FREELOVE VS. FREELOVE

Statutes cited

Key holdings

Practitioner summary

**Standard of review.** The court reviews child support orders for an abuse of discretion. Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 985 (2022). A district court abuses its discretion when its findings are not supported by substantial evidence. Rivero v. Rivero, 125 Nev. 410, 431, 216 P.3d 213, 228 (2009), overruled in part on other grounds by Romano. Deference "is not owed to legal error, or to findings so conclusory they may mask legal error." Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). **Waiver.** Lynsey invoked the rule that "[a] point not urged in the trial court, unless it goes to the jurisdiction of that court, is deemed to have been waived and will not be considered on appeal." Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). NRS 3.405(2) permits appointment of masters in child support cases; NRS 3.405(4) and NRS 425.3844(3)(a) require objections to the findings and recommendations within 10 days. The court analogized to Siragusa v. Siragusa, 108 Nev. 987, 843 P.2d 807 (1992), which construed the parallel alimony provision, NRS 125.005(4). The Siragusa court held that failure to object to a referee's report prevented a party from challenging the report in district court but did not prevent an appeal of the district court's order adopting the report. Siragusa, 108 Nev. at 991, 843 P.2d at 810. Applying the principle that statutes are interpreted in harmony with one another, see Pub. Emps.' Ret. Sys. of Nev. v. Gitter, 133 Nev. 126, 131, 393 P.3d 673, 679 (2017), the court concluded NRS 3.405 and NRS 425.3844 should likewise be read to allow an appeal even where the master's findings were not objected to. The court also invoked the policy of deciding cases on their merits, Banks v. Heater, 95 Nev. 610, 612, 600 P.2d 245, 246 (1979), while noting the "best procedure is for the parties to object below." **Modification framework.** NRS 125B.145 governs review and modification of child support orders. Under NRS 125B.145(4), "a change of 20 percent or more in the gross monthly income of a person who is subject to an order for the support of a child shall be deemed to constitute changed circumstances requiring a review for modification" of the order. Under Rivero, a mandatory "review" requires the factfinder to consider the "same factual circumstances" relevant to the initial order, and the requirement to "expressly set forth its findings of fact" applies even when denying a motion to modify. Rivero, 125 Nev. at 432, 438, 216 P.3d at 228, 232. Where a factfinder deviates from the statutory formula, it "must set forth specific findings of fact stating the basis for the deviation and what the support would have been absent the deviation," and this applies "[e]ven if the record reveals the district court's reasoning for the deviation." Id. at 438, 216 P.3d at 232. **Application.** Justin's income decreased by about 33 percent, triggering a mandatory review under NRS 125B.145(4). The review required the master to consider the guidelines established by the Administrator of the Division of Welfare and Supportive Services, see NRS 125B.080, and the obligor's ability to pay, see NAC 425.150(1)(h). The master was required to review, but not to modify, the order. See Rivero, 125 Nev. at 431-32, 216 P.3d at 228. The master's conclusory finding of no significant change of circumstances offered no findings of fact supported by substantial evidence. Under NAC 425.140(1)(a), an obligor earning $6,000 or less in gross monthly income owes 16 percent of gross monthly income, which would have reduced the base obligation from $750 to $555; leaving the obligation at $750 "effectively act[ed] as an upward deviation" without the specific findings required by NAC 425.150(1) and Rivero. See also Anastassatos v. Anastassatos, 112 Nev. 317, 320, 913 P.2d 652, 654 (1996). Because the findings were "so conclusory that they may mask legal error," see Davis, 131 Nev. at 450, 352 P.3d at 1142, the court held the master abused his discretion, reversed, and remanded for a new hearing. **Due process / interest and penalties.** The court held Justin waived his due process challenge to interest and penalties because he did not raise it before the master and failed to file a motion to set aside the order under NRCP 60(b). See Old Aztec, 97 Nev. at 52, 623 P.2d at 983. In a footnote addressing the merits in the alternative, the court noted that "[t]he key elements of due process are notice and hearing," Kochendorfer v. Bd. of Cty. Comm'rs, 93 Nev. 419, 424, 566 P.2d 1131, 1134 (1977), that Justin was present with counsel at the 2019 hearing, and that he provided no cogent argument or authority, see Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006); the court also observed it was not well-suited to make factual determinations in the first instance, see Ryan's Express Transp. Servs., Inc. v. Amador Stage Lines, Inc., 128 Nev. 289, 299, 279 P.3d 166, 172 (2012). The court likewise deemed waived Justin's argument that the master failed to make findings regarding interest and penalties; in the alternative it noted NRS 125B.140(2)(c) requires interest on arrears "unless the court finds that the responsible parent would experience an undue hardship," and does not impose an affirmative duty to state that no hardship exists. Finally, the court held Justin's challenge to the October-to-November 2019 arrears was not properly before it because he failed to appeal the April 2020 amended order or move to set it aside under NRCP 60(b).

In plain language

Justin and Lynsey Freelove were married for a little over a year and share one child. After the divorce, Lynsey was given primary physical custody of the child and lives in Nevada, while Justin lives in Idaho and shares joint legal custody. Before moving, Justin filed a motion apparently seeking primary physical custody and permission to relocate with the child. After hearings, his child support obligation was set at $750 per month in November 2019, and he was ordered to pay support starting in October 2019, when Lynsey was apparently awarded primary physical custody. Justin says he did not receive notice of the 2019 order, which is why he did not initially pay. The record does not show whether the order was actually served on him. Later, the district court entered an amended order clarifying that his obligation began in October 2019. Justin acknowledged he knew about this amended order and began making payments after receiving it, but he contested the past-due amount, arguing he had not been notified of the original 2019 order. By June 2020, he owed $6,031.59 in arrears, interest, and penalties. In February 2021, Justin got a new job in Idaho that cut his gross monthly income by about 33 percent. He asked the court to lower his child support to match his new, lower income. At the hearing before the court master, neither Justin nor Lynsey had a lawyer. The master decided there were no significant changed circumstances that would justify changing the support amount. Neither party filed a formal objection, so the master's decision became the court's judgment, and Justin appealed. The Court of Appeals ruled in Justin's favor on one point and against him on another. First, it rejected Lynsey's argument that Justin gave up (waived) his right to appeal by not objecting to the master's decision below. The court explained that failing to object only prevents you from challenging the master's report in the district court; it does not stop you from appealing to a higher court. Second, on the merits, the court agreed with Justin that the master made a mistake. Because Justin's income dropped by more than 20 percent, Nevada law required the master to conduct a review of the child support order. The master's one-sentence conclusion that there was "not a significant change of circumstances" did not include the specific factual findings the law requires. Importantly, the court noted that the master was required to review the order but was not required to actually change it. Because the master left the support at $750 when the guideline calculation would have produced $555, that had the effect of an "upward deviation" from the required amount without the necessary findings. So the court reversed and sent the case back for a new hearing. Third, the court rejected Justin's due process arguments about the interest and penalties on his arrears. It found he waived these arguments because he did not raise them before the court master and did not file a motion to set aside the earlier order. The court also noted he was present at the 2019 hearing with his lawyer, and that he failed to appeal the amended order clarifying the October 2019 start date.