CURRERI VS. MAYHALL (CHILD CUSTODY)

Key holdings

Practitioner summary

The court reviewed the denial of a motion to modify physical custody without an evidentiary hearing for an abuse of discretion, citing Myers v. Haskins, 138 Nev. 558, 556, 513 P.3d 527, 531 (Ct. App. 2022). 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 modification framework, the court applied the rule that a district court must hold an evidentiary hearing only where the movant demonstrates "adequate cause," which arises upon a prima facie showing for modification. Rooney v. Rooney, 109 Nev. 540, 542-543, 853 P.2d 123, 124-125 (1993). To modify physical custody, the 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, 8, 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, and demonstrating a prima facie case 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 that framework, the court concluded the district court did not abuse its discretion in denying modification without a hearing because Curreri's motion identified no change in circumstance occurring after the 2023 custody order and instead sought to challenge evidence the district court previously relied upon. The court reasoned that the sexual abuse allegations and Mayhall's alleged cover-up did not constitute changed circumstances because they were extensively litigated before and during the 2023 custody litigation. The court contrasted this with 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." On the NRCP 60(b) motion, the court reviewed the denial 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 misconduct arguments, and Curreri had not shown that the district court's finding that she was submitting serial motions attempting to relitigate prior disputes was an abuse of discretion. The court cited Ellis, 123 Nev. at 151, 161 P.3d at 243, and Brandon v. West, 29 Nev. 135, 142, 88 P. 140, 141 (1906), which stated 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 declined to consider Curreri's argument that the district judge's role as a "liaison" with the Family Peace Center rendered the judge biased, holding she failed to cogently argue how that position created bias. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). On the same cogent-argument basis, the court affirmed the denial of the judicial-notice motion because Curreri did not identify the facts on appeal. Finally, the court dismissed as untimely the portions of the appeal challenging the 2023 custody order and various orders issued between 2017 and 2019, citing Healy v. Volkswagenwerk Aktiengesellschaft, 103 Nev. 329, 331, 741 P.2d 432, 433 (1987), which held this court does not have jurisdiction to consider untimely appeals.

In plain language

Giana Curreri and Marcus Mayhall are the parents of a child, G.C.M., born in 2015. The parents were never married. Starting in 2017 they filed competing requests for custody, and the arrangements changed several times over the years, moving between shared joint custody and periods where one parent had primary physical custody. A recurring theme in the case was Curreri's allegations that Mayhall was sexually abusing the child. According to the opinion, Child Protective Services (CPS) and law enforcement investigated these allegations on more than one occasion and concluded they were unsubstantiated. The district court expressed concern that Curreri was subjecting the child to unnecessary physical examinations and forensic interviews through repeated reports. A court-ordered parenting evaluation indicated that Curreri "may suffer from paranoid personality disorder" that affected her ability to co-parent. After an evidentiary hearing in September 2023, the district court gave Mayhall sole legal custody and primary physical custody, gave Curreri weekly supervised parenting time, ordered the child to remain in counseling, and ordered Curreri to seek treatment. In November 2024, Curreri filed the motion at issue in this appeal. She argued that the earlier abuse investigations were inadequate, that the court had ignored evidence proving abuse, and that these amounted to a "material change in circumstances" that would justify changing custody. She also asked the court to take "judicial notice" (an official acknowledgment of certain facts) of items in the record but did not specify which facts. In the alternative, she asked the court to erase all its prior orders under a rule (NRCP 60(b)) that allows courts to undo prior decisions in certain situations, arguing there had been judicial and attorney misconduct dating back to 2017 and that the judge was biased against her. The district court denied everything. It found that Curreri had not pointed to any change in circumstances that happened after the 2023 custody order, so it denied the request to modify custody without holding a full hearing. It denied the judicial-notice request because it was "unsure what Mother wishes for the Court to take judicial notice [of]." And it denied the request to vacate prior orders because it had already reviewed and rejected the same misconduct arguments before. The Court of Appeals agreed with the district court and affirmed. It explained that to get a hearing on a custody change, a parent must first make a preliminary showing that circumstances have substantially changed since the last custody decision. Curreri's motion instead re-argued the same abuse allegations that had already been litigated during the 2023 proceedings, so it did not clear that bar. The court also affirmed the refusal to vacate all prior orders, noting Curreri was repeatedly filing motions raising arguments the court had already rejected. It rejected her claim that the judge was biased, saying she did not adequately explain her argument. Finally, it dismissed the parts of her appeal that tried to challenge the 2023 custody order and earlier orders from 2017 to 2019, because those challenges were filed too late.