DAGHER VS. DAGHER (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court reversed the denial of the mother's motion to set aside an order that had changed physical custody of the parties' daughter to the father. The order followed a five-minute hearing set on a purported 'modification of divorce' motion and an order to show cause; the record showed no modification-of-divorce motion was pending, and the order to show cause did not seek a permanent change of physical custody, so the mother was never apprised the hearing might involve a change of custody. She did not appear, believing counsel would attend. The court treated the mother's motion as one to set aside a default judgment for excusable neglect under NRCP 60(b) (noting NRCP 55 does not provide for default on a mere motion). Orders refusing to set aside default judgments are normally reviewed for abuse of discretion, Fagin v. Fagin, 91 Nev. 794, 798, 544 P.2d 415, 417 (1975), but the policy favoring decision on the merits is heightened in domestic relations cases affecting the interests of nonlitigants. Cicerchia v. Cicerchia, 77 Nev. 158, 161, 360 P.2d 839, 841 (1961). Because, under NRS 125.480, the best interest of the child is the sole criterion in a custody determination, the court held it was error to change custody without prior specific notice and as a sanction for perceived maternal misconduct; a court may not use changes of custody to punish parental misconduct (disobedience being punishable by other means, see NRS 22.010(3), .100). The court further held the mother demonstrated excusable neglect: counsel's abandonment of a client, unknown to the client, constitutes excusable neglect, as does a reasonable belief that one will be represented. Passarelli v. J-Mar Development, 102 Nev. 283, 720 P.2d 1221 (1986); Banks v. Heater, 95 Nev. 610, 600 P.2d 245 (1979). The order changing custody was vacated and the cause remanded for a priority custody hearing; given evidence the mother may have sought to evade Nevada's jurisdiction, the daughter was to remain with the father pending the outcome.

In plain language

Mark and Rita Dagher divorced in 1983 and had two children, including a daughter, Monique. Their case was marked by repeated litigation. In April 1985, at Mark's request, the court set a brief five-minute hearing on a 'modification of divorce' motion and an order to show cause. But according to the record, no motion to modify the divorce was actually pending, and the order to show cause did not ask for a permanent change of physical custody. In short, Rita was never told the hearing might involve changing custody of her daughter. Rita did not appear at the hearing - she said she believed her lawyer would attend for her. At the hearing, the court ordered Monique's physical custody changed to Mark, stating that Rita intended to disobey court orders and to deny Mark a normal relationship with their daughter. Rita then moved to set aside that order; the court denied her request. The Nevada Supreme Court reversed. It treated Rita's request as a motion to set aside a default for excusable neglect. It noted the policy favoring deciding cases on the merits is especially strong in family cases, because a child's interests are at stake. Under Nevada law, the best interest of the child is the only proper basis for a custody decision. The court held it was error to change custody without giving Rita specific advance notice, and it was improper to change custody as a punishment for Rita's perceived misconduct - a court cannot use custody as a weapon to punish a parent (there are other ways to address disobedience of court orders). The court also found Rita had shown excusable neglect: she reasonably believed an attorney had agreed to represent her, and an attorney's abandonment of a client, unknown to the client, is excusable neglect. So the trial court should have set its order aside. The court vacated the custody-change order and sent the case back for a prompt, proper hearing on custody. Because there was evidence Rita may have tried to evade Nevada's courts, the court directed that Monique remain with her father until that hearing is decided.