GARVER VS. GARVER (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review. The court applied abuse-of-discretion review to the custody determinations, quoting Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007): "We have repeatedly recognized the district court's broad discretionary powers to determine child custody matters, and we will not disturb the district court's custody determinations absent a clear abuse of discretion." Rulings supported by substantial evidence - evidence "which a sensible person may accept as adequate to sustain a judgment" - will not be disturbed. Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004). Legal custody. The court noted the statutory presumption that joint legal custody is in the child's best interest when a parent demonstrates "an intent to establish a meaningful relationship with the minor child," NRS 125C.002(1)(b), but that presumption is defeated if the parents cannot "cooperate, communicate, and compromise to act in the best interest of the child." Rivero v. Rivero, 125 Nev. 410, 420, 216 P.3d 213, 221 (2009), overruled on other grounds by Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 984 (2022). Rejecting Kory's contention that the district court relied on a single finding, the court observed the district court found "no ability to cooperate," "an extremely high level of conflict," and that Kory perpetrated domestic violence against Crystal and Tye (citing Monahan v. Hogan, 138 Nev., Adv. Op. 7, 507 P.3d 588, 596 (Ct. App. 2022)). The court further held that the district court's stated findings need not themselves be the substantial evidence; the appellate court considers all evidence in the record, citing Devries v. Gallio, 128 Nev. 706, 711, 290 P.3d 260, 264 (2012), and Rico v. Rodriguez, 121 Nev. 695, 702, 120 P.3d 812, 817 (2005). Both parents' trial testimony evidencing hostility, Kory's refusal to attend coparenting counseling, and his threats during Zoom visits constituted substantial evidence rebutting the joint legal custody presumption. Physical custody. The court acknowledged the joint physical custody preference under NRS 125C.0025(1) and the district court's authority to award sole physical custody where it is in the child's best interest, NRS 125C.0035(1), with mandatory specific findings under NRS 125C.0035(4). The court then addressed each factor Kory disputed: (4)(c) (frequent associations) - the district court's neutral finding was supported because both parents testified they allow their other children relationships with their other parent; (4)(e) (ability to cooperate) - trial testimony already before the court supported the finding without further argument; (4)(f) (mental and physical health) - neutral finding supported where neither parent presented evidence of a diagnosed mental illness or articulated impairment of caregiving, citing Bandiero v. Bandiero, No. 80756, 2020 WL 7396056, at *5 (Nev. Ct. App. Dec. 16, 2020); (4)(h) (relationship with each parent) - Kory did not dispute that K.G. was more bonded to Crystal but offered only an explanation, which is "not what this custody factor is necessarily concerned with"; (4)(j) (abuse or neglect) - the statute "does not only contemplate abuse or neglect of the child" but also of a sibling, and both parents testified to assaults on the other's children. Domestic violence findings. On factor (4)(k), the court rejected Kory's version of the fish-tank incident given firsthand testimony from Crystal and L.E. It held that although NRS 33.018(1) enumerates destruction of private property but not threats to destroy property, NRS 33.018(1)(e) reaches any "knowing, purposeful or reckless course of conduct intended to harass the other person," and the statutory list of examples is nonexhaustive; the threat to puncture Crystal's tires therefore supported the domestic-violence finding. Credibility challenges to Crystal, Tye, and L.E.'s accounts of the January 2020 incident failed because "we do not reweigh credibility determinations on appeal," Ellis, 123 Nev. at 152, 161 P.3d at 244. Kory's challenge to purported harassment-based findings failed because the decree made no such findings, and oral pronouncements "are ineffective for any purpose and cannot be appealed," Rust v. Clark Cty. Sch. Dist., 103 Nev. 686, 689, 747 P.2d 1380, 1382 (1987). Substantial evidence also supported the finding that Kory failed to rebut the presumption against a domestic-violence perpetrator having custody, see NRS 125C.0035(5); NRS 125C.230(1), given undisputed testimony of "nonstop anger and violence," his refusal of counseling, anger displayed in court, and non-completion of batterer's intervention classes. The court rejected Kory's argument for a mutual presumption under NRS 125C.0035(6) and NRS 125C.230(2): the statute refers to violence between the parties, the district court made no finding that Crystal committed domestic violence against Kory, so no "primary aggressor" determination was required; Crystal's 2001 assault admission, nearly 20 years prior, did not outweigh Kory's current violence, particularly where Kory agreed Crystal had completed an 18-month anger management program. The court declined to address factors (a), (b), (d), (g), (i), and (l) because Kory did not meaningfully dispute them, citing Senjab v. Alhulaibi, 137 Nev., Adv. Op. 64, 497 P.3d 618, 619 (2021) ("We will not supply an argument on a party's behalf but review only the issues the parties present."). Parenting time and invited error. The court declined to reach Kory's constitutional, sufficiency, and public-policy challenges to the denial of parenting time because his actions invited any error, quoting Pearson v. Pearson, 110 Nev. 298, 297, 871 P.2d 343, 345 (1994) ("The doctrine of 'invited error' embodies the principle that a party will not be heard to complain on appeal of errors which he himself induced or provoked the court or the opposite party to commit."), and citing Shahrokhi v. Burrow, No. 81978, 2022 WL 1509740, at *3 (Nev. May 12, 2022). The district court had expressed its desire to grant parenting time, but Kory refused to cooperate at trial, failed to attend the follow-up hearing noticed for his benefit, and acknowledged at oral argument that he never filed a motion requesting parenting time despite the decree's invitation. Two additional points from footnotes: the court declined to consider Kory's assertion, outside the record, that his criminal charges were dropped, citing Douglas Disposal, Inc. v. Wee Haul, LLC, 123 Nev. 552, 557 n.6, 170 P.3d 508, 512 n.6 (2007), and noted the district court would generally not be bound by the outcome of the criminal proceedings given the higher criminal burden of proof. It also rejected Kory's Rivero-based argument that the court could have ordered joint legal custody with Crystal holding greater decision-making power, because Rivero does not require that arrangement and a supported ruling will not be overturned merely because the court could have ruled differently.

In plain language

Kory Garver and Crystal Coleman married in Reno in 2017 and had one child together, K.G. In November 2019, police responded to a domestic disturbance at the couple's home: the opinion recounts that Kory grabbed a knife and threatened to puncture Crystal's car tires, intentionally threw a pipe that broke her glass fish tank, and was later charged with battery with the use of a deadly weapon and battery by strangulation after a physical altercation involving Crystal's adult son Tye and Tye's friends. In January 2020, a second incident led to a domestic battery charge against Kory for allegedly striking Tye. Crystal then left Nevada for Oregon with K.G. Kory filed for divorce, asking for sole legal and physical custody. Crystal counterclaimed for sole legal and primary physical custody. After a trial held over Zoom, the district court walked through the "best interest of the child" factors listed in Nevada law (NRS 125C.0035(4)) and found, among other things, that Kory had committed domestic violence against Crystal and Tye. Under Nevada law, a finding of domestic violence creates a presumption - a starting assumption the parent must overcome with evidence - against awarding that parent custody. The court found Kory did not overcome it and awarded Crystal sole legal and sole physical custody. The district court also tried to set up parenting time (visitation) for Kory at trial, but the opinion describes Kory as refusing to cooperate, disparaging the court, and calling its order "dishonorable" and "garbage." The court ordered no contact and scheduled a follow-up hearing specifically to set Kory's parenting time; Kory did not attend and did not respond to the clerk's contact attempts. The final decree denied parenting time but invited Kory to file a motion asking for a schedule. He never did, and instead appealed. The Nevada Court of Appeals affirmed on every point. On legal custody, the court held that the presumption favoring joint legal custody is defeated when parents cannot "cooperate, communicate, and compromise to act in the best interest of the child," and that substantial evidence - including both parents' own trial testimony about their intense mutual conflict - supported the award to Crystal. On physical custody, the court reviewed each best-interest factor Kory disputed and found substantial evidence supporting the district court's findings, including its domestic-violence findings. Notably, the court explained that the domestic-violence statute's list of qualifying acts is not exhaustive: even though threatening to destroy property is not specifically listed, a "knowing, purposeful or reckless course of conduct intended to harass the other person" counts. On parenting time, the court refused to consider Kory's arguments at all under the "invited error" doctrine - the principle that a party cannot complain on appeal about a problem he himself caused. Because Kory's disruptive behavior at trial, his failure to attend the follow-up hearing set for his benefit, and his failure to ever file a motion for parenting time induced the very ruling he challenged, the court declined to review it.