, 114 Nev. 1017, 1020, 967 P.2d 444, 446 (1998), and a district court must make specific findings and provide an adequate explanation for appellate review, *Davis v. Ewalefo*, 131 Nev. 445, 452, 352 P.3d 1139, 1143 (2015). Failure to state a basis is an arbitrary and capricious action and thus an abuse of discretion. *Henry Prods.*, 114 Nev. at 1020, 967 P.2d at 446. In family law cases, the court must consider the *Brunzell* factors (*Brunzell v. Golden Gate National Bank*, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969)) along with any disparity in the parties' income under *Wright v. Osburn*, 114 Nev. 1367, 1370, 970 P.2d 1071, 1073 (1998); *Miller*, 121 Nev. at 623, 119 P.3d at 730. The court found Alfonso's memo deficient: NRS 125C.0075 was inapplicable (it allows fees to a non-relocating parent for wrongful or criminal activity not alleged here), and NRS 18.010(2)(b) requires specific findings that a claim was brought or maintained "without reasonable ground or to harass the prevailing party," findings not made here. Alfonso analyzed *Brunzell* but failed to address *Miller*'s requirement to address income disparity, despite Ida raising it. The district court cited no legal basis, made no *Brunzell* or *Wright*/income-disparity findings, and made no NRS 18.010(2)(b) findings. The court noted an award under NRS 18.010(2) is discretionary ("the court may make an allowance"), that costs under NRS 18.020 are mandatory only in enumerated cases not applicable here, and that the district court failed to apportion the combined $40,000 award, precluding meaningful review. See *Jitnan v. Oliver*, 127 Nev. 424, 433, 254 P.3d 623, 629 (2011). Alfonso's NRS 125C.250 argument was waived under *Old Aztec Mine* and, in any event, did not explain why *Miller* need not be satisfied, see *Edwards*, 122 Nev. at 330 n.38, 130 P.3d at 1288 n.38. The court reversed the fees-and-costs award.

In plain language

This case is about a custody, child-support, and attorney-fee dispute between two parents of a young child. Alfonso Estrada is an attorney living in Los Angeles who met Ida Arzola in 2017 at a Las Vegas strip club where she worked as a dancer. They had a relationship, and a child, A.E., was born in May 2019. After the birth, the relationship became contentious. Alfonso asked the court for primary physical custody (meaning the child would live with him most of the time). Ida asked for primary physical custody too, and she also asked for child support. The parents agreed to share legal custody (decision-making about the child). While the case was pending, the court set up a temporary arrangement where they shared physical custody, exchanging the child each week in Barstow, California, and temporarily ordered Alfonso to pay Ida $1,583 per month in child support plus $5,000 in attorney fees. By this time, Ida was working as a food server earning about one-tenth of Alfonso's salary and had started nursing school. After a two-day trial, the district court awarded primary physical custody to Alfonso on a three-week-on, two-week-off schedule, with two extra weeks for Alfonso during the year. The court kept Nevada as the child's official home ("habitual residence") and set a status check before the child starts school. It also ordered Ida to pay Alfonso $400 per month in child support and awarded Alfonso attorney fees, saying only that he was the "prevailing party." Alfonso later asked for $48,217 in fees and $2,138.77 in costs; the court ultimately ordered Ida to pay a combined $40,000 in fees and costs, without saying how much was fees and how much was costs. Ida appealed. The Court of Appeals reached three main conclusions. First, on custody, the court upheld the district court's decision to give Alfonso primary physical custody. The court rejected Ida's arguments: that this was really a modification of an existing custody arrangement (it was not, because there had been no prior custody determination); that a case called *Bluestein* required treating the arrangement as joint custody (the court explained percentage of time is just one consideration and the child's best interest controls); that the court had to consider joint custody even though neither parent asked for it (Ida had not requested it and could not now complain of an error she helped cause); and that the court misapplied the best-interest factors (the court found the district court's detailed findings were supported by the evidence). Second, on the claim that the court improperly "relocated" the child to California, the court found Ida had not raised this argument below, had not cited supporting authority, and had not shown that a relocation analysis would have changed the outcome. Third, on child support and attorney fees, the court sided with Ida. On child support, the court held the district court should have considered whether to reduce Ida's payment given the large income gap between the parties, and it reversed and sent that issue back. On attorney fees, the court held the award could not stand because the district court gave no legal basis for it and failed to make required findings — including about the income disparity — and because Alfonso's own filings were deficient. The court reversed and remanded the fee-and-cost order.