BROFMAN VS. FIORE (CHILD CUSTODY) C/W 83865

Statutes cited

Key holdings

Practitioner summary

Custody and relocation rulings are reviewed for abuse of discretion. Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009). Applying the relocation framework of NRS 125C.007(1), the Court held the record supported the district court's findings that Brofman failed to show (1) a sensible, good-faith reason for the move, (2) that the move served the child's best interest, and (3) that he and the child would benefit, given his lack of a post-relocation plan, his shifting rationales, and the absence of a job offer. The evidentiary challenge to Fiore's text messages also failed under abuse-of-discretion review, see Daisy Tr. v. Wells Fargo Bank, N.A., 135 Nev. 230, 236, 445 P.3d 846, 850 (2019), because Brofman did not pre-object, Fiore authenticated the messages, and Brofman did not establish fraud. On school choice, reviewed for abuse of discretion under Arcella v. Arcella, 133 Nev. 868, 870, 407 P.3d 341, 344 (2017), the district court applied the non-exhaustive Arcella factors, 133 Nev. at 872-73, 407 P.3d at 346, on the limited record Brofman left it after declining to submit a supplemental brief. The Court found no abuse of discretion. On child support, the Court applied the Minnear willful-underemployment framework: when evidence of willful underemployment preponderates, a presumption arises that the underemployment is to avoid support, and the burden shifts to the supporting parent. Minnear v. Minnear, 107 Nev. 495, 498, 814 P.2d 85, 86-87 (1991). The record — Brofman's ability to meet $4,514.31 in claimed monthly expenses while purportedly unemployed and his prior earnings comparable to Fiore's — supported imputation. Review is for abuse of discretion. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). The Court also rejected Brofman's request for arrears predating the support order, noting the district court had previously ordered neither party to pay support during that period. The Court vacated as to Brofman's claim for reimbursement of alleged loans to Fiore. The district court had refused to hear the claim on pleading-adequacy and limitations grounds. Applying the liberal pleading standard from W. States Constr., Inc. v. Michoff, 108 Nev. 931, 936, 840 P.2d 1220, 1223 (1992), the Court held Brofman's pleading sufficed to put Fiore on notice. Because the district court did not allow Brofman to submit evidence or argument on the debts, the record could not support a statute-of-limitations bar. Remand was ordered for consideration of the financial claims. The Court affirmed the postjudgment orders. The new-trial denial was not an abuse of discretion under Lioce v. Cohen, 124 Nev. 1, 20, 174 P.3d 970, 982 (2008), because the motion rested on text messages the district court found immaterial. The attorney-fees award was sustained under Albios v. Horizon Cmtys., Inc., 122 Nev. 409, 417, 132 P.3d 1022, 1027-28 (2006), Fiore being the prevailing party in opposing what the district court treated as a frivolous motion. The sanction for noncompliance with the Parenting Coordinator's passport-signing order was sustained under Young v. Johnny Ribeiro Bldg., Inc., 106 Nev. 88, 92, 787 P.2d 777, 779 (1990), because the parties had agreed the Parenting Coordinator would "have the general authority to resolve disputes arising from the areas in which the parents share joint legal custody."

In plain language

Douglas Brofman and Gina Fiore share one child. Fiore asked the family court to establish a custody arrangement, and Brofman responded by asking to relocate with the child to Ohio. After an evidentiary hearing, the district court denied the relocation request, awarded the parents joint legal and physical custody, decided where the child would attend school, and set child support. Brofman then filed several postjudgment motions, including a motion for a new trial. The district court denied those motions, awarded Fiore her attorney fees, and sanctioned Brofman for not complying with a Parenting Coordinator's order regarding the child's passport. The Nevada Supreme Court agreed with most of what the district court did. It held that the district court reasonably concluded Brofman had not shown a sensible plan or good-faith reason for moving — he had no job lined up in Ohio, no clear post-move plan, and his stated reasons for wanting to move kept changing. The Court also upheld the school-choice decision, noting that Brofman, who was focused on his relocation request, did not submit evidence or a supplemental brief on schools even when the district court invited him to do so. On child support, the Court agreed the district court could "impute" income to Brofman — that is, treat him as if he were earning what he could earn — because the evidence suggested he was voluntarily underemployed. The Court also upheld the denial of a new trial, the attorney-fees award against Brofman, and the sanction for not signing the child's passport paperwork. The Court parted ways with the district court on one point: Brofman's claim that Fiore should reimburse him for loans he said he had made to her. The district court refused to hear that issue, 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 the record was too undeveloped to determine whether the statute of limitations actually barred the debts. The Court therefore sent that one issue back to the district court for further proceedings, while leaving the rest of the rulings in place.