CRISTOS VS. TOLAGSON (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review: After a bench trial, the court reviews legal conclusions de novo and upholds factual findings supported by substantial evidence, citing Vegas United Inv. Series 105, Inc. v. Celtic Bank Corp., 135 Nev. 456, 458-59, 453 P.3d 1229, 1231 (2019). Evidentiary rulings are reviewed for abuse of discretion (Abid v. Abid, 133 Nev. 770, 772, 406 P.3d 476, 478 (2017)), and claims of error in the admission of evidence turn on whether the error substantially affected the appellant's rights (NRS 47.040(1)(a); Hallmark v. Eldridge, 124 Nev. 492, 505, 189 P.3d 646, 654 (2008)). Child custody decisions are reviewed for abuse of discretion (Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996)), with an abuse occurring when the decision is clearly erroneous (Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018)), and determinations supported by substantial evidence will not be set aside (Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007)). Evidentiary arguments (nolo contendere plea): Although NRS 48.125(2) provides that evidence of a nolo contendere plea "is not admissible in a civil or criminal proceeding involving the person who made the plea," records related to the plea and conviction were not formally admitted, and Jordan did not object below. The argument was therefore waived under Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). Plain-error review is discretionary and Jordan failed to argue plain error (City of Las Vegas v. Eighth Judicial Dist. Court, 133 Nev. 658, 660, 405 P.3d 110, 112 (2017); Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006)). On the merits, the court declined to reweigh credibility (Castle v. Simmons, 120 Nev. 98, 103, 86 P.3d 1042, 1046 (2004); Quintero v. McDonald, 116 Nev. 1181, 1183-84, 14 P.3d 522, 523-24 (2000)), and found substantial evidence supported the district court's findings, so no substantial rights were affected. Child dependency case / issue preclusion: Jordan did not object below and did not cogently argue the point (Old Aztec Mine; Edwards). On the merits, the court applied the four-element issue-preclusion test from Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1055, 194 P.3d 709, 713 (2008), and held Jordan failed to satisfy any element: the custody issue was not identical to the dependency issue (see NRS 125C.0035(4)(j); NRS Chapter 432B); he provided no record showing a final ruling on the merits; he did not show identical parties; and he did not establish the issue was actually and necessarily litigated. The record did not show the district court acted as an appellate court over the dependency case; rather, it followed NRS 125C.0035(4). The court used "issue preclusion" rather than "res judicata," consistent with Five Star. CPS report: Jordan asserted the report was inadmissible hearsay, but did not lodge a hearsay objection below, discussed the report in his own testimony, filed no reply brief, and failed to cite where the report was admitted (NRAP 28(e)(1)). The court noted it could treat the failure to respond as a concession (Ozawa v. Vision Airlines, Inc., 125 Nev. 556, 563, 216 P.3d 788, 793 (2009); Colton v. Murphy, 71 Nev. 71, 72, 279 P.2d 1036, 1036 (1955)). On the merits, the report was not in the record on appeal and Jordan showed no effect on substantial rights (NRS 47.040(1); NRAP 28(e)(1); Hallmark). The district court considered the NRS 125C.0035(4) factors, found the abuse/neglect factor (NRS 125C.0035(4)(j)) plus factors under NRS 125C.0035(4)(c), (e), (g), (k) favored Sarah, found domestic violence by clear and convincing evidence triggering the rebuttable presumption under NRS 125C.035(5), and found Jordan did not rebut it. Physical custody: Because the district court did not plainly err in considering the challenged evidence, and because it considered the 12 enumerated best-interest factors under NRS 125C.0035(4) with substantial evidence supporting each finding, the award of primary physical custody to Sarah (with Jordan's weekend parenting time) was not an abuse of discretion. Legal custody: The court applied Rivero v. Rivero, 125 Nev. 410, 420-21, 216 P.3d 213, 221 (2009), overruled in part on other grounds by Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980 (2022), explaining that legal custody involves major decisions (healthcare, education, religion), that the residing parent usually makes day-to-day decisions, and that joint legal custody does not require equal decision-making power. The written order awarded hybrid joint legal custody—not sole custody—and the court looked to the district court's oral statements to interpret the order (Kirsch v. Traber, 134 Nev. 163, 168 n.3, 414 P.3d 818, 822 n.3 (2018)). Because sole legal custody was not awarded, Jordan's due-process/notice prong failed even under Anastassatos v. Anastassatos, 112 Nev. 317, 320, 913 P.2d 652, 653 (1996) (citing Schwartz v. Schwartz, 95 Nev. 202, 206, 591 P.2d 1137, 1140 (1979)); see also NRCP 61. The court held NRS 125C.0035 applies only to physical custody, and that NRS 125C.002 (joint legal custody) and NRS 125C.0045 (custody) do not require consideration of specific best-interest factors; NRS 125C.0045(1)(a) permits an order as appears in the child's best interest, and NRS 125C.002 contains a joint legal custody presumption in certain circumstances. The physical-custody best-interest findings—particularly the domestic violence findings and presumption—supported the hybrid legal custody award (see NRS 125C.230). Child support: Applying NAC 425.140(2) to Jordan's gross monthly income, the correct base obligation is $1,895 per month, not the $1,985 ordered. Both parties agreed. Upon issuance of remittitur, the district court shall enter an amended order correctly stating the obligation.

In plain language

Jordan Cristos and Sarah Tolagson have two young children together and separated in February 2019. After they split up, the case describes several conflicts between them, including physical altercations in 2019 and 2020, and a 2021 incident at a park. Sarah obtained temporary protection orders in 2019, 2020, and 2021. In the 2020 incident, Jordan entered a nolo contendere plea (a plea in which a defendant does not contest a charge without formally admitting guilt) to a misdemeanor battery charge and was convicted. There was also a separate child dependency case alleging abuse and neglect that was eventually closed after Jordan complied with what Child Protective Services (CPS) recommended. Both parents asked the court for primary physical custody and joint legal custody. After a six-day trial, the district court gave Sarah primary physical custody and set up a "hybrid" joint legal custody arrangement: Sarah handles day-to-day decisions, but Jordan gets access to the children's medical and school records and is to be involved in major and moderate decisions about healthcare, education, and religion. Jordan was also ordered to pay $1,985 per month in child support, and he was given parenting time every weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. Jordan appealed. He argued the trial court should not have considered three things: his nolo contendere plea, the closed child dependency case, and a CPS report. The appeals court explained that Jordan did not object to this evidence during the trial, which normally means the argument is given up ("waived"). The court can still review for "plain error," but Jordan did not argue plain error, and even looking at the substance of his complaints, the court found the trial judge's decisions were supported by the evidence. The appeals court also emphasized that it does not re-weigh witness credibility or evidence on appeal. On the child dependency case, Jordan argued the doctrine of issue preclusion (a rule that stops a party from re-litigating an issue already decided) barred the court from considering it. The appeals court found he had not shown the required elements—including that he did not even provide the juvenile court records to support his claim that the case was "dismissed." On legal custody, Jordan argued the court effectively gave Sarah sole legal custody and violated his due process rights. The appeals court disagreed, noting that in a joint legal custody arrangement the parent with the child at the time typically makes day-to-day decisions, and that Jordan still participates in major decisions and has access to records. The court looked at the judge's oral statements to interpret the written order. The one point where Jordan succeeded was the child support amount. Both sides agreed the math was wrong: the correct base obligation is $1,895 per month, not $1,985. The appeals court affirmed everything else but sent the case back solely to fix that clerical error.