BACKMAN VS. GELBMAN

Statutes cited

Key holdings

Practitioner summary

Standard of review. Child support orders are reviewed for abuse of discretion. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). An abuse of discretion exists when findings are not supported by substantial evidence, Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009), and "deference is not owed to legal error, or to findings so conclusory they may mask legal error." Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). Doctrinal framework. A district court may modify a child support order only upon finding "a change in circumstances since the entry of the order and the modification is in the best interest of the child." Rivero, 125 Nev. at 431, 216 P.3d at 228. NRS 125B.145(4) provides that a 20-percent change in the gross monthly income of a party to the support order constitutes changed circumstances mandating review for modification. Modification itself remains discretionary even when a 20-percent change is shown. Rivero, 125 Nev. at 432-33, 216 P.3d at 228-29. Upon review, the court applies the guidelines promulgated by the Administrator of the Division of Welfare and Supportive Services pursuant to NRS 425.620, see NRS 125B.080, including the factors in NAC 425.150(1)(f) and (h) (relative income of both households and obligor's ability to pay). Identifying the controlling order. The court held that the controlling order for purposes of computing a 20-percent change under NRS 125B.145(4) is "the most recent substantive order setting forth the child support obligation and making findings regarding the respective incomes of the obligor and obligee parents," not subsequent orders denying motions to modify. The court drew an analogy to the custody-modification context, citing Rivero, 125 Nev. at 431, 216 P.3d at 228, Myers v. Haskins, 138 Nev. 553, 563-64 & n.15, 513 P.3d 527, 536-37 & n.15 (Ct. App. 2022), and Smith v. Rideout, 1 A.3d 441, 444-45 (Me. 2010). The May 2020 order - which imputed income to Backman equal to Gelbman's approximately $6,033 monthly PERS benefit and set support at zero based on joint physical custody - was the controlling order, not the January 2023 order affirming the December 2022 MFR. Evidentiary standard for triggering NRS 125B.145(4) review. Because neither NRS 125B.145(4) nor existing Nevada caselaw articulated the evidentiary standard for establishing a 20-percent change, the court adopted the prima facie evidence standard already used in Nevada to determine whether to hold a hearing on a motion to modify child custody. See Rooney v. Rooney, 109 Nev. 540, 542-43, 853 P.2d 123, 124-25 (1993); Myers, 138 Nev. at 556-57, 513 P.3d at 532. The court collected out-of-state authority applying the same standard to child support: Schwier v. Schwier, 446 P.3d 354, 358 (Alaska 2019); Johnson v. Johnson, 834 N.W.2d 812, 817 (Neb. Ct. App. 2013); Ritchey v. Ritchey, 920 N.Y.S.2d 105, 106 (App. Div. 2011); Harris v. Harris, 107 S.W.3d 897, 902 (Ark. Ct. App. 2003); State ex rel. Boston v. Tuckness, 958 S.W.2d 325, 326 (Mo. Ct. App. 1998); Dorfman v. Dorfman, 719 A.2d 178, 180 (N.J. Super. Ct. App. Div. 1998); Smith v. Smith, 606 So. 2d 897, 899 (La. Ct. App. 1992); Horan v. Horan, 464 So. 2d 224, 227 (Fla. Dist. Ct. App. 1985). Prima facie evidence is evidence that "demonstrates 'adequate cause' for a hearing, transcending mere allegations, which, if proven, may permit inferences sufficient to establish bases for modifying an order." Rooney, 109 Nev. at 542-43, 853 P.2d at 124-25. The court distinguished discretionary review under NRS 125B.145(4) from the non-discretionary three-year review provided in NRS 125B.145(1). Application. Backman submitted a WDCR 40(2) financial declaration, 2022 income data, a 2022 profit-and-loss statement for her cleaning business, landlord and auto-loan correspondence, a list of job applications, and testimony that she was earning $600-$800 per month - permitting the inference that her gross monthly income was less than $1,000 against the approximately $6,033 imputed in May 2020. See Metz v. Metz, 120 Nev. 786, 793, 101 P.3d 779, 784 (2004) (gross monthly income includes income from any source). That constituted prima facie evidence of a 20-percent-or-greater decrease, requiring a substantive review under NRS 125B.145(4) - including determination of each party's current income and application of the guidelines, NAC 425.150(1)(f), (h). The master's summary finding of no change in circumstances and termination of the hearing was an abuse of discretion, and the district court erred in affirming the MFR. Scope of review. The court declined to review the May 2020 imputation of income or any other prior order not identified in the notice of appeal, citing NRAP 4(a)(1) and Collins v. Union Fed. Sav. & Loan Ass'n, 97 Nev. 88, 89-90, 624 P.2d 496, 497 (1981). The court also declined to revisit jurisdictional and mootness arguments (NRAP 3A(b)(1), NRAP 3A(a), and a March 2024 custody order) that the supreme court had rejected when it denied Gelbman's motion to dismiss, citing law-of-the-case principles under Recontrust Co. v. Zhang, 130 Nev. 1, 7-8, 317 P.3d 814, 818 (2014). The court rejected Backman's separate argument that the master failed to make findings supporting deviation from NAC 425.140(1), reasoning that the equal-income imputation under joint physical custody produced an offset, not a deviation.

In plain language

Hope Backman and Daniel Gelbman have a child together, born in 2013, and have been litigating child support for years. In 2019, Gelbman retired from firefighting at age 44 and started drawing a public retirement pension. He asked the court to lower his child support based on his reduced income. At a May 2020 hearing, the family court master concluded that Backman had not adequately documented her own earnings from her self-employed house-cleaning work, and the master "imputed" income to Backman equal to Gelbman's pension - meaning the master treated her as if she earned about $6,033 per month even though she may not have. Because the parents shared joint physical custody and were treated as having equal income, child support was set at zero. Backman filed several motions over the next few years to revisit child support, but each was denied and the zero-dollar order remained in place. In February 2023, she filed another motion, this time presenting documents showing she was earning roughly $600 to $800 per month from house cleaning, that the COVID-19 pandemic had affected her employment, and that she was behind on rent and car payments. A deputy district attorney at the hearing tried to explain to the master that Backman's documents showed a more than 20-percent drop in her income. Under Nevada law - specifically NRS 125B.145(4) - a 20-percent change in a parent's gross monthly income requires the court to review the child support order. The master cut the hearing short, said there had been no change in circumstances, and recommended leaving child support at zero. The district court agreed. The Court of Appeals reversed. The court answered two questions. First, when comparing income to determine whether there has been a 20-percent change, which prior order is the "controlling" one - the original order that actually calculated each parent's income, or any later orders that simply denied motions to modify without making new income findings? The court held that the controlling order is the most recent substantive order that set the support amount and made findings about each parent's income. Here, that was the May 2020 order, not the later denials. Second, what kind of evidence does a parent need to produce to trigger the mandatory review under NRS 125B.145(4)? The court held that the parent must present "prima facie evidence" - meaning credible evidence that, if accepted, would show the 20-percent change. Mere allegations are not enough, but a full trial-quality showing is not required at this threshold stage. Applying those rules, the court concluded that Backman's financial declaration, 2022 income information, profit-and-loss statement, supporting documents, and testimony that she was earning $600-$800 per month met the prima facie threshold and showed a more than 20-percent drop from the roughly $6,033 imputed to her in May 2020. The master was therefore required to conduct a substantive review - which would mean determining each parent's current income and applying the state's child support guidelines - and his refusal to do so was an abuse of discretion. The court sent the case back to the district court for that review. The court emphasized that requiring a review does not mean child support must actually be changed; it only means the court must look at the question on the merits. The Court of Appeals also explained what it was not deciding. It could not reconsider the May 2020 order itself, including the decision to impute income to Backman, because she did not appeal that order in time and did not list it in her notice of appeal.