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); Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007). Evidentiary rulings are reviewed for abuse of discretion. Klabacka v. Nelson, 133 Nev. 164, 174, 394 P.3d 940, 949 (2017). Divorce-decree property dispositions and alimony awards are reviewed for abuse of discretion. 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); Kogod v. Cioffi-Kogod, 135 Nev. 64, 66, 439 P.3d 397, 400 (2019). Attorney fee awards are reviewed for abuse of discretion. Rivero, 125 Nev. at 440-41, 216 P.3d at 234. Domestic violence and the joint-custody presumption. NRS 125C.0025(1)(b) creates a preference for joint physical custody where a parent has shown an intent to establish a meaningful relationship with the child. NRS 125C.003(1)(c) presumes joint physical custody is not in the children's best interest where clear and convincing evidence shows a parent has committed domestic violence. The Court reaffirmed that a victim's testimony alone may satisfy the clear-and-convincing standard, citing Keeney v. State, 109 Nev. 220, 229, 850 P.2d 311, 317 (1993), but that credibility determinations are not reweighed on appeal, 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). Applying In re Discipline of Arabia, 137 Nev. 568, 575, 495 P.3d 1103, 1112 (2021), and Albert H. Wohlers & Co. v. Bartgis, 114 Nev. 1249, 1260 n.4, 969 P.2d 949, 957 n.4 (1998), the Court held that material inconsistencies in Ashley's testimony, lack of corroborating medical records, and generalized allegations supported the district court's finding that the clear-and-convincing standard was not met. In a footnote, the majority characterized certain narrative passages in the order's "Findings of Fact" section - including statements about increasing violence and forced non-consensual sex - as a summary of Ashley's testimony rather than independent findings. Authentication of photographs. Under NRS 52.015(1), authentication requires a showing sufficient to support a finding that the matter is what its proponent claims. NRS 52.025 permits authentication through testimony of a witness with personal knowledge. Citing Rodriguez v. State, 128 Nev. 155, 160, 273 P.3d 845, 848 (2012), the Court held that Ashley's testimony that the photo "fairly and accurately depicted" her face after John struck her was sufficient authentication, and the district court abused its discretion in excluding it. The error was harmless, however, because the photo was not in the appellate record. 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 - business records. Hearsay is defined in NRS 51.035 and is generally inadmissible under NRS 51.065. NRS 51.135's business-records exception requires testimony or affidavit from a custodian or other qualified person. Because Ashley supplied none, the district court did not abuse its discretion in excluding the CAD report. The Court declined to consider Ashley's argument that her own recognition of the document sufficed, citing Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987). Best-interest analysis. NRS 125C.0035(4) lists the 12 best-interest factors; NRS 125C.0035(4)(k) addresses domestic violence. The district court found, by a preponderance, that NRS 125C.0035(4)(k) favored Ashley while finding the higher clear-and-convincing standard for NRS 125C.003(1)(c) was not met. The Court held the trial court properly weighed all factors and that one factor favoring a parent does not foreclose joint custody. NRS 125C.0035(5)(b)'s adequate-protection findings were not required because the clear-and-convincing threshold under NRS 125C.003(1)(c) was not crossed. Property and debt. The Court affirmed the assignment of empty Go Bank/Green Dot accounts to John based on his testimony, citing Williams and Shane. As to the Brady attorney-fees promissory note, the Court relied on Barry v. Linder, 119 Nev. 661, 671, 81 P.3d 537, 543 (2003) (superseded by rule on other grounds as stated in LaBarbera v. Wynn Las Vegas, LLC, 134 Nev. 393, 395, 422 P.3d 138, 140 (2018)), holding that a loan acquired post-separation and not for the community's benefit was properly classified as separate debt. John's preliminary-injunction-violation argument regarding the living-expenses loan was waived under 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. The Court applied NRS 125.150(1)(a), (9), and (10), and Kogod and Buchanan v. Buchanan, 90 Nev. 209, 215, 523 P.2d 1, 5 (1974). Substantial evidence - income disparity, Ashley's homemaker contribution, John's earning improvements, length of marriage, lifestyle, and child support obligations - supported the award of $300/month for 36 months. Attorney fees on reconsideration. NRS 18.010(2)(b) authorizes fees where a claim is brought "without reasonable ground or to harass the prevailing party." The district court awarded fees without supported findings of unreasonableness or harassment, and the Court held that not prevailing on a reconsideration motion is not, alone, sufficient to support fees under NRS 18.010(2)(b). Reversed.

In plain language

Ashley and John Franklin married in 2012 and have two children. Ashley filed for divorce in 2019. At trial, the central dispute was whether John had committed domestic violence against Ashley. If so, Nevada law would presume that joint physical custody is not in the children's best interest. Ashley described several incidents, including a 2013 episode that led to a protective order and a 2019 bear-hug she said ruptured a breast implant. John denied domestic violence but admitted he had pleaded down to disturbing the peace as to the 2013 incident. The district court found that Ashley's testimony was not credible enough to meet the "clear and convincing evidence" standard required to trigger the presumption against joint physical custody. The court instead awarded joint physical custody, ordered John to pay $300 per month in alimony for 36 months, divided the parties' assets and debts, and assigned a loan from Ashley's friend Karen Brady (used for living expenses) to the community while assigning a separate loan for Ashley's attorney fees solely to Ashley. After Ashley moved for reconsideration, the court denied it and awarded John $2,500 in attorney fees without explaining why. The Nevada Supreme Court mostly affirmed. It agreed that the district court could permissibly find Ashley's domestic violence allegations did not meet the clear-and-convincing standard, given inconsistencies in her account and missing corroborating evidence (such as medical records of the alleged ruptured implant surgery). The Court agreed the district court should not have excluded a photograph of Ashley's face that she said showed an injury caused by John - her testimony alone was enough to authenticate it - but because the photo was not in the appellate record, the Court could not say its exclusion harmed Ashley, so the error was harmless. The Court agreed that police computer-aided dispatch (CAD) reports were properly excluded as hearsay because no records custodian or qualified person authenticated them. On finances, the Court upheld the trial judge's decisions: prepaid bank accounts John said were empty and unused were properly assigned to him; the attorney-fees loan was properly assigned solely to Ashley because it was incurred after separation and not for the community's benefit; the living-expenses loan was properly assigned to the community (and John waived his contrary argument by not raising it at trial); and the $3,400 equalization payment to Ashley was supported by the record. The Court also upheld the alimony award. The one place the Court reversed was the attorney-fee award against Ashley for filing her motion for reconsideration. The trial court had given no explanation, and losing a motion - by itself - does not show that the motion was frivolous or filed to harass. Justice Bell concurred in most of the order but dissented on the domestic violence question, writing that the district court's own findings of fact - including findings that John forced Ashley into non-consensual sex, punched a hole in the wall, and coerced her into dropping charges - already amounted to clear and convincing evidence of domestic violence, and that the district court applied too high a standard when it declined to trigger the statutory presumption against joint physical custody.