BACKMAN VS. GELBMAN

Statutes cited

Key holdings

Practitioner summary

The court reviewed the child support order for abuse of discretion, citing Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). An abuse of discretion occurs when findings are not supported by substantial evidence, per Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009), overruled in part on other grounds by Romano v. Romano, 138 Nev. 1, 6, 501 P.3d 980, 984 (2022). The court emphasized that "deference is not owed to legal error, or to findings so conclusory they may mask legal error," quoting Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). On the doctrinal framework, the court applied the rule from Rivero that a district court has authority to modify a child support order only upon finding a change in circumstances since entry of the order and that modification is in the best interest of the child. Under NRS 125B.145(4) and Rivero, 125 Nev. at 432, 216 P.3d at 228, a change of 20 percent or more in a party's gross monthly income constitutes changed circumstances requiring a review for modification. The court first addressed the scope of appeal. Because Backman did not identify the May 2020 MFR or the district court order affirming it in her notice of appeal, the court held it could not review that order for abuse of discretion, citing Collins v. Union Fed. Sav. & Loan Ass'n, 97 Nev. 88, 89-90, 624 P.2d 496, 497 (1981). However, under Rivero, in reviewing a motion to modify, the court must determine whether there "has been a change in circumstances since the entry of the order." The court identified the May 2020 order affirming the master's MFR as the controlling order - the last time the court made a finding about the parties' income, imputing to Backman gross income of approximately $6,033 per month (equal to Gelbman's PERS benefit). The court rejected Gelbman's contention (which it characterized as misstating Rivero by inserting "[prior]") that the controlling order was the January 2023 order affirming the December 2022 MFR. Applying the standard, the court found that Backman's WDCR 40(2) financial declaration, 2022 income information, 2022 profit-and-loss statement, and related documents, together with her testimony that she was earning only $600-$800 per month, were sufficient to suggest her income had decreased by more than 20 percent since the May 2020 imputation. Analogizing to the evidentiary-hearing threshold in the custody context, the court cited Myers v. Haskins, 138 Nev. 553, 557, 513 P.3d 527, 532 (Ct. App. 2022), noting that while courts need not hold hearings on naked assertions, a substantive review is required when some credible evidence supports the request for relief. The court reiterated the distinction that evidence of a greater than 20 percent decrease in income does not require modification but does require review of the order, and that such review entails considering the applicable guidelines. See Rivero, 125 Nev. at 432-33, 216 P.3d at 228-29; NRS 125B.080; NAC 425.150(1)(f), (h) (requiring evaluation of "[t]he relative income of both households" and "[t]he obligor's ability to pay"). The court noted in a footnote that, effective February 1, 2020, courts apply the guidelines established by the Administrator of the Division of Welfare and Supportive Services pursuant to NRS 425.620, per NRS 125B.080. The court held that the master summarily found no change of circumstances, ended the hearing, failed to conduct the review mandated by NRS 125B.145(4), and failed to consider the proper child support guidelines, and that his conclusory findings may mask legal error under Davis. Accordingly, the district court abused its discretion in affirming the MFR. The court rejected Backman's separate argument that the master failed to provide specific findings for deviating from the NAC 425.140(1) formula, reasoning that because equal income was imputed to both parties in 2020, there was no deviation because the parents' incomes offset. Remaining arguments were disposed of under Johnson v. Dir., Nev. Dep't of Prisons, 105 Nev. 314, 315 n.1, 774 P.2d 1047, 1048 n.1 (1989).

In plain language

Hope Backman and Daniel Gelbman have a child born in 2013 and have been fighting over child support since shortly afterward. From 2014 to 2019, Gelbman paid Backman between $731 and $858 per month. In 2019, Gelbman retired from firefighting at age 44 and asked the court to reduce his payments because his income had dropped by more than 20 percent. At a May 2020 hearing, Backman gave the family court master a required financial declaration, Venmo records from her house-cleaning work, and bank account screenshots. The master decided those records were not enough to figure out her income, so he "imputed" income to her - meaning he assigned her an income figure - equal to Gelbman's, and set child support at zero dollars. Over the next few years, Backman filed several motions asking the court to change the zero-dollar support order, citing things like the COVID-19 pandemic wiping out her work and Gelbman allegedly earning money from real estate and substitute teaching. Some of those motions lacked supporting documents, and all were denied; support stayed at zero. In February 2023, Backman tried again, this time saying she was unemployed, close to homelessness, and wanted to relocate. Before the hearing she submitted a financial statement, her 2022 income information, a 2022 profit-and-loss statement for her cleaning business, a text from her landlord about being behind on rent, a past-due auto loan notice, and a list of jobs she had applied to. At the hearing, when Backman tried to explain that she had lost her cleaning job, the master interrupted and said it was his turn to talk. A deputy district attorney tried to point out that her documents showed a more than 20 percent income drop since the last hearing, but the master interrupted again, said there was no change of circumstances, and ended the hearing. He then recommended denying her motion. The district court affirmed. The Court of Appeals agreed with Backman that the master got it wrong. Nevada law (NRS 125B.145(4)) says a change of 20 percent or more in a parent's income counts as a "changed circumstance" that requires the court to review the support order. The court explained the difference between reviewing an order and actually changing it: presenting evidence of a 20 percent income drop does not automatically lower or raise support, but it does require the master to actually look at the order and run the numbers under the proper guidelines. Because the master refused to conduct that review and made only conclusory findings, the appeals court reversed and sent the case back for proceedings consistent with its order. One thing the court did NOT do was review the original May 2020 order that imputed income to Backman. Because Backman did not name that order in her notice of appeal, the court said it could not review that order for abuse of discretion. But the court still used the May 2020 order as the baseline (the "controlling order") for measuring whether her income had changed by 20 percent.