GARCIA VS. SHAPIRO (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court reviewed evidentiary, custody, and child-support rulings for abuse of discretion, applying the standard that a court abuses its discretion when "no reasonable judge could reach a similar conclusion under the same circumstances." Leavitt v. Siems, 130 Nev. 503, 509, 330 P.3d 1, 5 (2014); see Abid v. Abid, 133 Nev. 770, 772, 406 P.3d 476, 478 (2017). On the settlement-negotiations claims, the court held Garcia identified no authority that a court admits settlement evidence by failing to strike an earlier motion containing such negotiations, declining to consider the inadequately supported argument under Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). It further reasoned that motions and their contents are not necessarily evidence, citing Mizrachi v. Mizrachi, 132 Nev. 666, 678 n.12, 385 P.3d 982, 990 n.12 (Ct. App. 2016), and EDCR 5.205(g), and noted Garcia's failure to satisfy NRAP 28(e). As to trial testimony, the court found no evidence was admitted because objections were sustained (citing Floyd v. Fid. Union Cas. Co. and Stultz v. Bellagio, LLC), and the one instance not sustained was cured when the court sua sponte struck the information (Bongiovi v. Sullivan, 122 Nev. 556, 576, 138 P.3d 433, 447 (2006)). The court added that Garcia failed to show prejudicial error affecting a substantial right under NRS 47.040 and Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010), and invoked the presumption under Dep't of Highways v. Campbell, 80 Nev. 23, 33, 388 P.2d 733, 738 (1964), that a court sitting without a jury disregards improper evidence when other substantial evidence supports its findings. On the custody schedule, the court applied the best-interest standard of NRS 125C.0035(1) and reviewed for abuse of discretion under Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996), refusing to set aside a determination supported by substantial evidence under Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007), and presuming proper exercise of discretion per Culbertson v. Culbertson, 91 Nev. 230, 233, 533 P.2d 768, 770 (1975). The court rejected Garcia's reading of Davis v. Ewalefo, 131 Nev. 445, 452, 352 P.3d 1139, 1143 (2015), holding that Davis requires specific factual findings sufficient to provide an "adequate explanation" but does not require the court to assign weight to each individual best-interest factor. The court found the district court had considered and analyzed the conflict factor and made supporting findings under the nonexhaustive list in NRS 125C.0035(4). It further held Garcia failed to demonstrate prejudicial error, citing McClendon v. Collins, 132 Nev. 327, 333, 372 P.3d 492, 495-96 (2016), NRCP 61, the rule against reweighing evidence in Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000), and the single-factor analyses in Rico v. Rodriguez, 121 Nev. 695, 702, 120 P.3d 812, 817 (2005), and Monahan v. Hogan, 138 Nev., Adv. Op. 7, 507 P.3d 588, 596 (Ct. App. 2022). On the income calculation, the court reviewed for abuse of discretion under Hargrove v. Ward, 138 Nev., Adv. Op. 14, 506 P.3d 329, 331 (2022), and described Nevada's child-support framework under NRS 125B.080(1), NAC 425.140, NAC 425.120(b), and the definition of gross income in NAC 425.025 (including the nonexhaustive inclusions of NAC 425.025(1) and the exclusions of NAC 425.025(2)). The court held the district court did consider the bank deposits but permissibly declined to impute income, given conflicting evidence, and that appellate courts do not second-guess resolution of conflicting evidence (Primm v. Lopes, 109 Nev. 502, 507, 853 P.2d 103, 106 (1993)) or reweigh evidence and credibility (Ellis, 123 Nev. at 152, 161 P.3d at 244; Quintero, 116 Nev. at 1183, 14 P.3d at 523). It noted the uncertainty of whether pandemic unemployment assistance could be considered, comparing NAC 425.025(2)(f) with NAC 425.025(1)(f), and found substantial evidence supported the award under Miller v. Miller, 134 Nev. 120, 125, 412 P.3d 1081, 1085 (2018). On child support arrears, the court reiterated the abuse-of-discretion standard (Hargrove) and held that abuse occurs where a court bases its decision on a clearly erroneous factual determination or disregards controlling law (MB Am., Inc. v. Alaska Pac. Leasing, 132 Nev. 78, 88, 367 P.3d 1286, 1292 (2016)), where a finding is clearly erroneous (Unionamerica Mortg. & Equity Tr. v. McDonald, 97 Nev. 210, 211-12, 626 P.2d 1272, 1273 (1981), quoting United States v. Gypsum Co., 333 U.S. 364, 395 (1948)), or where a court fails to exercise discretion it possesses (Willmes v. Reno Mun. Court, 118 Nev. 831, 835, 59 P.3d 1197, 1200 (2002)). Under NRS 125B.030, which the court read as permissive per Ewing v. Fahey, 86 Nev. 604, 607, 472 P.2d 347, 349 (1970), district courts have discretion to award arrears. The record - Garcia's countermotion, pretrial memorandum, admitted "Constructive Arrears" exhibit, trial testimony, and closing brief - contradicted the district court's finding that she had not requested arrears. Declining to make factual findings in the first instance (Ryan's Express Transp. Servs., Inc. v. Amador Stage Lines, Inc., 128 Nev. 289, 299, 279 P.3d 166, 172 (2012); Cranesbill Tr. v. Wells Fargo Bank, N.A., 136 Nev. 76, 82, 459 P.3d 227, 232 (2020); Miller, 134 Nev. at 125, 412 P.3d at 1085), the court reversed and remanded for the district court to exercise its discretion.

In plain language

Nechole Garcia and Evgeny Shapiro were once a couple and had one child together, A.G.-S., who was later diagnosed with autism spectrum disorder. When their relationship ended, they could not agree on how to share custody or how much child support should be paid, so the case went to court. After a two-day trial, the district court decided the parenting schedule, set Garcia's child support obligation, and dealt with requests about past-owed support. Garcia appealed, raising several complaints about how the trial judge handled the case. The Court of Appeals rejected most of Garcia's arguments but agreed with one. First, Garcia argued the judge improperly let in evidence about settlement talks between the parties. The court disagreed. It explained that the materials she pointed to were never actually admitted as evidence. Arguments in motions are not evidence, and each time Shapiro tried to ask her about negotiation-related matters at trial, her objections were sustained (upheld) or the information was struck (removed) from the record. Because nothing was admitted, there was no error - and even if there had been, she never showed it harmed her case. Second, Garcia argued the judge failed to properly weigh the high level of conflict between the parents when choosing a parenting schedule. The court found that the judge had, in fact, considered the conflict, expressly noting it was high, and had weighed Garcia's point (that her schedule would mean fewer exchanges and possibly less conflict) against other factors. The judge picked Shapiro's proposed schedule as being in the child's best interest, and the court found enough evidence to support that decision - including that the parents had identical work schedules and that Shapiro's schedule would let A.G.-S. spend more time with her half-siblings, with whom she had a close bond. Third, Garcia argued the judge miscalculated Shapiro's income for child support by relying on his most recent tax return instead of bank deposits she said totaled more than $90,000 in 2020. The court found the judge did consider those bank deposits but concluded that deposits do not automatically equal income, especially since Garcia asked Shapiro about only one deposit (which he said came from pandemic-related unemployment assistance). Faced with conflicting evidence, the judge was entitled to rely on the tax returns, disclosure forms, and testimony, and the appeals court would not second-guess that. Finally, Garcia argued the judge wrongly refused to decide her request for child support arrears (past-due support) by mistakenly stating she had not asked for any. Here the court agreed with Garcia. The record showed she repeatedly requested "constructive" arrears - in her countermotion, her pretrial memorandum, an admitted exhibit, and her closing brief - claiming Shapiro owed $16,638.72. Because the judge declined to rule based on a mistaken belief that she never asked, the court reversed that portion and sent the matter back for the district court to actually decide the arrears request. Everything else was affirmed.