FRANKLIN VS. FRANKLIN (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review. Child custody decisions are reviewed for abuse of discretion, with factual findings sustained if supported by substantial evidence. Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009); Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). Evidentiary rulings, divorce-decree property determinations, alimony awards, and NRS 18.010(2)(b) attorney fee awards are likewise reviewed for abuse of discretion. Klabacka v. Nelson, 133 Nev. 164, 174, 394 P.3d 940, 949 (2017); Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004); Shane v. Shane, 84 Nev. 20, 22, 435 P.2d 753, 755 (1968); Rivero, 125 Nev. at 440-41, 216 P.3d at 234. Custody framework. NRS 125C.0025(1)(b) creates a preference for joint physical custody when each parent has shown an intent to establish a meaningful relationship with the child. NRS 125C.003(1)(c) creates a presumption against joint physical custody when clear and convincing evidence shows a parent has committed domestic violence. The court reaffirmed that a victim's testimony alone can satisfy the clear-and-convincing standard, citing Keeney v. State, 109 Nev. 220, 229, 850 P.2d 311, 317 (1993), but that credibility determinations remain the province of the trier of fact, citing Castle v. Simmons, 120 Nev. 98, 103, 86 P.3d 1042, 1046 (2004), and Wolff v. Wolff, 112 Nev. 1355, 1359, 929 P.2d 916, 918-19 (1996). Clear and convincing evidence requires "evidence of tangible facts from which a legitimate inference . . . may be drawn" and is "beyond a mere preponderance of the evidence." In re Discipline of Arabia, 137 Nev. 568, 575, 495 P.3d 1103, 1112 (2021); Albert H. Wohlers & Co. v. Bartgis, 114 Nev. 1249, 1260 n.4, 969 P.2d 949, 957 n.4 (1998). Application to NRS 125C.003(1)(c). The district court identified inconsistencies in Ashley's accounts of the 2013 incident and noted the absence of medical records corroborating the alleged ruptured implant. The Supreme Court held that on this record, the district court did not abuse its discretion in finding the clear-and-convincing standard unmet, and that the presumption therefore did not apply. The majority responded to the dissent by characterizing certain language in the order's "Findings of Fact" section as a summary of Ashley's testimony rather than affirmative findings. Authentication. Under NRS 52.015(1) and NRS 52.025, testimony from a witness with personal knowledge that an item is what it is claimed to be suffices to authenticate. Rodriguez v. State, 128 Nev. 155, 160, 273 P.3d 845, 848 (2012). Ashley's testimony that the photograph fairly and accurately depicted her face after an alleged incident of domestic violence was sufficient. Exclusion was an abuse of discretion, but because the photograph was not included in the appellate record, harmlessness could not be evaluated and was presumed. Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010); Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 600, 172 P.3d 131, 133 (2007). Hearsay/CAD report. NRS 51.035 defines hearsay; NRS 51.065 makes it generally inadmissible; NRS 51.135 admits business records on testimony or affidavit of a custodian or other qualified person. Ashley provided no such foundational witness, and her undeveloped argument that she could herself authenticate the report did not require further consideration. Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987). Best-interest analysis. The district court addressed each factor under NRS 125C.0035(4) and found NRS 125C.0035(4)(k) (domestic violence) favored Ashley by a preponderance, even though the higher clear-and-convincing showing required by NRS 125C.003(1)(c) was not met. Because the presumption did not apply, the court was not required to make protective-arrangement findings under NRS 125C.0035(5)(b). Substantial evidence supported the joint physical custody award. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007). Property and debt division. John's testimony was sufficient to designate the Go Bank/Green Dot accounts as his separate property. Williams, 120 Nev. at 566, 97 P.3d at 1129; Shane, 84 Nev. at 22, 435 P.2d at 755. The Brady attorney-fee promissory note was properly classified as Ashley's separate debt because it was incurred after separation and not for community benefit. Barry v. Linder, 119 Nev. 661, 671, 81 P.3d 537, 543 (2003). John's argument that the living-expenses note should not have been classified as community debt was waived for failure to raise it below. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). The $3,400 equalization payment was supported by substantial evidence. Alimony. Applying NRS 125.150(1)(a) and the factors in NRS 125.150(9)-(10), the district court considered income disparity, education and earning capacity, health, Ashley's homemaker contributions, John's certifications obtained during marriage, the property division, and the nine-year length of the marriage. Kogod v. Cioffi-Kogod, 135 Nev. 64, 66, 439 P.3d 397, 400 (2019); Buchanan v. Buchanan, 90 Nev. 209, 215, 523 P.2d 1, 5 (1974). The $300/month for 36 months award was within the court's discretion. Attorney fees. Under NRS 18.010(2)(b), fees may be awarded when a claim is brought "without reasonable ground or to harass the prevailing party." The district court awarded fees without supported findings that Ashley's reconsideration motion was unreasonable or harassing; non-prevailing alone does not equate to frivolous. The fee award was reversed. Dissent. Justice Bell, joined by Justice Stiglich, would have reversed the custody determination, reasoning that the district court's recited findings — including two TPOs, observed injuries, a punched wall, and forced non-consensual sex during the marriage — established domestic violence under the expansive definition in NRS 33.018(1) by clear and convincing evidence, triggering the NRS 125C.003(1)(c) presumption that the district court then failed to subject to a rebuttal analysis under NRS 47.180.

In plain language

Ashley and John Franklin married in 2012 and have two children. Ashley filed for divorce in 2019. At trial, Ashley testified that John had been violent during the marriage, pointing to a 2013 incident that led to a protective order, a 2019 incident in which she said John ruptured one of her breast implants by bear-hugging her, and other conflict in the home. John denied committing domestic violence, though he acknowledged being charged in 2013 and pleading to the lesser offense of disturbing the peace. The district court entered a divorce decree giving the parents joint physical custody. It found that Ashley had not proven domestic violence by "clear and convincing evidence," which is the standard Nevada law requires before a legal presumption against joint physical custody kicks in. The court also ordered John to pay Ashley $300 per month in alimony for 36 months, classified a loan from Ashley's friend Karen Brady for living expenses as community debt, classified a separate loan for Ashley's attorney fees as Ashley's separate debt, and ordered John to pay $3,400 to equalize the property split. After Ashley asked the court to reconsider its domestic-violence findings, the court denied the motion and ordered Ashley to pay John's attorney fees for opposing it, without giving reasons. The Nevada Supreme Court mostly affirmed. On custody, it held the trial judge did not abuse her discretion when she found Ashley's domestic-violence allegations were not proven by clear and convincing evidence, given inconsistencies in Ashley's testimony and the absence of medical records to corroborate the breast-implant injury. The court emphasized that appellate courts do not re-weigh a trial judge's credibility decisions. The court did find one evidentiary error: the trial judge should have admitted a photograph of Ashley's face that Ashley said showed an injury John caused. Ashley's testimony that the photograph fairly and accurately depicted what she claimed was enough to authenticate it. But because Ashley did not include the photograph in the appellate record, the Supreme Court could not tell whether excluding it changed the outcome and treated the error as harmless. The court agreed with the trial judge's exclusion of computer-aided dispatch (CAD) police-call records as hearsay, because no records custodian or other qualified person testified or provided an affidavit. On the rest of the custody analysis, the Supreme Court found the trial judge properly walked through Nevada's twelve "best interest" factors. The judge actually concluded, by a "more likely than not" standard, that some domestic violence had occurred and weighted that factor in Ashley's favor — but a single favorable factor does not require denying joint custody. On finances, the court upheld the trial judge's distribution of bank accounts to John (based on his testimony that the accounts had no funds), the classification of Ashley's attorney-fee loan as her separate debt (because it was incurred after separation and not for community benefit), and the $3,400 equalization payment. The court rejected John's argument that the living-expenses loan should not have been treated as community debt, holding he had waived that argument by not raising it at trial. The court also upheld the alimony award, finding the trial judge had properly considered the statutory factors. The court reversed only on the attorney-fees award. The trial judge had ordered Ashley to pay John's attorney fees for her unsuccessful reconsideration motion without explaining why the motion was unreasonable or harassing. Losing a motion, by itself, is not enough to justify fees under the statute the trial judge invoked. Two justices, Bell and Stiglich, would have gone further. They wrote that the trial judge's own factual findings — including references to two protective orders, a hole punched in a wall, scratches and a bruise observed by police, and a finding that "John would force Ashley into non-consensual sex" — already established domestic violence by clear and convincing evidence and required the trial judge to apply the rebuttable presumption against joint custody. The majority disagreed, reading some of that language as a summary of Ashley's testimony rather than as the court's own findings.