De Vincenzi v. Reeves

Statutes cited

Key holdings

• -NRS 125C.0065(1)'s relocation-consent and petition requirements apply only where joint physical custody has been established by "an order, judgment or decree of a court"; the statute is inapplicable where no such custody order exists.
• -Where no court order addresses custody, the parents have joint legal and physical custody under NRS 125C.0015, and wrongful removal is analyzed under NRS 200.359(2).
• -A district court's finding that a parent did not wrongfully remove children under NRS 200.359(2) will not be disturbed where it is supported by substantial evidence and is not clearly erroneous.
• -Because no abduction occurred, the rebuttable presumption against awarding custody to a parent who committed child abduction under NRS 125C.0035(7) and NRS 125C.240(1) did not apply.
• -A parent who stipulated to a custody evaluation including relocation and to admission of a relocation assessment at trial had notice that relocation would be decided regardless of whether a formal relocation petition was filed.
• -A best-interests determination premised on a thorough analysis of the NRS 125C.0035(4) factors will be upheld where the challenge amounts to a request to reweigh evidence, which the appellate court does not do.

Practitioner summary

Standard of review: The court applied the settled abuse-of-discretion standard for child custody determinations, citing Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). "An abuse of discretion occurs when a district court's decision is not supported by substantial evidence or is clearly erroneous." Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018). Legal conclusions are reviewed de novo, In re Parental Rts. as to A.L., 130 Nev. 914, 918, 337 P.3d 758, 761 (2014), while factual findings are given deference, Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005). The court reiterated that it does not reweigh evidence or witness credibility (Ellis, 123 Nev. at 152, 161 P.3d at 244; Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000)) and that "where conflicting evidence exists, all favorable inferences must be drawn towards the prevailing party." Quintero, 116 Nev. at 1183, 14 P.3d at 523 (quoting Yamaha Motor Co., U.S.A. v. Arnoult, 114 Nev. 233, 238, 955 P.2d 661, 664 (1998)). Wrongful relocation under NRS 125C.0065(1): The court held the relocation-consent statute inapplicable. NRS 125C.0065(1) requires a parent intending to relocate outside Nevada to obtain the other parent's written consent or petition for primary custody before relocating only where joint physical custody has been established by "an order, judgment or decree of a court." Because no "order, judgment or decree of a court" establishing custody existed either when Reeves first traveled to Texas or when she decided to remain permanently, the statute did not govern, and the argument failed. Wrongful removal under NRS 200.359(2): The court analyzed removal under NRS 200.359(2), which provides that "a parent who has joint legal and physical custody of a child pursuant to NRS 125C.0015 shall not willfully conceal or remove the child from the [other parent's] custody...with the specific intent to frustrate the [other parent's] efforts...to establish or maintain a meaningful relationship with the child." The statute applied because, absent a custody order, the parents held joint legal and physical custody under NRS 125C.0015. The district court found no violation: Reeves traveled for a short visit intending to later meet De Vincenzi with the children on the east coast, and she maintained ongoing communications about returning after De Vincenzi abruptly ended the relationship and obtained a temporary protective order barring her from the home, to which he was unresponsive. The court held this determination was supported by substantial evidence and not clearly erroneous, and therefore no abuse of discretion occurred. Because no abduction occurred, the court held the rebuttable statutory custody presumption did not apply, citing NRS 125C.0035(7) and NRS 125C.240(1). Notice and consideration of relocation: The court rejected the argument that the district court improperly considered relocation absent a formal petition. NRS 125C.0065(1) was again inapplicable, and De Vincenzi had stipulated to a custody evaluation encompassing relocation early in the litigation and to admission of the relocation assessment at trial, so he had notice relocation would be decided regardless of a formal petition. Best interests: The court invoked the presumption that "the district court properly exercised its discretion in determining the best interests of the child." Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). The district court conducted a thorough analysis of the NRS 125C.0035(4) best-interest factors. De Vincenzi's contentions amounted to disagreements with the district court's findings and a request to reweigh evidence, which the court declined to do, citing Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009), and Roggen v. Roggen, 96 Nev. 687, 689, 615 P.2d 250, 251 (1980) ("[i]t is not the duty of a reviewing court to instruct the trier of facts as to which witnesses, and what portions of their testimony, are to be believed"). The court affirmed.

In plain language

Kevin De Vincenzi and Jennifer Reeves entered into a domestic partnership in Nevada in November 2018 and have two children together. In August 2021, Reeves took the children to visit her sister in Midland, Texas. While she was there, De Vincenzi told her he had begun a relationship with the children's nanny and was ending his relationship with Reeves. In September 2021, De Vincenzi filed a petition to terminate the domestic partnership and obtained a temporary protective order barring Reeves from their shared Las Vegas home. According to the opinion, Reeves had not initially planned to stay in Texas, but she decided to remain because she and the children had no return airline tickets, she was unemployed and financially dependent on De Vincenzi, and De Vincenzi did not respond to her messages about returning to Las Vegas with the children. She eventually decided to relocate permanently to Midland, where she got a job and a house. After extended litigation and a trial at which both parties testified and presented evidence, the district court entered a written order giving Reeves primary physical custody in Texas. De Vincenzi appealed. The Nevada Supreme Court affirmed. The court explained that it does not overturn a district court's custody decision unless there was a clear abuse of discretion, and that it does not re-weigh the evidence or reassess which witnesses were believable — that job belongs to the trial judge who heard the testimony. De Vincenzi first argued that Reeves broke the law by relocating without the consent required under a Nevada statute. The court held that statute did not apply because it only governs situations where a court has already issued a custody order, and here no court order about custody existed when Reeves went to Texas or when she decided to stay. The court also examined a separate criminal-type statute about wrongfully removing or concealing a child. It held that statute did apply (because there was no custody order, both parents shared legal and physical custody by default), but that Reeves did not violate it: the trial court found she had traveled for a short visit, kept communicating with De Vincenzi about returning, and got no response from him after he ended the relationship and obtained a protective order keeping her out of their home. De Vincenzi next argued the district court should not have considered relocation because Reeves never filed a formal relocation petition. The court rejected this, again noting the consent statute did not apply, and pointing out that De Vincenzi had agreed early in the case to a custody evaluation that included relocation and to admitting the relocation assessment at trial, so he had notice that relocation would be decided. Finally, De Vincenzi challenged the trial court's conclusion that primary physical custody with Reeves served the children's best interests. The court held the district court had conducted a thorough analysis of the statutory best-interest factors, and that De Vincenzi was essentially asking the appellate court to re-weigh the evidence — something it does not do. The court affirmed.