BARBER VS. BARBER (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review: A motion to set aside a default judgment "is addressed largely to the sound discretion of the court, and will not be disturbed on review unless there has been an abuse of discretion." Cicerchia v. Cicerchia, 77 Nev. 158, 161, 360 P.2d 839, 841 (1961). Framework: "A default judgment not supported by proper service of process is void and must be set aside." Browning v. Dixon, 114 Nev. 213, 218, 954 P.2d 741, 744 (1998); see C.H.A. Venture v. G.C. Wallace Consulting Eng'rs., Inc., 106 Nev. 381, 383-84, 794 P.2d 707, 709 (1990). By contrast, a default judgment is only voidable if the proof exhibited had "a legal tendency to show a case of jurisdiction," Vaile v. Eighth Judicial Dist. Court, 118 Nev. 262, 271, 44 P.3d 506, 513 (2002) (quoting Moore v. Moore, 75 Nev. 189, 193, 336 P.2d 1073, 1075 (1959)), abrogated on other grounds by Senjab v. Alhulaibi, 137 Nev., Adv. Op. 64, 497 P.3d 618 (2021). Application: The district court found service proper based on Helmick's purported signature on the acceptance-of-service forms, citing general agency principles under which "an attorney's act is considered to be that of the client in judicial proceedings when the client had expressly or impliedly authorized the act." Huckabay Props., Inc. v. NC Auto Parts, LLC, 322 P.3d 429, 434 (2014). Because there was a colorable case for jurisdiction when the default judgment was entered, the judgment was not void; but it would be voidable if the district court did not in fact have jurisdiction at the time of entry. Kaur v. Singh, 136 Nev., Adv. Op. 77, 477 P.3d 358, 362 (2020); Browning, 114 Nev. at 218, 954 P.2d at 744. Alan's countermotion, supported by a sworn affidavit, asserted that Helmick "was not authorized or retained to accept service or otherwise act" on his behalf, and nothing in the record from Helmick evidenced authority to receive service. See Foster v. Lewis, 78 Nev. 330, 333, 372 P.2d 679, 680 (1962) ("Where the evidence that the person served was not authorized by the defendant to receive service of process is uncontradicted . . . such denial of authority must be taken by the court as true . . . ."); see also United States v. Ziegler Bolt & Parts Co., 111 F.3d 878, 881 (Fed. Cir. 1997) ("The mere relationship between a defendant and his attorney does not, in itself, convey authority to accept service."). Taken as true, Alan's allegations created a factual controversy as to whether service was proper and thus whether the district court had jurisdiction when it entered the default judgment. The district court, however, failed to construe the countermotion under NRCP 60(b) for lack of service - despite the rule's liberal construction in divorce proceedings, Cicerchia, 77 Nev. at 161, 360 P.2d at 841; Carlson v. Carlson, 108 Nev. 358, 361-62, 832 P.2d 380, 382 (1992) - and, though it acknowledged it did not "have enough information" on the service issue, it upheld the default judgment without taking further evidence. The court could not conclude service was valid merely because a Nevada attorney signed the acceptance of service without first determining the attorney was authorized: "In the absence of actual specific appointment or authorization, and in the absence of a statute conferring authority, an agency to accept service of process will not be implied." Foster, 78 Nev. at 333, 372 P.2d at 680. Holding and remand instructions: The Court of Appeals held the district court abused its discretion in failing to resolve the factual dispute over whether Alan gave Helmick consent to accept service, reversed the denial of the motion to set aside, and remanded. If service was improper and the default should be voided, a new decree of divorce will necessarily be considered and entered. If service was valid, the district court should evaluate in the first instance, under a proper NRCP 60(b) analysis, whether to set aside the decree's provisions on (1) custody (see Davis v. Ewalefo, 131 Nev. 445, 352 P.3d 1189 (2015), requiring "express findings as to the best interest of the child in custody and visitation matters"); (2) child support (see NAC 425.015, 425.120); and (3) community property distribution (see Blanco v. Blanco, 129 Nev. 723, 731-32, 311 P.3d 1170, 1175 (2013), concluding that "[t]he equal disposition of community property may not be dispensed with through default" and that findings must be made under NRS 125.150). The court did not reach the merits of Alan's additional appellate arguments.

In plain language

Alan and Brianna Barber were married in 2013 and have two children. After one of the children told Brianna that Alan had been sexually assaulting her over an extended period, Brianna contacted law enforcement, Alan was arrested, and Brianna obtained a temporary restraining order. Alan was later released while the criminal case proceeded, but Brianna did not know where he was. Brianna filed an amended complaint for divorce seeking sole custody of the children with no parenting time for Alan, child support, and division of the couple's community property. Rather than serving Alan personally, her attorney delivered the summons and amended complaint to Ryan Helmick, the lawyer representing Alan in the pending criminal case. Helmick apparently signed the acceptance of service. Alan never responded, the court clerk entered a default (a finding that a party failed to answer), and after a "prove-up" hearing at which Brianna testified, the district court entered a divorce decree by default. The decree gave Brianna 100 percent of the marital home. When Brianna later asked the court clerk to sign a quitclaim deed transferring the home, Alan learned of the divorce proceedings, hired a lawyer, and asked the court to set aside the decree. He said he had never authorized Helmick to accept service for him, so he was never properly served. The district court denied his request. Although the court acknowledged at the hearing that it did not "have enough information" about the service issue, it did not find the service invalid, and it declined to consider Alan's other arguments because his motion did not invoke the specific grounds listed in NRCP 60(b)(1) (mistake, inadvertence, surprise, or excusable neglect). The Nevada Court of Appeals reversed. It explained that "[a] default judgment not supported by proper service of process is void and must be set aside," and that the mere fact that a Nevada-licensed attorney signed an acceptance of service does not by itself show the attorney was authorized to accept service for the client. Alan's sworn assertion that Helmick was not authorized to accept service was uncontradicted, which created a factual dispute the district court was required to resolve. The Court of Appeals sent the case back with instructions: the district court must decide whether Helmick actually had Alan's consent to accept service. If service was improper, the default decree must be voided and a new decree considered. If service was valid, the district court must then evaluate, under a proper NRCP 60(b) analysis, Alan's remaining arguments about custody, child support, and the property division.