BROFMAN VS. FIORE (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals first addressed the scope of the appeal. Brofman's notice of appeal challenged the July 2025 modification order and "all underlying interlocutory and motion orders merged therein," and his opening brief attacked prior orders cited in the modification order. The court held that all but three of the identified prior orders had been resolved in earlier appeals (Brofman v. Fiore, Nos. 83807 & 83865, 2024 WL 655241 (Nev. Feb. 15, 2024); Brofman v. Fiore, Docket No. 86673 (Nev. Jul. 11, 2023); Brofman v. Fiore, No. 86673-COA, 2024 WL 5220168 (Nev. Ct. App. Dec. 24, 2024)), and those appellate orders constitute the law of the case under Tien Fu Hsu v. Cnty. of Clark, 123 Nev. 625, 629-30, 173 P.3d 724, 728 (2007). As to the May 2022 and April 2023 orders, the court held it lacked jurisdiction because they were issued more than 30 days before the notice of appeal and were independently appealable, citing Healy v. Volkswagenwerk Aktiengesellschaft, 103 Nev. 329, 331, 741 P.2d 432, 433 (1987). Brofman's challenge to a November 2024 field-trip order was deemed forfeited because it was not raised before the district court, citing Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). On the merits, the court applied the two-part custody-modification standard: the movant must show "there has been a substantial change in circumstances affecting the welfare of the child" and "the modification would serve the child's best interest," citing Romano v. Romano, 138 Nev. 1, 9, 501 P.3d 980, 986 (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). The standard of review is abuse of discretion, citing Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). "An abuse of discretion occurs when a district court's decision is not supported by substantial evidence or is clearly erroneous," Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018), and substantial evidence is "evidence that a reasonable person may accept as adequate to sustain a judgment," Ellis, 123 Nev. at 149, 161 P.3d at 242. The court held the district court did not abuse its discretion in finding a substantial change in circumstances, pointing to evidence that since the original joint-legal-custody order Brofman indicated he would not coparent and preferred parallel parenting, and that his refusal to cooperate on medical decisions delayed N.B.'s care and escalated conflict requiring substantial judicial intervention. On the award of limited sole legal custody over medical decisions and extracurriculars, the court reiterated that district courts have "broad discretionary powers" to determine custody (Ellis, 123 Nev. at 149, 161 P.3d at 241) and that "the sole consideration of the court is the best interest of the child" (NRS 125C.0035(1)). Substantial evidence - continual required court intervention delaying N.B.'s care and the financial burden of litigation on Fiore - supported awarding one parent limited sole legal custody rather than continuing the court's tie-breaking authority. Addressing Brofman's sufficiency and re-weighing arguments, the court stated it does not reweigh evidence or determine witness credibility, citing Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000), and Ellis, 123 Nev. at 152, 161 P.3d at 244. The court confirmed a district court may rely on its prior findings and conclusions when evaluating modification, citing Nance v. Ferraro, 134 Nev. 152, 159, 418 P.3d 679, 685 (Ct. App. 2018). The court rejected the contention that referencing the current therapist's testimony impermissibly delegated decision-making authority, and rejected the contention that the modification penalized Brofman for complying with court orders. On the joint physical custody designation despite an approximately one-third timeshare, the court applied Rivero v. Rivero, 125 Nev. 410, 425, 216 P.3d 213, 224 (2009), overruled on other grounds by Romano, 138 Nev. at 6, 501 P.3d at 984, recognizing "there must be some flexibility in the timeshare requirement," and Bluestein v. Bluestein, 131 Nev. 106, 112, 345 P.3d 1044, 1048 (2015), which clarified that the 40-percent figure is a guideline, not a requirement, and that "the child's best interest is paramount" and should not be "so rigidly applied that it would preclude joint physical custody when the court has determined in the exercise of its broad discretion that such a custodial designation is in the child's best interest." The court held the timeshare percentage was not so low as to mandate a primary-physical-custody finding and that substantial evidence - both parents conceding N.B. has a close relationship with and enjoys time with each parent - supported the joint physical custody designation. Finally, the court rejected Brofman's bias and reassignment argument, holding he did not demonstrate "a deep-seated favoritism or antagonism that would make fair judgment impossible," citing Canarelli v. Eighth Jud. Dist. Ct., 138 Nev. 104, 107, 506 P.3d 334, 337 (2022), and reiterating that reliance on prior findings is permitted under Nance.

In plain language

Douglas Brofman and Gina Fiore were never married but have one child, N.B., born in 2015. In 2021, the district court entered the original custody order giving both parents joint physical and joint legal custody. Even then, the court observed the parents had a high level of conflict and poor communication that hurt their ability to raise their child together. Between 2021 and 2024, the parents repeatedly could not agree on issues like medical care, schooling, and extracurricular activities, so the court had to step in many times to break ties. In these earlier orders, the court generally found that Brofman was engaging in passive-aggressive behavior, objecting to Fiore's suggestions without a reasonable basis, or acting to frustrate or control Fiore. In 2024, Fiore asked the court to give her sole legal authority over the child's medical care, education, and extracurricular activities, and also asked for primary physical custody. She said Brofman kept refusing to cooperate, which delayed the child's medical care or kept him from playing sports, and that she was the one primarily making sure the child got to appointments and to school on time. Brofman did not file written opposition but hired a lawyer and opposed the request out loud at a hearing. The court held a three-day evidentiary hearing. Both parents blamed the other for the conflict. The child's current therapist testified that Brofman said he would not "coparent" (cooperate jointly) but preferred to "parallel parent," and that in the therapist's opinion the parents could not coparent without extraordinary intervention. Evidence showed the parents' inability to cooperate delayed the child's medical care, including therapy, and caused him to miss out on activities with friends. In July 2025, the court found circumstances had changed enough to justify modifying custody. It gave Fiore limited sole legal custody over the child's medical care and extracurricular activities, but let Brofman keep an equal say over the child's schooling and denied Fiore's request for sole authority over education. The court kept the "joint physical custody" label but changed the schedule so Fiore had more time - a schedule that gave Brofman about 36 percent of the parenting time. On appeal, the Court of Appeals first explained that most of the older orders Brofman tried to challenge had already been decided in earlier appeals (so they were settled under a rule called "law of the case") or were filed too late for the court to have power to review them. The court therefore only reviewed the July 2025 modification order. The court held that the district court did not abuse its discretion. It found there was enough evidence that Brofman's ongoing refusal to cooperate was a substantial change in circumstances and that giving Fiore limited sole legal custody served the child's best interest, in part because repeated court intervention delayed the child's care and cost Fiore money she could have spent on the child. The court explained it does not re-weigh evidence or re-decide who was more credible on appeal, and that a trial court is allowed to rely on its own prior findings. Finally, the court concluded that labeling the arrangement "joint physical custody" was permissible even at roughly a one-third timeshare, because the percentage was not so low as to require a "primary physical custody" label and both parents agreed the child was close to and enjoyed time with each of them. The court affirmed.