CALKINS VS. HUBER (CHILD CUSTODY)

Key holdings

Practitioner summary

The Court of Appeals resolved the appeal on procedural grounds, declining to reach the merits of the remaining arguments beyond the first issue. The court identified two procedural defects. First, the district court prematurely resolved the matter. Calkins filed a pro se motion to modify custody unsupported by points and authorities; Huber opposed with a detailed opposition and declaration and filed a cross-motion for permanent custody. The district court applied the modification standard from Ellis v. Carucci, 123 Nev. 145, 153 P.3d 239 (2007), and resolved the case before Calkins could file a reply to the opposition and before she could oppose the cross-motion. The court considered the matter submitted two days after Huber filed his pleading and entered its order seven days after. Under DCR 13(3), a party has 7 days to respond to an opposition and 14 days to respond to a motion, which did not occur here. Second, after citing Ellis, the district court converted the temporary custody order into a permanent order without an evidentiary hearing at which the parties could present evidence regarding the children's best interests. The district court appeared to reason that because Calkins failed to satisfy the first prong of Ellis - a substantial change of circumstances affecting the welfare of the children - it could enter its order without further proceedings. But it failed to apply Rooney v. Rooney, 109 Nev. 540, 853 P.2d 123 (1993), which requires a district court to hold an evidentiary hearing on a motion to modify custody if the moving party demonstrates "adequate cause" for the hearing, defined as "something more than allegations which, if proven, might permit inferences sufficient to establish grounds for a custody change[]." That threshold determination is the first step in deciding whether a hearing is required. Because the record did not permit the appellate court to determine whether an evidentiary hearing was necessary, the court remanded for the district court to decide the issue in the first instance, citing Ryan's Express Transp. Servs. v. Amador Stage Lines, Inc., 128 Nev. 289, 299, 279 P.3d 166, 172 (2012) ("An appellate court is not particularly well-suited to make factual determinations in the first instance."). The combination of failing to allow adequate time for responsive pleadings and reaching the merits without first deciding whether an evidentiary hearing should be conducted constituted error, warranting reversal and remand.

In plain language

Janea Calkins and Waylon Huber married in 2010 and had twin children two years later. They divorced in Nevada in 2016. As part of their divorce, they agreed to share both legal and physical custody of the children, and Huber agreed that Calkins could temporarily move with the children to Boise, Idaho, for two years so she could finish her education. Later, after a series of events, the district court held an evidentiary hearing in July 2020 and entered an order that temporarily gave Huber sole physical custody and gave Calkins supervised parenting time. As the opinion notes, that temporary order did not set a hearing date or specify an event that would make it permanent, though the court said it would revisit the arrangement if Calkins moved back to Nevada. In March 2021, Calkins - representing herself without a lawyer (pro se) - filed a motion asking that the children be returned to her custody in Idaho. In May 2021, Huber filed an opposition to her motion and also filed a cross-motion (his own request for relief) asking for permanent custody. Just days later, without holding an evidentiary hearing, the district court denied Calkins's motion and granted Huber's request, converting the temporary custody order into a permanent one. On appeal, the Court of Appeals decided it did not need to address most of the issues Calkins raised. It focused on one problem: the district court did not follow the proper procedure before entering a permanent custody order. The court had ruled too quickly - it treated the matter as ready for decision only two days after Huber filed his papers and entered its order just seven days after Huber filed, even though the applicable court rule allows a party 7 days to respond to an opposition and 14 days to respond to a motion. That meant Calkins did not get her chance to reply to Huber's opposition or to oppose his cross-motion for permanent custody. The Court of Appeals also found that the district court skipped a required step before making custody permanent. The lower court applied the standard from a prior Nevada case for modifying custody and concluded Calkins had not shown a substantial change in circumstances - but it did not first apply the threshold test from another case that governs whether an evidentiary hearing is needed. Because the district court did not hold a hearing that would have let both parties present evidence about what is best for the children, the Court of Appeals said it could not tell whether such a hearing was necessary. It sent the case back so the district court, which is familiar with the parties, could decide that question first. The appellate court reversed the district court's judgment and returned the case for further proceedings consistent with its order.