BROFMAN VS. FIORE (CHILD CUSTODY) C/W 83807

Statutes cited

Key holdings

Practitioner summary

Standard of review. The court reviewed the custody decision, the relocation ruling, the school-choice determination, the imputation of income for child support, the evidentiary ruling, the denial of a new trial, the attorney fees award, and the sanction all for abuse of discretion, citing Rivero v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009); Arcella v. Arcella, 133 Nev. 868, 407 P.3d 341 (2017); Wallace v. Wallace, 112 Nev. 1015, 922 P.2d 541 (1996); Daisy Tr. v. Wells Fargo Bank, N.A., 135 Nev. 230, 445 P.3d 846 (2019); Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008); Albios v. Horizon Cmtys., Inc., 122 Nev. 409, 132 P.3d 1022 (2006); and Young v. Johnny Ribeiro Bldg., Inc., 106 Nev. 88, 787 P.2d 777 (1990). Relocation. Applying NRS 125C.007(1), the court reiterated the three threshold showings a relocating parent must make: (1) a sensible, good faith reason for the move not designed to deprive the other parent of time with the child; (2) that the move serves the child's best interest; and (3) that the child and the relocating parent will benefit. The district court's findings that Brofman lacked a post-move plan, shifted his stated reasons for moving, and had no job offer supported denial. Evidentiary ruling. Admission of Fiore's text messages was not an abuse of discretion under Daisy Trust, where Brofman did not pre-hearing-object, Fiore authenticated the messages, and Brofman could not show fraud. School choice. The court applied the non-exhaustive Arcella factors, 133 Nev. at 872-73, 407 P.3d at 346, and held that, given Brofman's failure to present evidence or file an offered supplemental brief on school choice, the district court permissibly decided the issue on the limited record. The court rejected, as belied by the record, Brofman's contention that the trial court relied on Fiore's brief without an attached affidavit. Child support and imputed income. Citing Minnear v. Minnear, 107 Nev. 495, 814 P.2d 85 (1991), the court restated the rule that when evidence of willful underemployment preponderates, a presumption arises that underemployment is for the purpose of avoiding support, and the burden shifts to the supporting parent. The record - Brofman's ability to meet $4,514.31 in claimed monthly expenses during his claimed unemployment and his prior earnings comparable to Fiore's - supported imputation. The court declined to order arrears for a period during which the district court had previously ordered neither party to pay support. Reimbursement claim (loans). The court vacated the portion of the custody order denying Brofman's reimbursement request. The district court had refused to hear evidence on the ground that the claim was inadequately pleaded and time-barred. The Supreme Court held the pleading was sufficient under W. States Constr., Inc. v. Michoff, 108 Nev. 931, 840 P.2d 1220 (1992), to put Fiore on notice of the claim, and that because no evidence was permitted regarding the specific debts at issue, the record could not support a limitations bar. Remand was ordered for the district court to consider the financial claims. Postjudgment motions. The denial of the new-trial motion was upheld under Lioce because the alleged fraudulent text messages were immaterial to the district court's decision. The attorney fees award to Fiore for opposing the new-trial motion was upheld under Albios on prevailing-party grounds and the frivolous nature of the motion. The sanction for Brofman's refusal to sign passport documents was upheld under Young, given the parties' agreement that the Parenting Coordinator had "the general authority to resolve disputes arising from the areas in which the parents share joint legal custody." Ancillary matters. The court denied Brofman's motion to consolidate with Docket No. 86673 and denied Fiore's motion for a limited remand.

In plain language

Douglas Brofman and Gina Fiore share one child. Fiore asked the district court to establish a custody arrangement, and Brofman counter-asked for permission to move with the child to Ohio. After hearing evidence, the district court refused to let Brofman relocate, gave both parents joint legal and physical custody, decided where the child would go to school, and set child support. Brofman then filed a series of motions challenging those decisions, including a motion for a new trial. The district court denied those motions, ordered Brofman to pay Fiore's attorney fees on the new-trial motion, and sanctioned him for not signing paperwork needed for the child's passport. Brofman appealed. The Nevada Supreme Court agreed with most of what the district court did. On relocation, the court held that Brofman had not shown a sensible plan, a consistent reason for moving, or a job lined up in Ohio, so denying the move was within the trial court's discretion. On school choice, the court noted Brofman had focused on relocating and did not submit evidence about schools even when given a chance to file a supplemental brief, so the trial court had to work with limited information and reasonably applied the governing factors. On child support, the court held it was permissible to impute income to Brofman because the record showed he was meeting his monthly expenses during his claimed unemployment and had previously earned an income similar to Fiore's. The court also upheld the admission of Fiore's text messages at the hearing and rejected Brofman's challenges to the postjudgment rulings, including the fees award and the sanction. The court reversed course on one issue. Brofman had asked to be reimbursed for loans he said he made to Fiore. The district court refused to hear that request, saying it was not properly pleaded and was barred by the statute of limitations. The Supreme Court concluded that Brofman's pleading was good enough to put Fiore on notice of the claim and that, because the district court did not let Brofman put on any evidence about which debts he meant, the record was too thin to say the limitations period barred the claim. The court vacated that part of the order and sent the case back for the district court to consider Brofman's financial claims.