DOUGLAS VS. DOUGLAS (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's denial of a motion to modify custody without an evidentiary hearing for abuse of discretion, citing Bautista v. Picone, 134 Nev. 334, 338, 419 P.3d 157, 160 (2018), and noting that a district court abuses its discretion when its findings of fact are not supported by substantial evidence, id. at 336, 419 P.3d at 159. Applying Rooney v. Rooney, 109 Nev. 540, 542, 853 P.2d 123, 124 (1993), the court reiterated that a district court may deny a modification motion without a hearing unless the movant demonstrates "adequate cause," which arises when the movant demonstrates a prima facie case for modification, id. at 543, 853 P.2d at 125. Under Myers v. Haskins, 138 Nev., Adv. Op. 51, 513 P.3d 527, 529-30, 532 (Ct. App. 2022), the district court may generally only consider "the properly alleged facts in the movant's verified pleadings, affidavits, or declarations" and "must accept the movant's specific allegations as true," and although the court typically must not consider the nonmovant's factual allegations, it "may look to the nonmovant's evidentiary support when it 'conclusively establishes' the falsity of the movant's allegations," id. at 530. The court set out the prima facie standard from Arcella v. Arcella, 133 Nev. 868, 871, 407 P.3d 341, 345 (2017) (quoting Rooney), requiring the movant to show that "(1) the facts alleged in the affidavits are relevant to the [relief requested]; and (2) the evidence is not merely cumulative or impeaching." To modify physical custody, the movant must additionally show, per Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 983 (2022) (quoting Ellis v. Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007)), that "(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." Applying these standards, the court found that Richard's allegations - that Melissa attempted to prevent C.D. from leaving during Richard's custodial time, that C.D. had primarily resided with Richard since the incident, and that Melissa consistently interfered with his parenting time - had not been raised before and were not cumulative or impeaching under Arcella. Accepting them as true under Myers, they could show a substantial change of circumstances affecting the child's welfare and that the child's best interests could be served by modification, per Romano; the court also cited Martin v. Martin, 120 Nev. 342, 343, 90 P.3d 981, 981-82 (2004) (recognizing that a custodial parent's substantial or pervasive interference with visitation could give rise to changed circumstances), abrogated on other grounds by Ellis. Because Melissa had not conclusively refuted Richard's claims as to the physical custody issue at this stage, the court held the district court abused its discretion in refusing to hold an evidentiary hearing. The court noted in a footnote that the declaration accompanying Richard's motion was not signed under penalty of perjury, referencing NRS 53.045 and EDCR 5.102(a), but declined to address the issue because it was not raised below or on appeal, citing Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.8, 252 P.3d 668, 672 n.3 (2011), and Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). On the teenage discretion ruling, the court observed that the district court granted C.D. unrestricted teenage discretion without either limiting its exercise or modifying the underlying custodial arrangement. The net effect was that Richard was essentially exercising primary physical custody of C.D. based on the teenage discretion provision while still paying child support to Melissa as if she had primary physical custody, and Melissa - though retaining primary physical custody on paper - could not actually exercise it. The court held this constituted an abuse of discretion, citing NRS 125C.010 (providing that a custody order awarding visitation must "ensure that the rights of the parties can be properly enforced and that the best interest of the child is achieved" and that an order is not sufficiently particular if it uses terms "susceptible to different interpretations by the parties") and Ellis, 123 Nev. at 149, 161 P.3d at 241. The court reversed and remanded for further proceedings, declining to address the parties' arguments on child support and attorney fees because the district court will need to readdress those on remand.

In plain language

Richard and Melissa were divorced in 2014 by a stipulated decree - an agreement the parties reached and the court entered as its order. Under that decree, the two shared joint legal custody of their five children, but Melissa had primary physical custody, meaning the children lived mainly with her, while Richard had parenting time on Tuesday nights and alternating weekends. In November 2021, Richard asked the court to change this arrangement. He filed a motion after an argument in September 2021 between Melissa and their oldest son, C.D. According to Richard, when he arrived to pick up the children, Melissa was arguing with C.D. and told him he could not leave with Richard, and that if he did, he could not come back. Richard said Melissa would not let C.D. gather his belongings and later cut off his access to his cell phone and bank accounts. Richard said that, apart from a few exceptions, C.D. had lived with him since then. Richard also claimed Melissa had a history of keeping him from seeing the other children during his weekday parenting time. He asked the court to give him primary physical custody of C.D., to adjust his child support, and to hold an evidentiary hearing (a hearing where witnesses testify and evidence is presented) and to interview the children. Melissa disagreed. She said she never prevented C.D. from coming home and that C.D. chose to go with Richard to avoid discipline for not finishing schoolwork and for sneaking out to see his girlfriend. She said the children were doing well in her care and that Richard had not shown enough of a change in circumstances to justify changing custody. She also said C.D. had actually returned to her home at various times, including a two-week period while Richard was on vacation. She asked the court to award her attorney fees, calling Richard's motion frivolous. The district court held a hearing without taking evidence. It denied Richard's request to change custody and to hold an evidentiary hearing, finding he had not made out a "prima facie case" for modification - meaning he had not, on the face of his filings, shown enough to justify a full hearing. Because C.D. was almost 17, the court said it had "no problem granting [C.D.] teenage discretion," letting C.D. choose which parent to live with. The court also denied Richard's request to interview the children and to change child support, and denied Melissa's request for attorney fees. Both parents appealed. The Court of Appeals concluded the district court should have held an evidentiary hearing. When someone asks to modify custody, the court generally must assume the moving party's specific factual claims are true unless the other side's evidence conclusively proves them false. Here, Richard's claims - that Melissa tried to prevent C.D. from leaving, that C.D. had been living mainly with Richard since the incident, and that Melissa interfered with his parenting time - were new, were relevant, and, if true, could show a substantial change in circumstances affecting the child's welfare. Melissa's disagreement might eventually prove correct, but at this early stage she had not conclusively disproven Richard's claims. So the court decided a hearing was required. The Court of Appeals also found a problem with the "teenage discretion" ruling. By giving C.D. unlimited discretion to choose where to live, while not actually changing the custody order, the court created a situation where C.D. was living mainly with Richard, yet Richard was still paying child support as though Melissa had primary custody, and Melissa - though still officially the primary custodian - could not actually exercise that custody. The court concluded this was an abuse of discretion. The Court of Appeals reversed and sent the case back to the district court for further proceedings, including an evidentiary hearing. Because of that, it did not decide the child support and attorney fees questions, leaving those for the district court to revisit on remand.