DURAN VS. ARMAS

Statutes cited

Key holdings

Practitioner summary

**Standard of review.** The court reviewed child custody determinations, legal-custody modifications, child support decisions, and continuance rulings for abuse of discretion. *Ellis v. Carucci*, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007); *Mack-Manley v. Manley*, 122 Nev. 849, 858, 138 P.3d 525, 531 (2006); *Romano v. Romano*, 138 Nev. 1, 7, 501 P.3d 980, 985 (2022); *Bongiovi v. Sullivan*, 122 Nev. 556, 570, 138 P.3d 433, 444 (2006). An abuse of discretion occurs when a decision "is not supported by substantial evidence or is clearly erroneous." *Bautista v. Picone*, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018). Factual findings are upheld where supported by substantial evidence — "evidence that a reasonable person may accept as adequate to sustain a judgment." *Ellis*, 123 Nev. at 149, 161 P.3d at 242. **Custody framework.** The sole consideration in determining custody is the best interest of the children. NRS 125C.0035(1); *Ellis*, 123 Nev. at 149, 161 P.3d at 242. The court must consider all twelve factors in NRS 125C.0035(4), and a written custody decree must contain findings on those factors and tie them to the ultimate determination. *Davis v. Ewalefo*, 131 Nev. 445, 450-51, 352 P.3d 1139, 1143 (2015). The district court is presumed to have properly exercised its discretion. *Flynn v. Flynn*, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). **Continuance and exclusion of evidence.** The court held Duran failed to present a cogent argument warranting reversal. She offered no indication of what evidence or testimony she would have presented if trial had been continued, nor any explanation of how it would have produced a different result, and she failed to explain why she declined to testify when the court permitted her to do so. *Edwards v. Emperor's Garden Rest.*, 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (declining to consider issues unsupported by cogent argument). **Child interviews.** The district court has discretion to decide whether to interview minor children. NRS 125C.0035(4)(a) directs courts to "consider" the wishes of a child of sufficient age and capacity but does not require an interview; NRCP 16.215(a) sets forth the procedures and considerations; *Sims v. Sims*, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993) ("The trial court enjoys broad discretionary powers in determining questions of child custody."). Duran did not address the court's findings (that interviewing J.D. was not in J.D.'s best interest and that P.D. was not of sufficient age), and so presented no cogent argument. *Edwards*, supra. Her challenge to the best-interest analysis was likewise deemed waived for failure to address the specific findings. *Powell v. Liberty Mut. Fire Ins. Co.*, 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) ("Issues not raised in an appellant's opening brief are deemed waived."). **Child support / imputation of income.** A district court may impute income to a parent after first determining the parent is underemployed or unemployed without good cause. NAC 425.125(1); *Rosenbaum v. Rosenbaum*, 86 Nev. 550, 554, 471 P.2d 254, 256-57 (1970) (court may impute income to a party who "purposefully earns less than [their] reasonable capabilities permit"). The key issue is the parent's good faith. *Rosenbaum*, 86 Nev. at 554, 471 P.2d at 257. The district court considered the NAC 425.125(2) factors and made findings (good health, college education, no employment barriers, approximately four years of unemployment, prior Tesla employment at $21.25 per hour, ability to obtain nominal employment), supporting good cause to impute income. The appeals court found substantial evidence and declined to reweigh evidence or credibility. *Grosjean v. Imperial Palace, Inc.*, 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009); *Roggen v. Roggen*, 96 Nev. 687, 689, 615 P.2d 250, 251 (1980). **Legal-custody modification.** Legal custody "involves having basic legal responsibility for a child and making major decisions regarding the child, including the child's health, education, and religious upbringing." *Rivero v. Rivero*, 125 Nev. 410, 420, 216 P.3d 213, 221 (2009), overruled on other grounds by *Romano*, 138 Nev. at 6, 501 P.3d at 984. There is a statutory presumption that joint legal custody serves the children's best interest when certain conditions are met. NRS 125C.002(1)(a). The presumption is overcome when the court finds the parents unable to communicate, cooperate, and compromise in the children's best interest. *Rivero*, 125 Nev. at 420, 216 P.3d at 221. To modify custody, the moving party must show "(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*, 138 Nev. at 5, 501 P.3d at 983. The court held the district court's findings (delay and concealment regarding the children's mental health services; provision of a "burner cell phone" to P.D.; encouraging the children to run away from De Armas's home on at least two occasions post-decree) sufficiently established a substantial change, even absent an explicit such finding. Though best-interest findings are "not mandatory when evaluating legal custody," the district court considered NRS 125C.0035 and found NRS 125C.0035(4)(c), (f), (g), and (h) favored De Armas. The court declined to second-guess factual or credibility findings. *Ellis*, 123 Nev. at 152, 161 P.3d at 244; *Quintero v. McDonald*, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000). Critically, Duran failed to provide a transcript of the evidentiary hearing, so the court presumed the missing transcript supported the district court's decision. *Cuzze* [v. Univ. & Cmty. Coll. Sys. of Nev.], 123 Nev. [598], 603, 172 P.3d [131], 135 [(2007)]. **Therapy order.** Reviewing for abuse of discretion, the court focused on whether the district court "reached its conclusions for the appropriate [legal] reasons" and whether findings were "supported by substantial evidence." *Ellis*, 123 Nev. at 149, 161 P.3d at 241-42; *Sims*, 109 Nev. at 1148, 865 P.2d at 330. Although the district court did not expressly state that ordering Duran to undergo therapy was in the children's best interest, its findings correlated to two best-interest factors: NRS 125C.0035(4)(f) (the mental and physical health of the parents) and NRS 125C.0035(4)(e) (the ability of the parents to cooperate). The court held a district court may properly direct a parent to attend therapy where it determines therapy is in the children's best interest, citing *Rock v. Rock*, 308 A.3d 492, 506 (Vt. 2023), and *Askew v. Askew*, Docket No. 66444, 2016 WL 606903 (Nev. Feb. 12, 2016) (Order Affirming in Part, Reversing in Part, and Remanding).

In plain language

Janelle Duran and Jimmie De Armas were never married but share two children, born in 2010 and 2014. In March 2023, Duran filed a court case asking for sole legal and primary physical custody. De Armas responded asking for joint custody and later for primary physical custody. Before the trial, Duran's attorney withdrew from the case (was allowed to stop representing her) on August 1, 2023. Trial was set for August 29. Duran did not do much during that nearly one-month window except file a last-minute request on August 24 to delay the trial, which the court denied the next day. Because Duran had not filed a required pre-trial memorandum, had not submitted proposed exhibits, and had not taken part in the discovery process (the pre-trial exchange of information), the court ruled she could not present documents or exhibits at trial. The court did, however, tell her she could still testify. Duran chose not to testify and instead "rested on her pleadings" (relied only on the documents already filed, presenting no live testimony). At trial, De Armas was the only witness. He testified about Duran withholding the children, not cooperating with him, changing the children's schools without telling him, frequently calling the police on him, and other concerns. The district court then issued a custody decree giving the parents joint legal custody but awarding De Armas primary physical custody, with Duran having weekend parenting time. The court found that several of the legal "best interest" factors favored De Armas. On child support, the court decided Duran was capable of working but was not, and "imputed" income to her — meaning it treated her as if she earned a certain amount ($18.00 per hour, or $3,120 per month) for the purpose of calculating support. Her child support obligation was set at $668 per month. The court also ordered that the modeling earnings of the younger child be placed in a blocked bank account for that child's benefit, because it found Duran had sole access to those earnings. While Duran's appeal was pending, De Armas asked to send the case back to the trial court so it could consider his request to change custody. The appeals court allowed a limited remand. On remand, after an evidentiary hearing where both parents testified, the district court gave De Armas sole legal custody (the right to make major decisions for the children), kept physical custody as it was, and ordered Duran to attend individual therapy — one appointment per month for six months — finding the therapy would help her and, in turn, the children. Duran appealed all of this. The Court of Appeals affirmed every part. The court explained that it reviews custody and support decisions for "abuse of discretion," a deferential standard meaning it will not overturn the trial court unless the decision lacks support in the evidence or is clearly wrong. On the continuance and the exclusion of evidence, the court noted Duran never explained what evidence she would have offered or how it would have changed the result, and she declined the chance to testify. On the child interviews, the court explained that judges have discretion whether to interview children, and Duran did not actually challenge the trial court's reasons. On child support, the court found substantial evidence supported imputing income, and it emphasized that appellate courts do not re-weigh evidence or re-judge witness credibility. On the legal-custody modification, the court found the trial court's findings adequately showed a substantial change in circumstances and that the change served the children's best interest. Importantly, Duran did not provide a transcript of the evidentiary hearing, so the court presumed the missing transcript supported the trial court's findings. On the therapy order, the court found the trial court made sufficient findings tied to the children's best interest.