ASKEW VS. ASKEW (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

**Standard of review.** District courts have broad discretion in child custody cases, reviewed for abuse of discretion; factual findings will not be disturbed if supported by substantial evidence — "evidence that a reasonable person may accept as adequate to sustain a judgment." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-242 (2007). The court presumes the district court properly exercised its discretion in determining the child's best interest. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). Community property disposition is reviewed for abuse of discretion, Kogod v. Cioffi-Kogod, 135 Nev. 64, 75, 439 P.3d 397, 406 (2019), as is alimony, over which the district court has broad discretion, Buchanan v. Buchanan, 90 Nev. 209, 215, 523 P.2d 1, 5 (1974). **Custody framework.** The best interest of the child is the sole consideration under NRS 125C.0035(1). The Legislature indicated a preference for joint physical custody in some cases, NRS 125C.0025(1)(b), but the converse applies where the court finds by clear and convincing evidence that a parent has committed one or more acts of domestic violence against the child or the other parent, NRS 125C.003(1)(c), creating a rebuttable presumption that joint custody by the perpetrator is not in the child's best interest. Where the presumption applies, the court must set forth findings of fact supporting its determination that an act of domestic violence occurred and that the custody order adequately protects the child and parent. NRS 125C.0035(5). "Domestic violence" is defined as "any act described in NRS 33.018." NRS 125C.0035(10)(b). The rebuttal is analyzed under the totality of the evidence. Castle v. Simmons, 120 Nev. 98, 102-03, 86 P.3d 1042, 1045-46 (2004). **Application (custody).** The district court found by clear and convincing evidence that both parties committed acts of domestic violence in March 2020, determined Monika was the primary aggressor, and applied the NRS 125C.003(1)(c) presumption against her. After analyzing the NRS 125C.0035(4) factors, the court found the presumption rebutted and joint custody in I.A.'s best interest. Troy argued the court ignored the hanger incident as an act of domestic violence against I.A. The appellate court acknowledged the district court did not address whether the hanger incident qualified as a separate act of domestic violence for the presumption, characterizing this as "potentially an error." See Hayes v. Gallacher, 115 Nev. 1, 7, 972 P.2d 1138, 1141-42 (1999). However, the court held any error harmless. See Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010); cf. NRCP 61. Unlike Hayes, where the district court gave no consideration to domestic violence, here the court considered the hanger incident, found it "rises to the level of abuse," found it isolated and remote in time with no further reported incidents, still applied the presumption against Monika based on the domestic violence against Troy, and found the joint custody arrangement would adequately protect both Troy and I.A. See Alvarado v. Alvarado, No. 62794-COA, 2015 WL 6830758, at *2 (Nev. App. Nov. 5, 2015). The court declined to reweigh evidence or credibility. Schwartz v. Schwartz, 126 Nev. 87, 91, 225 P.3d 1273, 1276 (2010). Substantial evidence supported the best-interest analysis. Ellis, 123 Nev. at 149, 161 P.3d at 242. **Application (property).** A district court must make an equal disposition of community property absent a "compelling reason" for an unequal one. NRS 125.150(1)(b). Financial misconduct or dissipation can constitute such a reason. Lofgren v. Lofgren, 112 Nev. 1282, 1283, 926 P.2d 296, 297 (1996). The court found Troy's deferred compensation withdrawal was an intentional misappropriation of community funds. The appellate court held Troy was not entitled to relief because the record showed the court awarded Monika only $25,504 — her half of the community share after Troy received his pre-marriage balance as separate property — and, although Monika received assets worth $102,260 more, she was ordered to pay Troy an offset of approximately $51,000, resulting in an equal distribution. On the JPI, the court found the district court did not rely on it as a separate compelling reason but merely noted the withdrawal violated it; the lack of service was harmless because Troy acknowledged the JPI in his answer and counterclaim. See Conley v. Eldorado Resorts Corp., Nos. 78486-COA & 78856-COA, 2020 WL 5558009, at *6 (Nev. App. Sept. 16, 2020). Under EDCR 5.703(c), the JPI is automatically effective against the requesting party when issued. **Application (alimony).** Alimony is "financial support paid from one spouse to the other whenever justice and equity require it." Rodriguez v. Rodriguez, 116 Nev. 993, 999, 13 P.3d 415, 419 (2000); NRS 125.150(1)(a). A court must consider the 11 factors in NRS 125.150(9). Devries v. Gallio, 128 Nev. 706, 712, 290 P.3d 260, 264-65 (2012). Alimony may be based on the receiving spouse's need and paying spouse's ability to pay, or to compensate for economic loss from the marriage and divorce. Kogod, 135 Nev. at 68, 70, 439 P.3d at 401, 403. The court found Troy's gross monthly income was $8,858 and Monika's earning capacity was $2,700 per month. Even assuming the court erred by comparing Troy's gross income to Monika's net income, the court held any error harmless because Troy did not argue the award would have differed and the income comparison was only one factor. Wyeth, 126 Nev. at 465, 244 P.3d at 778; Winn v. Winn, 86 Nev. 18, 20, 467 P.2d 601, 602 (1970). The court found the district court properly considered all necessary NRS 125.150(9) factors and made detailed findings. Troy's argument regarding the credit card debt was rejected as a bare claim lacking cogent argument or authority. Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006).

In plain language

Troy and Monika Askew married in December 2006 and had one child, I.A., born in June 2009. Troy worked as a firefighter and had retirement and deferred compensation accounts; Monika ran a photography business but agreed to stay home with the child after I.A.'s birth. After a March 2020 incident in which Monika slapped Troy and Troy hit her back — with the child present — Monika was arrested and Troy obtained a temporary protective order. The parties later agreed to dissolve that order and shared temporary custody. Monika filed for divorce in March 2020. Several events shaped the case. In September 2020, Troy closed his deferred compensation account, withdrew its $98,672 balance, moved it to a separate account, and wired $65,000 to his mother — he later said $35,000 repaid a loan and $30,000 was for his mother "to hold for him." That same month, the child was hospitalized after expressing suicidal thoughts and told providers her mother had hit her. Monika admitted in the divorce proceedings that she once used a hanger to "swat" the child. Troy then sought another protective order on the child's behalf, but the court did not extend it because the application cited no new violence, only the earlier hanger incident. After a five-day trial, the district court entered a divorce decree in February 2022. On custody, the court found that both parents had committed domestic violence against each other in the March 2020 incident, but that Monika was the "primary physical aggressor," which triggered a legal presumption against giving her joint custody. A "presumption" here is a starting assumption the law makes that a party can overcome with enough evidence. The court examined the statutory "best interest of the child" factors, concluded the presumption had been overcome, and ordered joint physical custody with the child rotating three days at a time between each parent. On money, the court found that Troy's withdrawal from his deferred compensation account was a misappropriation of community funds meant to deprive Monika, which gave a "compelling reason" to divide property unequally. In the end, though, the court divided the community property equally: Monika received about $100,000 more in assets but was ordered to pay Troy roughly $50,010 as an offset to balance things out. The court also awarded Monika alimony of $800 per month for 72 months. The Court of Appeals affirmed on all three issues. On custody, it noted the district court did not separately label the hanger incident as an act of domestic violence against the child (which "was potentially an error"), but concluded any error was harmless because the court still applied the presumption against Monika, considered the hanger incident within its best-interest analysis, found it isolated and remote in time, and found the joint custody arrangement would protect the child. The appellate court also stressed that it does not reweigh evidence on appeal. On the property division, it explained that the court actually divided property equally after the offset, so Troy suffered no unequal treatment; and that although Troy was not formally served with the Joint Preliminary Injunction, he acknowledged and asked to be bound by it, so any lack of service was harmless. On alimony, the court found no abuse of discretion, holding that even if the district court compared Troy's gross income to Monika's net income, any such error was harmless and the required statutory factors were properly considered.