DAVIS VS. TROTTA (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the denial of an NRCP 60(b)(1) motion for an abuse of discretion, citing Rodriguez v. Fiesta Palms, LLC, 134 Nev. 654, 656, 428 P.3d 255, 257 (2018), holding modified by Willard v. Berry-Hinckley Indus., 136 Nev. 467, 470-71 n.6, 469 P.3d 176, 180 n.6 (2020). The court gives wide discretion to district court rulings on NRCP 60(b)(1) motions but noted that a district court abuses its discretion when it disregards guiding legal principles, citing McKnight Family, LLP v. Adept Mgmt. Servs., Inc., 129 Nev. 610, 617, 310 P.3d 555, 559 (2013). NRCP 60(b)(1) permits relief from a final judgment for "mistake, inadvertence, surprise, or excusable neglect" and "operates as a remedial rule that gives due consideration to our court system's preference to adjudicate cases on the merits, without compromising the dignity of the court process." Willard, 136 Nev. at 469, 469 P.3d at 179. The court applied the four-factor framework from Yochum v. Davis, 98 Nev. 484, 486, 653 P.2d 1215, 1216 (1982), overruled in part by Epstein v. Epstein, 113 Nev. 1401, 1405, 950 P.2d 771, 773 (1997): "(1) a prompt application to remove the judgment; (2) the absence of an intent to delay the proceedings; (3) a lack of knowledge of procedural requirements; and (4) good faith." The court added that the district court must also consider Nevada's policy of adjudicating cases on their merits whenever feasible, citing Rodriguez, 134 Nev. at 657, 428 P.3d at 257. On the excusable-neglect issue, the court held the record supported the district court's conclusion that counsel's failure to appear was not excusable neglect. Daniel admitted he fired his counsel (on November 26, 2024) and then elected to negotiate with Kortney's counsel himself; he therefore could not assert that he reasonably expected his counsel to attend the modification hearing. The court distinguished Passarelli v. J-Mar Development, Inc., 102 Nev. 283, 286, 720 P.2d 1221, 1224 (1986) (counsel's failure to meet professional obligations due to a psychiatric disorder "effectually and unknowingly deprived [the party] of legal representation"), and cited Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1043 (9th Cir. 1992) (carelessness is not a ground for NRCP 60(b) relief). In a footnote, the court referenced EDCR 5.302(b), which requires that an attorney seeking to withdraw without substitution may do so only by order of the court if proceedings remain pending. On the good-faith and knowledge factors, the court held the record supported the finding that Daniel's failure to appear was not a good faith mistake. The circulated proposed stipulation and order noted the hearing date; Daniel acknowledged dismissing counsel and personally reviewing the proposed stipulation and order, had specific objections to its provisions, and went over the proposed order with his new wife. The court deferred to the district court's credibility determination, citing Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009) ("[C]redibility determinations and the weighing of evidence are left to the trier of fact."). On the merits-preference factor, the court held the modification order was not a default judgment. The district court conducted an evidentiary hearing at which Kortney appeared and presented evidence, found her testimony credible and compelling, and made findings on the best-interest factors in NRS 125C.0035(4), citing Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015), and NRS 125C.001. The court emphasized that the district court did not grant the modification based on Daniel's failure to oppose or appear, but rather construed that failure as a concession that Kortney's contentions were meritorious after independently finding those contentions credible and sufficient. Concluding that Daniel failed to demonstrate an abuse of discretion, the court affirmed, citing Rodriguez, 134 Nev. at 656, 428 P.3d at 257.

In plain language

Daniel Davis and Kortney Trotta divorced in November 2019 and initially shared joint legal and physical custody of their two children. After several changes over the years, a 2022 agreement gave Kortney primary physical custody and gave Daniel parenting time every other weekend. In October 2024, Kortney asked the court to change the arrangement. She said Daniel had stopped showing up — missing his children's medical appointments (including a medication check needed to manage their son's medication), failing to participate in educational meetings (including for the son's "504 plan" and conferences about their daughter's school struggles), reducing his parenting time, canceling visits at the last minute, and cutting off the children's contact with their half-sibling. She asked for sole legal custody and primary physical custody, plus changes to the holiday schedule, child support, and reimbursement for unpaid health insurance premiums. Daniel did not file any written response to Kortney's motion, and neither he nor his lawyer showed up to the hearing. With only Kortney present, the district court heard her testimony, found it credible and compelling, found it was in the children's best interest, and granted her requests — awarding her sole legal and primary physical custody, reducing Daniel's parenting time to every other Saturday from 9:00 a.m. to 5:00 p.m., ending the special holiday and vacation schedule, and granting reimbursement and attorney fees. The written order was entered December 9, 2024. In January 2025, Daniel asked the court to undo that order under NRCP 60(b), a rule that lets a court set aside a final judgment for reasons like "mistake" or "excusable neglect." Daniel said he had fired his lawyer but that the lawyer never formally withdrew from the case, so the lawyer should have filed a response and appeared. Daniel also claimed he never knew about the hearing date, even though he was personally negotiating with Kortney's attorney and had emailed that attorney the day before the hearing. Kortney opposed, pointing to emails showing Daniel had reviewed a proposed stipulation that listed the hearing date, that he had specific objections to it, and that he had written that they "would be going to court." When the district court questioned Daniel under oath, it found he was not truthful about whether he knew the hearing date, because his own email showed he had reviewed the document containing it. The court said that while it would have been better practice for his lawyer to file a formal withdrawal, that did not change the fact that Daniel knew about the hearing. The court denied his motion to set aside. On appeal, the Court of Appeals affirmed. It explained that because Daniel had fired his lawyer and chosen to handle negotiations himself, he could not reasonably have expected that lawyer to attend the hearing, so the lawyer's failure to appear was not "excusable neglect." The court also agreed Daniel knew about the hearing date based on his own emails. Finally, the court noted that the modification order was not a "default judgment" entered just because Daniel didn't show up; instead, the district court had held an actual evidentiary hearing, heard Kortney's testimony, and made findings about the children's best interests. Because Daniel did not show the district court misused its discretion, the appeals court upheld the denial.