CURRERI VS. MAYHALL (CHILD CUSTODY)

Key holdings

Practitioner summary

The Court of Appeals reviewed the denial of a motion to modify physical custody without an evidentiary hearing for abuse of discretion, citing Myers v. Haskins, 138 Nev. 553, 556, 513 P.3d 527, 531 (Ct. App. 2022), and noting that a district court abuses its discretion only when "no reasonable judge could reach a similar conclusion under the same circumstances," Leavitt v. Siems, 130 Nev. 503, 509, 330 P.3d 1, 5 (2014). On the framework for modification, the court explained that a district court must hold an evidentiary hearing if the movant demonstrates "adequate cause," Rooney v. Rooney, 109 Nev. 540, 542, 853 P.2d 123, 124 (1993), which arises when the movant demonstrates a prima facie case for modification, id. at 543, 853 P.2d at 125. To modify physical custody, a movant must allege facts showing "(1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child's best interest is served by the modification." Romano v. Romano, 138 Nev. 1, 3, 501 P.3d 980, 982 (2022) (quoting Ellis v. Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007), abrogated by Killebrew v. State ex rel. Donohue, 139 Nev. 401, 404-05, 535 P.3d 1167, 1171 (2023)). To avoid "repetitive, serial motions," "any change in circumstances must generally have occurred since the last custody determination." Ellis, 123 Nev. at 151, 161 P.3d at 243. In assessing a prima facie case, the court must accept the movant's specific allegations as true, Myers, 138 Nev. at 556-57, 513 P.3d at 532, but "demonstrating a prima facie case for modification is a heavy burden on a petitioner which must be satisfied before a hearing is convened," id. at 560, 513 P.3d at 534. Applying this framework, the court concluded the district court did not abuse its discretion in denying the modification motion without a hearing because Curreri identified no change in circumstance occurring after the 2023 custody order. Her motion instead sought to challenge the evidence the district court previously relied on, and her sexual-abuse and cover-up allegations did not constitute changed circumstances because they had been extensively litigated before and during the 2023 custody litigation. The court contrasted Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004), which held that pre-decision evidence of domestic violence may constitute changed circumstances "if the moving party or the court was unaware of the existence or extent of the conduct when the court rendered its prior custody decision." The court reviewed the denial of NRCP 60(b) relief for abuse of discretion, citing Willard v. Berry-Hinckley Indus., 139 Nev. 516, 518, 539 P.3d 250, 255 (2023). It affirmed because the district court had previously denied the same arguments, and Curreri had repeatedly sought to vacate all orders based on alleged misconduct said to violate her constitutional rights. The court found no abuse of discretion in the district court's determination that she was submitting serial motions attempting to relitigate prior disputes, citing Ellis, 123 Nev. at 151, 161 P.3d at 243, and Brandon v. West, 29 Nev. 135, 142, 88 P. 140, 141 (1906) (stating that "[a] second application for the rehearing of a cause by the same party, after his petition for rehearing has been denied, will not be entertained"). On the bias claim, the court concluded Curreri failed to demonstrate the district court was biased against her. She argued bias because the district judge serves as a "liaison" with the Family Peace Center, but the court declined to consider the argument because she failed to cogently argue how that position rendered the court biased, citing Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). In a footnote, the court noted that although the district court initially ordered parenting time at the Family Peace Center, it repeatedly encouraged the parties to locate an independent supervisor and neutral location. The court affirmed the denial of the judicial-notice motion because Curreri did not identify on appeal the facts she wanted noticed and thus presented no cogent argument, again citing Edwards. The court dismissed as untimely the portion of the appeal challenging the 2023 custody order and orders issued between 2017 and 2019, citing Healy v. Volkswagenwerk Aktiengesellschaft, 103 Nev. 329, 331, 741 P.2d 432, 433 (1987), for the proposition that the court lacks jurisdiction over untimely appeals.

In plain language

Giana Curreri and Marcus Mayhall are the parents of a child born in 2015. They were never married. Beginning in 2017, they filed competing requests for custody and eventually agreed to share joint legal and physical custody. Over several years, Curreri repeatedly alleged that Mayhall was sexually abusing their son, prompting investigations by Washoe County Child Protective Services (CPS) and law enforcement. According to the opinion, those investigations concluded the allegations were unsubstantiated. The district court became concerned that Curreri was subjecting the child to unnecessary physical examinations and forensic interviews. A parenting evaluation indicated Curreri may suffer from paranoid personality disorder that affected her ability to co-parent and caused harm to the child. The custody arrangement shifted several times, including periods where Mayhall had temporary primary physical custody and Curreri had parenting time or supervised visitation. In May 2023, Mayhall filed an emergency motion arguing Curreri was coaching the child to make false abuse allegations. Curreri filed a counterpetition again alleging abuse, sex trafficking, and fraud by Mayhall's counsel. After an emergency hearing and later an evidentiary hearing in September 2023, the district court awarded Mayhall sole legal custody and primary physical custody, gave Curreri weekly supervised parenting time, and ordered the child to remain in counseling and Curreri to seek treatment. In November 2024, Curreri filed a new combined ("omnibus") motion asking the court to change custody again, to take judicial notice of facts in the record, and, alternatively, to vacate all prior orders under NRCP 60(b) (a rule that allows a court to set aside earlier orders in certain circumstances). She argued the earlier investigations were inadequate, that the court had ignored evidence proving abuse, and that the judge and Mayhall's attorney had engaged in misconduct dating back to 2017. The court gave her a chance to file an amended motion identifying any change in circumstances occurring after the 2023 order. Her follow-up declaration and exhibits did not identify any such new change; instead they reviewed the case history and made more detailed misconduct allegations. The district court denied the motion to change custody without holding an evidentiary hearing, finding Curreri had not alleged any change in circumstances after the 2023 order. It denied the judicial-notice request because it was unsure what facts Curreri wanted noticed. It denied the NRCP 60(b) request because it had already reviewed and rejected the same misconduct allegations in prior orders. The Court of Appeals agreed with the district court. It held the district court did not abuse its discretion in denying the custody-modification motion without a hearing because Curreri had not pointed to anything that changed after the 2023 order, and her abuse allegations had already been litigated. It affirmed the denial of NRCP 60(b) relief because the same arguments had been raised and rejected before. It rejected her claim that the judge was biased, finding she did not develop a coherent argument. It affirmed the denial of the judicial-notice request because she did not identify the facts on appeal. Finally, it dismissed, as untimely, the part of her appeal that tried to challenge the 2023 custody order and the 2017-2019 orders.