COSNER VS. COSNER (CHILD CUSTODY)

Key holdings

Practitioner summary

The court determined the effect a trial court must give to a master's report under NRCP 53. Although NRCP 53(e)(2) requires a court in a non-jury action to accept a master's findings of fact unless clearly erroneous, the court held that the award of custody is a legal conclusion resulting from the facts, not itself a finding of fact. Relying on the reasoning in Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (that the lower court can abuse its discretion in concluding where the children's best interests lie), the court reasoned that the custody determination is a conclusion of law. The court held that the constitutional power to decide child custody is vested in the duly constituted judge and may not be delegated to a master; a master's attempt to determine custody is advisory only, and the trial judge may disregard it (citing Rea v. Rea, 195 Ore. 252, 245 P.2d 884; Bowler v. Bowler, 351 Mich. 398, 88 N.W.2d 505; Prouty v. Prouty, 16 Cal. 2d 190, 105 P.2d 295). NRCP 53 does not authorize delegation of the custody adjudication. The court applied the presumption on appeal that the trial court properly exercised its discretion in determining the children's best interest. Because the trial court had independent jurisdiction to adjudicate custody, there was evidence supporting the divided-custody determination, and no abuse of discretion was shown, the judgment was affirmed.

In plain language

In this divorce case, the parties agreed to have a "master" (a court-appointed helper who hears evidence and makes recommendations) decide the issues. The master recommended that the husband get the divorce and that the mother get full custody of the two daughters (ages 12 and 10). The trial judge accepted the divorce and the finding that both parents were fit, but rejected full custody to the mother. Instead the judge split custody: the children would live with the father during the school year and with the mother during summers, with shared holidays. The mother appealed, arguing the judge was required to accept the master's custody recommendation because, under the court rules, a master's findings of fact must be accepted unless "clearly erroneous." The Nevada Supreme Court affirmed the divided-custody order. It explained that deciding who should have custody is not a simple "finding of fact"; it is a legal conclusion about what serves the children's best interest, drawn from the facts. While the master could find the underlying facts (such as that both parents are fit), the ultimate decision about custody belongs to the judge and cannot be delegated to a master. A master's custody recommendation is only advisory, and the judge is free to disregard it. Because the trial court had jurisdiction to decide custody, there was evidence supporting the divided-custody arrangement, and there was no abuse of discretion, the judgment stood.