DZIEDZIC VS. DZIEDZIC (CHILD CUSTODY)

Key holdings

Practitioner summary

The court conducted a jurisdictional review of four post-decree orders identified in the case appeal statement, dismissing the appeal in full for lack of appellate jurisdiction. As to the November 29, 2022 order, the court reiterated that "[it] may only consider appeals authorized by statute or court rule." Brown v. MHC Stagecoach, LLC, 129 Nev. 343, 345, 301 P.3d 850, 851 (2013). NRAP 3A(b)(7) authorizes appeals from orders that finally establish or alter custody of minor children, but the order on its face contemplated further review after a psychological evaluation. Citing In re Temporary Custody of Five Minors, 105 Nev. 441, 777 P.2d 901 (1989), the court held the temporary nature of the custody determination defeated appellate jurisdiction. As to the December 30, 2022 order, the court found the notice of appeal untimely under NRAP 4(a)(1), which requires filing within 30 days of service of written notice of entry. Service occurred via eFile on the date of entry; the notice of appeal was filed February 12, 2023. Citing Healy v. Volkswagenwerk Aktiengesellschaft, 103 Nev. 329, 741 P.2d 432 (1987), the court held the untimely filing deprived it of jurisdiction. Independently, the order remanded to a different district court department, and no statute or rule authorizes an appeal from such an order. See Brown, 129 Nev. at 345, 301 P.3d at 851. As to the first January 13, 2023 order, two components were addressed. The portion declining to award child support to respondent pending submission of a financial disclosure form was not appealable by appellant for lack of aggrievement. NRAP 3A(a); Las Vegas Police Protective Ass'n Metro, Inc. v. Eighth Judicial Dist. Court, 122 Nev. 230, 239-240, 130 P.3d 182, 189 (2006) (a party is aggrieved "when either a personal right or right of property is adversely and substantially affected by a district court's ruling"). The portion compelling production of the children's birth certificates and Social Security cards was deemed an enforcement mechanism for the temporary custody order and not a special order after final judgment under NRAP 3A(b)(8), because it did not affect rights growing out of the divorce decree. Gumm v. Mainor, 118 Nev. 912, 920, 59 P.3d 1220, 1225 (2002). As to the second January 13, 2023 order ("Order (re: Miscellaneous Filings)"), the court characterized the bulk of the rulings - denial of motions for untimeliness, mootness, lack of identified relief, or improper case; striking of correspondence; and the directive to submit to a psychological evaluation and refrain from further filings - as procedural and not affecting rights growing out of the divorce decree, defeating jurisdiction under NRAP 3A(b)(8). Gumm, 118 Nev. at 920, 59 P.3d at 1225. The order's denial of appellant's motions to set aside two prior custody-related orders was separately analyzed. The November 29, 2022 order remained non-appealable as a temporary custody order. See NRAP 3A(b)(7). The March 30, 2021 order, although final when entered and altering custody and support, had been superseded by the November 29, 2022 temporary custody order, rendering review moot. Citing Personhood Nev. v. Bristol, 126 Nev. 599, 245 P.3d 572 (2010), the court reiterated its duty "to resolve actual controversies with an enforceable judgment and not to give advisory opinions on moot questions," and noted that "subsequent events may render the case moot." Because effective relief was unavailable, that portion was not appropriate for judicial review. Concluding that no order contained an appealable issue, the court ordered the appeal dismissed.

In plain language

This is a post-divorce child custody dispute. After the divorce, the family court entered several orders adjusting custody, denying various motions filed by the mother, and requiring her to undergo a psychological evaluation. The mother, representing herself, tried to appeal four of those orders to the Nevada Supreme Court. The Supreme Court did not decide whether the lower court was right or wrong. Instead, it asked a threshold question: does Nevada law allow an appeal from these particular orders at this time? It concluded the answer was no for each order, and dismissed the appeal. For the November 29, 2022 order, the court explained that a Nevada statute and court rule allow appeals only from custody orders that "finally" decide custody. Because this order said custody was only temporary and would be revisited after a psychological evaluation, it was not a final custody decision, so it could not yet be appealed. For the December 30, 2022 order, the mother filed her notice of appeal too late. Nevada's appellate rules require a notice of appeal within 30 days of being served with the order. She was served the day the order was entered but did not file her notice until February 12, 2023 - past the deadline. The court also noted that the December 30 order simply sent the case back to a different department of the district court, and no rule allows an appeal from that kind of order anyway. For the two January 13, 2023 orders, the court worked through each piece. One order declined to award child support to the father until he submitted financial paperwork - but the mother was not harmed by that decision, so she had no standing to appeal it. The same order required her to turn over the children's birth certificates and Social Security cards to the father; the court found this was simply part of carrying out the temporary custody arrangement and was not independently appealable. The other January 13 order denied a long list of motions she had filed, struck certain correspondence, and ordered her to undergo a psychological evaluation and stop filing motions until a report was submitted. The court treated these as procedural decisions that did not affect rights "growing out of" the divorce decree, and so were not appealable. To the extent the order denied her requests to undo earlier custody rulings, the court explained that the November 29, 2022 temporary order had already replaced the March 30, 2021 order, making the issue moot - meaning there was no longer a live dispute the court could fix. Because none of the four orders was properly appealable, the Supreme Court dismissed the appeal without reaching the merits.