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

Statutes cited

Key holdings

Practitioner summary

Appellate jurisdiction. The court reiterated that it has jurisdiction only where an appeal is authorized by statute or court rule, citing Brown v. MHC Stagecoach, LLC, 129 Nev. 343, 345, 301 P.3d 850, 851 (2013). Because the district court never entered a written order resolving Brofman's counterclaim for repayment of loans, see Div. of Child & Family Servs. v. Eighth Judicial Dist. Court, 120 Nev. 445, 454, 92 P.3d 1239, 1245 (2004), no final judgment existed under Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000). Accordingly, NRAP 3A(b)(1) supplied no jurisdiction over the child support portion of the decree, and NRAP 3A(b)(8) supplied no jurisdiction over any claimed "special order after final judgment," since "in the absence of a final judgment, there can be no special order entered after final judgment." The court further held, citing Gumm v. Mainor, 118 Nev. 912, 920, 59 P.3d 1220, 1225 (2002), that the make-up parenting time portion of the September 20 order merely enforced the decree and did not alter the parties' rights, and thus could not qualify as a special order in any event. The custody portion of the decree, however, was appealable under NRAP 3A(b)(7). Recharacterization of motions. Although the October 20 order denied what Brofman styled a request for an "injunction" - ordinarily appealable under NRAP 3A(b)(3) - the court construed the motion by its substance as a request for attorney fees and costs as a sanction (see EDCR 7.60(b)) and for a pre-judgment writ of attachment (see NRS 31.013(8)), citing State Farm Mut. Auto. Ins. Co. v. Wharton, 88 Nev. 183, 186, 495 P.2d 359, 361 (1972). So construed, the denial was not appealable, and that portion of the appeal was dismissed. The entire appeal in Docket No. 83865-COA (the November 1 orders addressing the child's passport, the parenting coordinator's fee reallocation, sole legal custody over medical decisions, and attorney fees) was dismissed on the same jurisdictional grounds. A footnote observes, citing Consol. Generator-Nev., Inc. v. Cummins Engine Co., 114 Nev. 1304, 1312, 971 P.2d 1251, 1256 (1998), that interlocutory orders are reviewable in an appeal from an eventual final judgment. Evidentiary stipulations and the appellate record. Reviewing custody determinations for abuse of discretion under Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007), and evidentiary rulings for abuse of discretion under Abid v. Abid, 133 Nev. 770, 772, 406 P.3d 476, 478 (2017), the court held Brofman waived any challenge to the IME reports' admissibility by stipulating to their admission, citing Second Baptist Church of Reno v. Mount Zion Baptist Church, 86 Nev. 164, 172, 466 P.2d 212, 217 (1970), and Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). In a footnote, the court characterized the stipulation as a strategic decision that does not provide a basis for relief, citing United States v. Mezzanatto, 513 U.S. 196, 203 (1995), and McCurry ex rel. Turner v. Adventist Health Sys./Sunbelt, Inc., 298 F.3d 586, 593 (6th Cir. 2002), and noted the district court's "wide discretion" to limit trial length under Young v. Nev. Title Co., 103 Nev. 436, 441, 744 P.2d 902, 904 (1987). Because Brofman failed to provide trial transcripts, the court repeatedly applied Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007), presuming missing materials support the district court's decision; deference to factual findings was grounded in Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). School choice and due process. The court rejected Fiore's contention that school choice should have been resolved at trial, because Brofman lacked notice that Fiore would seek to change the prior home-schooling arrangement; deciding the issue at trial would have raised due process concerns under Callie v. Bowling, 123 Nev. 181, 183, 160 P.3d 878, 879 (2007), and Micone v. Micone, 132 Nev. 156, 159, 368 P.3d 1195, 1197 (2016). The post-trial memorandum procedure supplied notice and an opportunity to be heard. Brofman's evidentiary-hearing argument was waived under Old Aztec Mine because he never requested a hearing below; the court also noted the parties' unsworn declarations were permissible under NRS 53.045, cf. Myers v. Haskins, 138 Nev., Adv. Op. 51, 513 P.3d 527, 534 (Ct. App. 2022). A footnote rejected application of the adequate-cause standard from Rooney v. Rooney, 109 Nev. 540, 853 P.2d 123 (as cited in the order), because that standard governs motions to modify custody, not initial custody determinations. New trial and reconsideration. Reviewing the NRCP 59 denial for abuse of discretion under Edwards Indus., Inc. v. DTE/BTE, Inc., 112 Nev. 1025, 1036, 923 P.2d 569, 576 (1996), the court held that even assuming the alleged text-message improprieties implicated NRCP 59(a)(1) grounds, Brofman failed to show prejudice materially affecting his substantial rights, see Pizarro-Ortega v. Cervantes-Lopez, 133 Nev. 261, 263-64, 396 P.3d 783, 786 (2017). Under Monahan v. Hogan, 138 Nev., Adv. Op. 7, 507 P.3d 588, 589-90 (Ct. App. 2022), all three subparts of NRS 125C.007(1)'s threshold test must be satisfied before the NRS 125C.007(2) relocation factors are reached; the district court found Brofman satisfied none, and only one finding involved a text message. The court also rejected the claim that oral argument was denied, noting the district court's "wide discretion to control the conduct of proceedings pending before [it]," Div. of Child & Family Servs., 120 Nev. at 453, 92 P.3d at 1244, and its authority under EDCR 2.23(c) to decide motions without oral argument (with a footnote explaining that the 2022 amendments to Part V of the EDCR, including EDCR 5.101 and EDCR 5.702(a), postdated the ruling). On reconsideration, reviewed under AA Primo Builders, LLC v. Washington, 126 Nev. 578, 589, 245 P.3d 1190, 1197 (2010), and framed by Masonry & Tile Contractors Ass'n of S. Nev. v. Jolley, Urga & Wirth, Ltd., 113 Nev. 737, 741, 941 P.2d 486, 489 (1997), the court held that NRS 125C.007 does not govern school-choice issues - it applies when a parent petitions to relocate "outside of this State or to a place within this State that is at such a distance that would substantially impair the ability of the other parent to maintain a meaningful relationship with the child," see NRS 125C.0065(1)(b) - and again applied the Cuzze presumption to the missing transcripts.

In plain language

Douglas Brofman and Gina Fiore were never married but share a child born in 2015. In 2019, Fiore asked the family court to award joint legal and physical custody with no child support owed by either parent. Brofman countered by seeking joint legal custody, primary physical custody, child support, permission to move with the child to Cleveland, Ohio, and repayment of loans he said he had made to Fiore. After a one-and-a-half-day trial, the district court denied Brofman's request to relocate, awarded the parties joint legal and physical custody, decided the child would attend the school Fiore was zoned for, and ordered Fiore to pay child support to Brofman. The parties then litigated a series of additional disputes, which the court resolved in orders entered in September, October, and November 2021. Brofman appealed the decree and all of these orders. A large part of the Court of Appeals' decision turns on a technical but important concept: appellate jurisdiction, meaning the court's legal authority to hear an appeal at all. In Nevada, an appeal is allowed only when a statute or court rule authorizes it. One of the most common bases is an appeal from a "final judgment" - a decision that resolves everything in the case. Here, the district court had never entered a written order resolving Brofman's counterclaim seeking repayment of loans, so there was no final judgment. Because of that, the Court of Appeals held it had no jurisdiction to review the child support portion of the decree, the make-up parenting time portion of the September 20 order, the denial of Brofman's request for attorney fees and a pre-judgment writ of attachment (an order securing property before judgment) in the October 20 order, or any of the November 1 orders. Those parts of the appeals were dismissed. The court noted in a footnote that once a final judgment is entered, Brofman may appeal from it and challenge these interim decisions at that time. The custody portion of the decree, however, was appealable under a specific rule allowing appeals from orders finally establishing custody of minor children, so the court reached the merits of Brofman's custody-related arguments. First, Brofman argued the district court should not have admitted reports from the parties' independent medical examinations. But his own trial lawyer had agreed (stipulated) to their admission, and the court held that this agreement waived any challenge on appeal. The court also noted that stipulating to evidence for strategic reasons - here, because there was not enough time for the expert to testify at the short trial - is a strategic decision that does not entitle a party to relief. And because Brofman did not give the appellate court the trial transcript where the reports were apparently discussed, the court applied its usual rule of presuming that missing materials support the lower court's decision. Second, Brofman argued that the school-choice issue should not have been decided based on written memoranda without a live evidentiary hearing. The court explained the unusual posture: Fiore had not given Brofman notice before trial that she would seek to change the parties' prior home-schooling arrangement, so the district court could not fairly have decided school choice at trial itself. Instead, the district court let Brofman file a memorandum on the issue and Fiore a response, which gave him notice and a chance to be heard. The Court of Appeals held that Brofman waived his complaint about the lack of an evidentiary hearing because he never asked for one below. It also noted that the parties' memoranda were supported by unsworn declarations, which Nevada law allows in place of sworn affidavits, and that the district court also relied on trial evidence - which, again, Brofman had not provided in transcript form. The custody and support decree was affirmed in its entirety. Third, the court affirmed the denial of Brofman's motion for a new trial. Brofman claimed Fiore introduced misleading or fraudulent text messages at trial, but the court held that even assuming his arguments were correct, he had not shown prejudice materially affecting his substantial rights: the district court denied relocation because Brofman failed all three parts of the threshold relocation test, and only one finding involved a text message. The court also rejected Brofman's claim that he was denied oral argument on the motion (the transcript showed he was allowed to argue) and his argument that the school-choice decision required a full relocation analysis, since the relocation statute applies to moves out of state or far enough away to impair the other parent's relationship with the child - not to choosing a school within Las Vegas.