CALDERON VS. STIPP (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review: District courts have "broad discretionary powers in determining questions of child custody," and the appellate court "will not disturb the trial court's determinations absent a clear abuse of discretion." Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993). Findings of fact receive deference and are not set aside unless clearly erroneous or unsupported by substantial evidence. Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). The appellate court examines whether the district court's "determination was made for the appropriate reasons." Sims, 109 Nev. at 1148, 865 P.2d at 330. Specific factual findings are "crucial to enforce or modify a custody order and for appellate review." Rivero v. Rivero, 125 Nev. 410, 430, 216 P.3d 213, 227 (2009), overruled in part on other grounds by Romano v. Romano, 138 Nev., Adv. Op. 1 (2022). Modification framework: Under Romano, a court may modify joint or primary physical custody where (1) there has been a substantial change in circumstances affecting the child's welfare, and (2) modification serves the child's best interests. The opinion notes the district court modified custody analyzing only prong (2) under Ellis v. Carucci, 123 Nev. 145, 161 P.3d 239 (2007), the governing law at the time of the evidentiary hearing, before Romano required analysis of both prongs; the court observed that M.S.'s request to live with her father, given her relationships with him, her stepmother, and half-sibling, could be considered a change in circumstances, citing Pena v. Pena, No. 62504, 2014 WL 4804235 (Nev. Sept. 24, 2014). Best-interest weighing: District courts possess broad discretion to weigh each best-interest factor, and each factor need not be given equal weight. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007); Culbertson v. Culbertson, 91 Nev. 230, 233-34, 533 P.2d 768, 770 (1975). The NRS 125C.0035(4) factors are non-exhaustive, and courts should consider other relevant factors. Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015). The appellate court does not reweigh conflicting evidence or witness credibility. Ellis, 123 Nev. at 152, 161 P.3d at 244. Standard of proof: The preponderance-of-the-evidence standard applies to civil matters, including child custody, absent clear legislative intent to the contrary. Mack v. Ashlock, 112 Nev. 1062, 1066, 921 P.2d 1258, 1261 (1996). Application: The district court found domestic violence under the best-interest factor NRS 125C.0035(4)(k) based on the May 2019 and August 2019 incidents, while noting mitigation (M.S.'s active participation, difficulty identifying the primary aggressor, and minor injuries). The court did not invoke the clear-and-convincing standard or the rebuttable presumption of NRS 125C.230, and did not rely on that statute. NRS 125C.230 requires a clear-and-convincing finding of domestic violence to trigger the rebuttable presumption that sole or joint custody by the perpetrator is not in the child's best interest, provides the affected parent an opportunity to rebut it under NRS 125C.230(1), and requires supporting findings under NRS 125C.230(1)(a)-(b). The opinion notes NRS 125C.0035(5), referenced by Mitchell, contains the same language as NRS 125C.230, but the court referred only to NRS 125C.230 because that was the statute relied on by Christina. Because the district court never applied the presumption against her, Christina failed to demonstrate she was aggrieved by any lack of opportunity to rebut it - particularly since she testified about the incidents. The court held a plain reading of NRS 125C.0035(4)(k) does not require a clear-and-convincing standard when analyzing the best-interest factors without invoking the presumption in NRS 125C.0035(5), and Christina provided no authority that domestic-violence allegations must be proven by clear and convincing evidence to be considered under NRS 125C.0035(4)(k). The court declined to consider the argument for lack of cogent argument or relevant authority. Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). Harmless error: Christina could not show that additional findings under NRS 125C.230 would have changed the result. To warrant reversal, an appellant must show that but for the alleged error, a different result might reasonably have been reached. Nguyen v. Boynes, 133 Nev. 229, 235 n.3, 396 P.3d 774, 780 n.3 (2017). The district court's analysis of NRS 125C.0035(4)(a) (M.S.'s wishes, and her sufficient age and capacity to form an intelligent preference, being two years from turning 18; see Harrison v. Harrison, 132 Nev. 564, 376 P.3d 173 (2016)) and NRS 125C.0035(4)(h) (the fractured nature of M.S.'s relationship with Christina, including inappropriate and disparaging language) independently supported the modification. Any failure to apply the NRS 125C.230 framework was therefore harmless. Cf. NRCP 61. Because the findings were supported by substantial evidence and were not clearly erroneous, the district court did not abuse its discretion. The court also rejected Christina's contention that she was prejudiced by the district court's failure to enforce the existing custody order and hold Mitchell in contempt, finding the record showed the district court did not rely on the children's lack of overnights with Christina since August 2019 in modifying custody, and in fact admonished the parties that the lack of overnights was not in the children's best interest.

In plain language

Christina and Mitchell divorced in 2008 and had two children together, M.S. (17 at the time of the opinion) and E.S. (14). This appeal concerned only the physical custody of M.S.; the parents continued to share joint legal custody of both children and joint physical custody of E.S., and those arrangements were not challenged. In August 2019, Mitchell asked the court to let the children decide for themselves whether to spend custodial time at Christina's home ("teenage discretion"), saying the children did not want to go there because of fights with Christina. Christina opposed this and asked the court to hold Mitchell in contempt for keeping the children from her. After several hearings, the court ordered the parents back onto a week-on/week-off schedule and directed that custody exchanges happen at a supervised visitation center called "Donna's House." The center and child-interview reports indicated the children refused to participate in exchanges with Christina. The court then found there was enough reason ("adequate cause") to hold an evidentiary hearing - a trial-like proceeding with testimony - to decide whether custody should change. At that hearing, the court heard testimony from both children, Mitchell, and Christina. Both children said they preferred to live with Mitchell because of turmoil when with Christina. M.S. described two physical fights with Christina - one in May 2019 (Christina allegedly tackled her, pulled her hair, and hit her) and one in August 2019 (Christina allegedly scratched her, pulled her hair, and pushed her). E.S. said he saw and heard parts of these altercations. M.S. also testified about hurtful language Christina used about her, her stepmother, and her half-sibling. The district court decided it was in M.S.'s best interest for Mitchell to become her primary physical custodian, largely because of the conflict between M.S. and Christina. The court found that Christina had engaged in acts of domestic violence against M.S. under one of the "best interest" factors listed in the statute, but it noted the incidents were softened by the fact that M.S. was an active participant, that it was hard to tell who started them, and that any injuries were minor. Importantly, the court did not use the higher "clear and convincing evidence" standard, did not cite the separate statute that creates a legal presumption against giving custody to a domestic-violence perpetrator, and did not apply any such presumption. On appeal, Christina argued the court should have used the clear-and-convincing standard and allowed her to rebut that presumption. The Court of Appeals disagreed. It explained that the district court never applied the domestic-violence presumption against Christina in the first place, so she was not harmed by not being given a chance to rebut it - and she had in fact testified about the incidents. The court also said the ordinary standard for civil child-custody matters is "preponderance of the evidence," not clear and convincing, unless the legislature says otherwise, and Christina cited no authority requiring the higher standard just to consider domestic-violence allegations among the best-interest factors. Finally, the court held that even if the district court had made a mistake about the domestic-violence framework, the error was harmless because the district court gave many other reasons - M.S.'s own wish (at nearly 18) to live with her father, and the fractured relationship between M.S. and Christina - that independently supported the custody change. Because those findings were supported by the evidence, the Court of Appeals affirmed.