BACKMAN VS. GELBMAN (CHILD CUSTODY) C/W 91070

Statutes cited

Key holdings

Practitioner summary

**Standard of review.** The court reviewed child-custody determinations, including parenting-time decisions, for abuse of discretion, affirming factual findings supported by substantial evidence and leaving credibility determinations and weighing of evidence to the trier of fact. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007); Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996); Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009). The court noted it does not defer "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). Whether authority exists to award attorney fees is reviewed de novo; whether a claim was brought or maintained without reasonable ground is reviewed for abuse of discretion, In re Est. & Living Tr. of Miller, 125 Nev. 550, 552-53, 216 P.3d 239, 241 (2009); the amount of fees is reviewed for abuse of discretion, Logan v. Abe, 131 Nev. 260, 266, 350 P.3d 1139, 1143 (2015). **Substantial-change-in-circumstances prong.** Under NRS 125C.0035(1) and Davis, the sole consideration is the child's best interest, and a joint-physical-custody arrangement may be modified only where "(1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child's best interest is served by the modification." Romano v. Romano, 138 Nev. 1, 5, 501 P.3d 980, 983 (2022) (abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev. 401, 404-05, 535 P.3d 1167, 1171 (2023)); Ellis, 123 Nev. at 150, 161 P.3d at 242. The court must make "specific, relevant findings" on both prongs and tie the determination to those findings. Davis, 131 Nev. at 451-52, 352 P.3d at 1143. The threshold prong preserves custodial stability and discourages relitigation, Rennels v. Rennels, 127 Nev. 564, 573, 257 P.3d 396, 402 (2011), and the analysis must compare current circumstances to the baseline evidence underpinning prior rulings, Nance v. Ferraro, 134 Nev. 152, 159, 418 P.3d 679, 685 (Ct. App. 2018). Mere continuation or escalation of chronic conflict is generally insufficient, and custody may not be used to punish misconduct. Mosley v. Figliuzzi, 113 Nev. 51, 66, 930 P.2d 1110, 1119-20 (1997) (overruled on other grounds by Castle v. Simmons, 120 Nev. 98, 86 P.3d 1042 (2004)); Sims v. Sims, 109 Nev. 1146, 1149, 865 P.2d 328, 330 (1993). The court held that although the March 2024 order lacked a separately captioned substantial-change analysis, its detailed post-2018 findings—Backman's exclusion from D.G.'s school, a six-month protection order obtained by the pediatric practice, a misdemeanor battery conviction, withholding D.G. during the evaluation, and paranoid statements the court credited as emotionally harmful—"at least minimally explains" why circumstances were materially changed. Davis, 131 Nev. at 452, 352 P.3d at 1144. Distinguishing Murphy v. Murphy, 84 Nev. 710, 711, 447 P.2d 664, 665 (1965) (overruled on other grounds by Ellis), and Mosley, the court held Nevada precedent does not require a separate, stand-alone set of substantial-change findings where the best-interest findings clearly support both inquiries. Any error in failing to state the finding expressly was harmless under Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010), and NRCP 61, because remand would elevate form over substance. Marcuse v. Del Webb Cmtys., Inc., 123 Nev. 278, 285, 163 P.3d 462, 467 (2007); Valley Bank of Nev. v. Ginsburg, 110 Nev. 440, 445, 874 P.2d 729, 733 (1994). **Parenting coordinator and best-interest analysis.** Once a substantial change is shown, best interest is guided by NRS 125C.0035(4) and its subparts, with specific findings tied to those factors. Davis, 131 Nev. at 451-52, 352 P.3d at 1143. The court held the district court was not obligated, as an alternative to a custody change, to analyze whether shifting parenting-coordinator costs to Gelbman was feasible; the less-restrictive-alternative doctrine of Roe v. Roe, 139 Nev. 163, 176-77, 535 P.3d 274, 289-90 (Ct. App. 2023), was inapposite because it applied to different circumstances. Citing Harrison v. Harrison, 132 Nev. 564, 571, 376 P.3d 173, 178 (2016), and Rosie M. v. Ignacio A., 138 Nev. 539, 546 n.6, 512 P.3d 758, 764 n.6 (2022), the court concluded a coordinator, while potentially helpful, was not essential, and that need would diminish under the modified order. The best-interest findings were supported by substantial evidence bearing on NRS 125C.0035(4)(d), (f), and (g), and the court declined to reweigh evidence or credibility. Ellis, 123 Nev. at 149-50, 161 P.3d at 241-42; Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009); Lewis v. Lewis, 132 Nev. 453, 459, 373 P.3d 878, 882 (2016); Schwartz v. Schwartz, 126 Nev. 87, 90, 225 P.3d 1273, 1275 (2010). **Legal custody allocation.** Recognizing the fundamental parental right under Troxel v. Granville, 530 U.S. 57, 66 (2000), the court applied Rivero v. Rivero, 125 Nev. 410, 420-21, 216 P.3d 213, 221-22 (2009) (overruled in part by Romano), which holds that parents "need not have equal decision making power in a joint legal custody situation" and one parent may hold authority over specific domains such as education or healthcare. See also Mack v. Ashlock, 112 Nev. 1062, 1067, 921 P.2d 1258, 1262 (1996) (Shearing, J., concurring). The court held that vesting Gelbman with final decision-making authority over education, medical, and mental-health care—while preserving Backman's status as legal custodian, her information rights, and equal authority over religion and extracurriculars—was a permissible subject-matter allocation within joint legal custody rather than a disguised award of sole legal custody, and that no separate finding of unfitness is required to narrow a parent's authority in specific domains. The allocation was tied to and supported by substantial evidence. **Custody evaluator bias.** The court held Nevada law does not support automatic exclusion or reversal because a witness is claimed or shown to be biased; admissibility and competency of opinion testimony is "largely discretionary with the trial court," Watson v. State, 94 Nev. 261, 264, 578 P.2d 753, 756 (1978), and reliability, credibility, and partiality challenges go to weight, Passarelli v. State, 93 Nev. 292, 294, 564 P.2d 608, 610 (1977); Rowland v. Lepire, 99 Nev. 308, 312, 662 P.2d 1332, 1334 (1983). Bias is relevant to credibility but does not compel striking testimony. Capanna v. Orth, 134 Nev. 888, 892-93, 432 P.3d 726, 732 (2018); Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004). The district court expressly treated Dr. Coard's evaluation as "one piece of evidence" with "appropriate weight," did not adopt his recommendations wholesale, and grounded key findings in independent evidence, so declining to exclude the evaluation was not an abuse of discretion. Ellis, 123 Nev. at 152, 161 P.3d at 244; Schwartz, 126 Nev. at 90, 225 P.3d at 1275. **Vexatious-litigant status.** Applying the four-factor framework of Jordan v. State ex rel. Dep't of Motor Vehicles & Pub. Safety, 121 Nev. 44, 60-62, 110 P.3d 30, 42-44 (2005) (citing De Long v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir. 1990)), and Jones v. Eighth Jud. Dist. Ct., 130 Nev. 493, 496-500, 330 P.3d 475, 477-80 (2014), the court held nothing prohibits a represented party from voluntarily stipulating to vexatious-litigant status referencing the Jordan standard. Such stipulations made with counsel are "controlling and conclusive" absent mistake, fraud, or similar defect. Lehrer McGovern Bovis, Inc. v. Bullock Insulation, Inc., 124 Nev. 1102, 1118, 197 P.3d 1032, 1042 (2008). Although the stipulation's breadth (including counsel's filings) "sits uneasily" with the narrow-tailoring emphasis of Jordan and Jones, the resulting order was at best invited error, Eivazi v. Eivazi, 139 Nev. 408, 429, 537 P.3d 476, 494 (Ct. App. 2023); Chadwick v. State, 140 Nev. 104, 115, 546 P.3d 215, 227 (Ct. App. 2024). The custody order referenced the designation only once, contextually, and did not use custody to punish litigation conduct in violation of Sims, 109 Nev. at 1149, 865 P.2d at 330; any defect was harmless. Wyeth, 126 Nev. at 465, 244 P.3d at 778; NRCP 61. **Attorney fees—authority.** Fees require a statute, rule, or contract. Rowland, 99 Nev. at 315, 662 P.2d at 1336. NRS 18.010(2)(b) authorizes fees where a claim "was brought or maintained without reasonable ground or to harass," liberally construed to deter frivolous or vexatious claims; a claim is groundless when no credible evidence supports it. Capanna, 134 Nev. at 895, 432 P.3d at 734 (citing Rodriguez v. Primadonna Co., 125 Nev. 578, 588, 216 P.3d 793, 800 (2009)); Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 996, 860 P.2d 720, 724 (1993). The court held the statute allows fees where a claim proves unsupported once fully developed and should have been withdrawn, even if colorable at the outset. The court also observed that NRS 125C.250 served as an independent, unchallenged statutory basis, permitting affirmance on that alternative ground as forfeited. Hung v. Genting Berhad, 138 Nev. 547, 550, 513 P.3d 1285, 1288 (Ct. App. 2022). **Attorney fees—amount.** The amount lies within the district court's discretion under the Brunzell factors and, in domestic cases, the parties' relative financial positions. Miller v. Wilfong, 121 Nev. 619, 623-24, 119 P.3d 727, 730 (2005); Wright v. Osburn, 114 Nev. 1367, 1370, 970 P.2d 1071, 1073 (1998); Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969). Explicit Brunzell findings are not per se required, but the court must demonstrate it considered the factors and the award must be supported by substantial evidence. MEI-GSR Holdings, LLC v. Peppermill Casinos, Inc., 134 Nev. 235, 245, 416 P.3d 249, 259 (2018). The court found $12,553.50 incurred, $9,905.50 reasonable, and a reduction to $2,000 over 20 months justified by income disparity, noting imputed minimum-wage income of $2,080 per month from a related child-support matter, cf. NRS 47.170. Under the substantial-evidence standard, Williams, 120 Nev. at 566, 97 P.3d at 1129, the award and payment terms were within the court's discretion.

In plain language

Hope Backman and Daniel Gelbman share a child, D.G., born in 2013. They originally agreed to joint legal and physical custody. In 2018, after a hearing that showed substantial conflict between the parents, the district court kept joint legal custody but changed the physical-custody schedule. In 2023, Backman (then representing herself) asked to modify custody so she could move with D.G. to San Antonio, Texas, citing financial hardship, reduced income after the COVID-19 pandemic, and family support and job opportunities there. Gelbman opposed the move and filed his own request asking for primary physical custody, arguing circumstances had changed since 2018. Gelbman also asked the court to declare Backman a "vexatious litigant" (a person the court restricts from filing new matters freely), and Backman, through her lawyer, agreed to that designation in exchange for cancelling a scheduled hearing. That agreement required her future filings to go through a screening process before being accepted. The court appointed a custody evaluator, Dr. Herbert F. Coard III, who wrote reports about the parents' mental health and the child's situation. During the evaluation, the court temporarily gave Gelbman primary physical custody and limited Backman's contact with D.G., and by the time of the main hearing, Backman had gone many months without contact with the child. After a multi-day hearing, the court in March 2024 denied Backman's request to relocate and gave Gelbman primary physical custody. It kept "joint legal custody" on paper but gave Gelbman the final say over D.G.'s education and medical and mental-health care, while Backman kept information rights, emergency-care decision-making during her time with D.G., and joint authority over religion and extracurricular activities. Backman received alternating-weekend, holiday, and extended-summer time. The court declined to appoint a "parenting coordinator" (a neutral person who helps parents resolve disputes), reasoning that Backman could not afford to share the cost. The conflict continued. In early 2025, Backman filed an emergency motion claiming Gelbman's fiancée had physically injured D.G. The court screened the motion under the vexatious-litigant procedure, found it had arguable merit, and held a hearing. It then denied the motion, finding the injury was an accidental result of roughhousing rather than abuse. Gelbman asked for his attorney fees, and the court found Backman lacked a reasonable basis to keep pursuing the motion once the evidence was in. The court found more than $9,900 in fees reasonable but reduced the award to $2,000, payable at $100 per month, because of the parties' financial circumstances. Backman appealed both orders. The Court of Appeals rejected all of her arguments and affirmed. On the custody change, the court agreed the district court should have more clearly stated a separate finding that circumstances had "substantially changed" since 2018, but concluded the detailed factual findings already showed such a change, so any error was harmless. The court found the district court was not required to appoint a parenting coordinator, that giving Gelbman final say in certain areas was still a valid form of joint legal custody rather than a hidden grant of sole custody, and that the alleged bias of the evaluator went to how much weight his testimony deserved—not to whether it had to be thrown out. The court also concluded the vexatious-litigant designation was mentioned only in passing and did not drive the custody outcome, and that the attorney fees were properly awarded and reasonably calculated.