BERTUCCINI, III VS. ESPOSITO (CHILD CUSTODY)

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's decision to deny a motion to modify custody without first conducting an evidentiary hearing for an abuse of discretion, citing Bautista v. Picone, 134 Nev. 334, 338, 419 P.3d 157, 160 (2018). The doctrinal framework derives from Myers v. Haskins, 138 Nev., Adv. Op. 51, 513 P.3d 527 (Ct. App. 2022), which addressed the prima-facie-case prong of the adequate cause standard for determining whether an evidentiary hearing is required to resolve a motion to modify child custody. Under Myers, a district court may generally only consider "the properly alleged facts in the movant's verified pleadings, affidavits, or declarations" and "must accept the movant's specific allegations as true" when determining whether the movant has established a prima facie case for modification requiring an evidentiary hearing. The court also invoked Myers's holding - consistent with Davis v. Ewalefo, 131 Nev. 445, 452, 352 P.3d 1139, 1143 (2015) - that district courts must make specific findings and provide adequate explanations for their custody determinations when denying a motion to modify custody without holding an evidentiary hearing. Per Myers, such findings "aid appellate review by ensuring the court made its determination for appropriate reasons" and "help parents understand why the motion was decided the way that it was because it may affect future motions to modify custody." Applying that framework, the court observed that the district court found the mere passage of time insufficient to establish a substantial change in circumstances affecting the child's welfare, but the order failed to identify or address the other allegations in Bertuccini's motion - issues related to the child's schooling and emotional needs; the parties' work schedules and the impact on their ability to care for the child; the parties' ability to cooperate and coparent; and the child's relationship with her step-sibling. Because those allegations are presumed true under Myers and the district court's order did not address them, the court concluded that the district court abused its discretion in denying the motion without adequate explanation. The court noted in a footnote that the district court did not have the benefit of Myers when it heard the motion, but found the order inconsistent with Myers and current caselaw, and directed the district court to consider and apply the holdings in Myers on remand. The court reversed and remanded for further findings.

In plain language

Paul Bertuccini and Lisa Esposito have one child together, born in 2011. They divorced in 2014 and agreed to share joint legal custody, with Esposito having primary physical custody. The parenting-time arrangement was modified in 2015 and 2016, ultimately giving Bertuccini roughly ten days a month with the child. In 2021, Bertuccini asked the court for joint physical custody. He argued that circumstances had changed enough to justify revisiting custody. Specifically, he claimed: (1) the child, now approaching puberty and middle school, had changed mental and emotional needs; (2) both parents' work schedules had changed, leaving Esposito with less time and him with more; (3) the parents continued to struggle with custody exchanges, coparenting, school decisions, and extracurricular activities; and (4) Esposito was, in his view, encouraging a negative relationship between the child, Bertuccini, and the child's step-sister. Esposito disagreed with these factual claims and argued that merely more time passing was not enough to require a change in custody. After the written filings and a hearing that did not include the presentation of evidence, the district court issued a six-page order denying the motion. The court reasoned that "the passage of time and/or the age of the child are not factors creating a substantial change of circumstances," and that Bertuccini therefore had not made the preliminary showing (called a "prima facie case") needed to trigger a full hearing where evidence would be presented. The Court of Appeals disagreed with how the district court handled the motion. It found that the lower court focused only on the passage-of-time point and never addressed the several other issues Bertuccini raised - the child's schooling and emotional needs, the changed work schedules, the parents' ability to cooperate, and the child's relationship with her step-sibling. Under recent Nevada caselaw, when deciding whether to hold an evidentiary hearing, a court is generally supposed to accept the moving parent's specific factual allegations as true and must explain its reasoning. Because the district court did not address these other allegations, the Court of Appeals concluded it had abused its discretion (used its authority improperly) and had not given an adequate explanation. The Court of Appeals reversed the denial and sent the case back ("remanded") so the district court can make more complete findings, and it directed the lower court to apply the guidance from a case called Myers v. Haskins in any further proceedings.