BELLISARIO VS. BELLISARIO (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court reviewed the procedural due process challenge de novo under Callie v. Bowling, 123 Nev. 181, 183, 160 P.3d 878, 879 (2007), and concluded that conducting trial on the noticed date did not violate due process where appellant had notice and never sought a continuance. The court rejected appellant's argument that pending criminal charges entitled him to a continuance, noting the absence of supporting authority. On the vexatious litigant order, the court applied the four-factor framework from Jones v. Eighth Judicial District Court, 130 Nev. 493, 496, 330 P.3d 475, 477 (2014), requiring (1) notice and an opportunity to oppose, (2) a record supporting the restrictive order, (3) "substantive findings as to the frivolous or harassing nature of the litigant's actions," and (4) narrowly tailored restrictions. The court found each factor satisfied, including that civil lawsuits filed by appellant against respondent, her attorneys, and two of the minor child's therapists were properly considered because they arose out of the divorce action. On child support, the court reaffirmed the wide discretion afforded district courts but held that imputation of income required predicate findings under NAC 425.125(1) (underemployment or unemployment without good cause) and consideration of the NAC 425.125(2) factors. Because the district court made no such findings, the court reversed under the reasoning of Noble v. Noble, 86 Nev. 459, 464, 470 P.2d 430, 433 (1970), overruled on other grounds by Westgate v. Westgate, 110 Nev. 1377, 887 P.2d 737 (1994), and remanded for sufficient factual findings. On spousal support, reviewed for abuse of discretion under Klabacka v. Nelson, 133 Nev. 164, 178-79, 394 P.3d 940, 952 (2017), the court held that the district court must consider the factors in NRS 125.150(9) before awarding spousal support. Because nothing in the record showed those factors were considered, the spousal support portion of the decree was reversed and remanded for sufficient factual findings. The court rejected appellant's challenge to the specificity of the visitation schedule, noting the order's sufficiency in context and that modification was permitted upon completion of appellant's psychological evaluation. It rejected the challenge to the extension of the temporary protective order, observing that motion practice and a hearing on the TPO occurred between the January 25 hearing and the extension. The challenge to attorney fees and costs was deemed not properly before the court because the district court had not entered a final ruling on fees and costs at the time the notice of appeal was filed.

In plain language

Bradley and Emily Bellisario were married for seven years and have three children. During their divorce proceedings, Bradley - a lawyer who had stopped practicing and whose law license was temporarily suspended - was found by the district court to be a "vexatious litigant," meaning the court restricted his ability to file new documents because of repeated meritless filings and harassing lawsuits. The court also limited the evidence he could present at trial because he did not follow discovery rules. Bradley was incarcerated and not present when the divorce trial took place. The district court heard Emily's evidence and entered a divorce decree, which Bradley appealed. The Nevada Supreme Court rejected most of Bradley's challenges. It held that his due process rights were not violated by the trial proceeding without him, because he had notice of the trial date and never asked the court to postpone it. The court also upheld the vexatious litigant designation, finding that the district court followed the required four-step analysis, that Bradley had filed many meritless motions and harassing lawsuits against Emily, her attorneys, and two therapists treating one of the children, and that the restrictions imposed were narrow. The Supreme Court agreed with Bradley on two issues, however. First, when the district court calculated his child support, it "imputed" income to him - that is, treated him as if he were earning a certain amount even though his law license was suspended - without first finding that he was unemployed or underemployed without good cause and without making the findings required by Nevada Administrative Code 425.125. Second, the district court awarded spousal support to Emily without addressing the factors that NRS 125.150(9) requires it to weigh. The Supreme Court reversed those two portions of the decree and sent the case back to the district court to make the required findings. The rest of the decree, including the custody schedule and the extension of the temporary protective order, was affirmed.