BRYANT VS. SORGET (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review. Custody determinations are reviewed for abuse of discretion, Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007), and "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). Factual findings stand if supported by substantial evidence, Ellis, 123 Nev. at 149, 161 P.3d at 242, and the appellate court presumes the district court properly exercised its discretion in determining the child's best interest, Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). The sole consideration in a custody determination is the best interest of the child. NRS 125C.0035(1). Custody modification. Under Romano v. Romano, 138 Nev. 1, 5, 501 P.3d 980, 983 (2022), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev. 401, 404, 535 P.3d 1167, 1171 (2023), the movant must show (1) a substantial change in circumstances affecting the welfare of the child and (2) that the child's best interest is served by the modification. The court of appeals held the district court's finding that Sorget's relocation back to Nevada constituted a substantial change was supported by substantial evidence, citing Ellis (change in circumstances of the child or family unit as a whole) and Hayes v. Gallacher, 115 Nev. 1, 7, 972 P.2d 1138, 1141 (1999) (a party's relocation can constitute a substantial change warranting reexamination of custody). In a footnote, the court rejected the argument that Sorget was required to establish she had used all custodial time available under the prior order before relying on her relocation, "given that her presence in Nevada with the child would make the exercise of custodial time far easier." On best interest, the district court weighed the NRS 125C.0035(4) factors and found that "[t]he level of conflict between the parents," "[t]he ability of the parents to cooperate to meet the needs of the child," and "[t]he physical, developmental and emotional needs of the child" - NRS 125C.0035(4)(d), (e), (g) - favored joint physical custody, with the remaining factors not applicable or neutral, concluding S.B. "will benefit from having the ability to maintain substantial and regular contact with both of her parents." The court of appeals declined to reweigh evidence or credibility, citing Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009); Roggen v. Roggen, 96 Nev. 687, 689, 615 P.2d 250, 251 (1980); and Morrison v. Rayen Inv., Inc., 97 Nev. 58, 624 P.2d 11 (1981). Bryant's judicial-notice argument regarding Sorget's separate custody action with Tyler Austin failed because Austin testified at the hearing and the district court considered - but was not persuaded by - that evidence, finding Bryant and Austin conflated their respective disagreements with Sorget and that Bryant was more responsible for the parties' conflict. Child support. Child support orders are reviewed for abuse of discretion, Edgington v. Edgington, 119 Nev. 577, 588, 80 P.3d 1282, 1290 (2003), with underlying factual findings upheld if supported by substantial evidence, Miller v. Miller, 134 Nev. 120, 125, 412 P.3d 1081, 1085 (2018), and credibility determinations left to the district court, Ellis, 123 Nev. at 152, 161 P.3d at 244. Courts may impute income to an obligor who is underemployed or unemployed without good cause, NAC 425.125; Rosenbaum v. Rosenbaum, 86 Nev. 550, 554, 471 P.2d 254, 256-57 (1970), with the key issue being the good faith of the parent. The district court credited Sorget's testimony that caring for the children in her household - including a child with cerebral palsy among other special needs - rendered her unable to work outside the home, supplying good cause not to impute income. On the deviation from the guideline amount: a support order "must be based on the obligor's earnings, income and other evidence of ability to pay," with a rebuttable presumption that the NAC Chapter 425 guidelines meet the child's basic needs, NAC 425.100(1), (2). A deviating court must set forth findings of fact for the deviation and the guideline amount, NRS 125B.080(6); NAC 425.115; Jackson v. Jackson, 111 Nev. 1551, 1554, 907 P.2d 990, 992 (1995); failure to do so is reversible error, Anastassatos v. Anastassatos, 112 Nev. 317, 321, 913 P.2d 652, 654 (1996); NAC 425.150(1). The district court's findings sufficed: it found Bryant earns $7,498.37 per month, calculated the guideline obligation at $1,080 per month under NAC 425.115(3), and adjusted downward to $500 based on the "relative income of both households" and Sorget's "legal responsibility to support her other two children." The award was supported by substantial evidence. Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004). Finally, Sorget's appellate contention that she is no longer with John and that support must be recalculated was not considered because it was not raised below. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981); Ryan's Express Transp. Servs., Inc. v. Amador Stage Lines, Inc., 128 Nev. 289, 299, 279 P.3d 166, 172 (2012). The court noted the contention may be raised in the district court as a possible basis to modify support prospectively, citing Romano, 138 Nev. at 7, 501 P.3d at 985.

In plain language

Nick Bryant and Megan Sorget were never married but share one child, S.B., born in 2013. From 2015 to 2021 they shared custody equally under an agreed court order. In December 2020, Sorget asked the court for permission to move to Michigan with S.B. to live with her husband; the court said no. Bryant was then given primary physical custody, and Sorget received summer and holiday time plus the option of ten additional days per month in Las Vegas with advance notice. Sorget moved to Michigan anyway (without S.B.), divorced her husband in February 2024, and moved back to Nevada in March 2024. Once back in Nevada, the parents could not agree on a new schedule. Bryant asked the court to adjust the timeshare while keeping him as the primary custodian; Sorget asked to return to the equal, joint custody schedule the parties had used before she left. After a temporary week-on/week-off schedule and an evidentiary hearing - a trial-like proceeding where witnesses testify under oath - the district court sided with Sorget. It found that her return to Nevada was a "substantial change in circumstances" (the legal trigger required before a court can revisit custody) and that joint physical custody was in S.B.'s best interest, pointing to factors such as the level of conflict between the parents, their ability to cooperate, and the child's developmental and emotional needs. The court also recalculated child support: because Bryant earns about $7,498 per month and Sorget was not working, the standard formula would have set his obligation at $1,080 per month, but the court reduced it to $500 per month after considering Sorget's household income of roughly $10,000 per month (supplied by her ex-husband, with whom she had reconciled) and her responsibility for her other two children. On appeal, the Nevada Court of Appeals upheld everything. It explained that appellate courts do not second-guess a trial judge's weighing of the evidence or decisions about which witnesses to believe; they ask only whether the findings are supported by "substantial evidence" - evidence a reasonable person could accept. The court found the record supported the conclusion that Sorget's return to Nevada changed circumstances in ways affecting S.B.'s welfare (more frequent contact, more availability for daily routines) and that the best-interest findings were adequately supported. On child support, the court held that Sorget's credible testimony - that caring for S.B., her two other children (one with cerebral palsy and other special needs), and her fiancé's five children left her unable to work outside the home - gave the district court good cause not to attribute pretend income to her, and that the district court adequately explained why it lowered Bryant's payment below the guideline amount. Sorget's claim on appeal that she is no longer with her ex-husband, which apparently arose after the hearing, was not considered because it was never raised in the district court, though the court noted she may raise it there as a possible basis to modify support going forward.