CLARKE VS. WHITE (CHILD CUSTODY) C/W 86069

Statutes cited

Key holdings

Practitioner summary

**Standard of review.** A decision to grant or deny an NRCP 60(b) motion to set aside a judgment is reviewed for abuse of discretion. Cook v. Cook, 112 Nev. 179, 181-82, 912 P.2d 264, 265 (1996); Rodriguez v. Fiesta Palms, LLC, 134 Nev. 654, 656, 428 P.3d 255, 257 (2018). Child custody orders are likewise reviewed for abuse of discretion. Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 284 (Ct. App. 2023). Factual findings are given deference and upheld if not clearly erroneous and supported by substantial evidence. Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). **Setting aside the default decree.** Although the district court's broad discretion "cannot be sustained where there is no competent evidence to justify the court's action" (Lukey v. Thomas, 75 Nev. 20, 22, 333 P.2d 979, 979 (1959)), the policy favoring adjudication on the merits is heightened in domestic relations cases, particularly where custody is at issue (Price v. Dunn, 106 Nev. 100, 105, 787 P.2d 785, 788 (1990)). While the written order provided no supporting explanation beyond granting the NRCP 60(b) motion, the court orally explained its rationale, and a failure to include reasons in the order does not invalidate it "so long as the reasons for the [order] are readily apparent elsewhere in the record and are sufficiently clear to permit meaningful appellate review." Devries v. Gallio, 128 Nev. 706, 710-11, 290 P.3d 260, 263 (2012). The court located the relief within NRCP 60(b)(6)'s catch-all ("any other reason that justifies relief"). Catch-all relief is warranted only in extraordinary circumstances and is unavailable when relief could be sought under other NRCP 60(b) provisions. Vargas v. J Morales, Inc., 138 Nev. 384, 388-89, 510 P.3d 777, 781 (2022). Because the basis — proceeding on the merits in the child's best interest — was available only under NRCP 60(b)(6), and because the need to hear from both parties to determine best interest is paramount (Bluestein v. Bluestein, 131 Nev. 106, 112, 345 P.3d 1044, 1049 (2015)), the circumstances were extraordinary. The court cited Jones v. Jones, 591 S.W.3d 831, 833-34 (Ark. Ct. App. 2019), and Perreira v. Eisenberg, No. 86792-COA, 2024 WL 2783776 (Nev. Ct. App. May 29, 2024). The court also identified an alternative basis under EDCR 5.702(d): Clarke failed to oppose White's motion, so the order is construed to include implied findings that granting the motion is in the child's best interest. **Set-aside is not modification.** Clarke argued the court should have applied the physical-custody modification standard — a substantial change in circumstances plus best interest (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., Adv. Op. 48, 535 P.3d 1167, 1171 (2023)) — and should have analyzed NRS 125C.0035(4) before disturbing the sole-custody award. The court rejected this for lack of supporting authority (Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006)), reasoning that setting aside the default vacated the award so that no custody award remained to modify, citing Comes v. Comes, 178 N.W. 403, 405 (Iowa 1920); Ostling v. Loring, 33 Cal. Rptr. 2d 391, 397 (Ct. App. 1994); and P.H.L. Dev. Corp. v. Smith, 329 S.E.2d 545, 546 (Ga. Ct. App. 1985). **Reconsideration of prior domestic violence.** Clarke invoked Nance v. Ferraro, 134 Nev. 152, 157, 159-60, 418 P.3d 679, 684, 685-86 (Ct. App. 2018), which bars using domestic-violence evidence known at the time of a prior custody order to show a substantial change in circumstances for modification. Because the district court set aside rather than modified the decree, Nance's limitations did not apply. The court further noted the clear and convincing standard "can be satisfied by the victim's testimony alone." Franklin v. Franklin, No. 843834, 2024 WL 3085490, at *2 (Nev. June 20, 2024). **Sufficiency of the domestic violence finding.** White's testimony (knife to the neck, choking, locking her and the child out) plus findings of harassing texts and calls constituted substantial support for the clear-and-convincing finding. Ogawa, 125 Nev. at 668, 221 P.3d at 704. The court declined to reweigh credibility. Castle v. Simmons, 120 Nev. 98, 103, 86 P.3d 1042, 1046 (2004). **Abduction presumption and harmless error.** Clarke argued the court misapplied NRS 200.359(2) — a criminal statute excusing abduction where a joint-custodial parent acted to protect the child or self from domestic violence — to rebut the NRS 125C.0035(7) presumption against custody for a parent who commits abduction. The court held that even assuming error, it was harmless under NRCP 61 and Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010), because the court had independent broad discretion to consider the circumstances of the concealment (Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015)) and conducted a complete NRS 125C.0035(4) best-interest analysis (Kelly v. Kelly, 129 Nev., Adv. Op. 39, 554 P.3d 1147, 1152 (2023)), finding most non-neutral factors favored White. The findings were supported by substantial evidence, and the court would not reweigh credibility. Castle, 120 Nev. at 103, 86 P.3d at 1046.

In plain language

Karyl Clarke and Tanesha White were never married but have a daughter, T.C., born in 2016. After a tumultuous relationship, they separated in April 2020 following an incident on April 28, 2020, in which Clarke allegedly held a butcher knife to White's neck, choked her, took her phone to stop her from calling for help, blocked her from leaving her apartment, and eventually drove off with the apartment keys, leaving White and the child locked outside late at night. The child was wearing only a shirt and underwear. White obtained a temporary protection order (a TPO — a short-term court order meant to protect someone from harm), which gave her temporary custody. A hearing master found that although he did not believe White's specific knife claim, an act or threat of domestic violence had occurred, or that Clarke posed a credible threat, and extended the TPO for six months. White then moved to Ohio with the child. The TPO was later dissolved when White missed a hearing. Meanwhile, Clarke filed a custody complaint but could not find White to serve her, so he served her by publication (giving notice through a public notice rather than in person). When White did not appear, the court entered a default against her, and about a year later entered a default custody decree giving Clarke sole legal and physical custody. In that decree — issued without hearing anything from White — the court found White's domestic violence allegations false. The court also ordered White to produce the child or allowed Clarke to pick the child up with law enforcement. White moved back to Nevada in 2021, and she and Clarke reconnected. Clarke did not actually get physical custody until March 31, 2022, when he picked up T.C. with police help and took her to Ohio. He did not notify the court that he had done so. The day after Clarke took the child, White appeared in the custody case for the first time and asked the court to set aside (undo) the default decree, saying she had not known about the case. The court held hearings, ordered the child returned to White, and set aside the default decree, explaining that resolving custody on the merits — with both parents heard — was in the child's best interest. After an evidentiary hearing, the court issued an amended decree awarding White primary physical custody. The court found White had committed an "act of abduction" by disappearing with the child for about 22 months, which triggered a legal presumption against giving her custody. But the court found White overcame (rebutted) that presumption because she showed by clear and convincing evidence that she left to protect herself and the child from Clarke's domestic violence. The court found White's testimony about the knife incident credible and did not believe Clarke's denial. Clarke appealed. The Court of Appeals affirmed. It held the district court did not abuse its discretion in setting aside the default decree, because the "catch-all" provision of the rule governing relief from judgments allows relief in extraordinary circumstances, and the need to hear from both parents to determine a child's best interest qualified here. The court also rejected Clarke's argument that setting aside the default was the same as "modifying" custody — once the default was set aside, there was no custody award left to modify. Finally, the court held the domestic violence finding was supported by clear and convincing evidence, and that even if the trial court had wrongly cited a criminal statute to explain how White rebutted the abduction presumption, any error was harmless because the court had independent authority and substantial evidence to reach the same result.