GENNARDO VS. GENNARDO (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's custody and relocation determinations for abuse of discretion. "Appellate courts 'will not disturb the district court's custody determinations absent a clear abuse of discretion.'" Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). Relocation decisions are likewise reviewed for abuse of discretion. Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1227 (2004). An abuse of discretion occurs "when a district court's decision is not supported by substantial evidence or is clearly erroneous." Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018). Factual findings are upheld if supported by substantial evidence, Ellis, 123 Nev. at 149, 161 P.3d at 242, but "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). The court must also be satisfied the determination "was made for appropriate reasons." Rico v. Rodriguez, 121 Nev. 695, 701, 120 P.3d 812, 816 (2005). On the custodial preference, the court applied the joint physical custody framework. Under NRS 125C.0025(1)(b), when a parent demonstrates an intent to establish a meaningful relationship with the child whose efforts were frustrated by the other parent, there is a preference favoring joint custody. "Joint physical custody is the first alternative a court should consider when deciding custody. If such an arrangement is not in the best interest of the child, the court may then order primary physical custody." Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 286 (Ct. App. 2023); see also NRS 125C.003(1)(a)-(c). When denying joint physical custody, the court must "state in its decision the reason" under NRS 125C.0035(3)(a). The decree must tie the child's best interest, as informed by specific findings on the NRS 125C.0035(4) factors, to the custody determination. Davis, 131 Nev. at 451, 352 P.3d at 1143. The court held the district court "did not strictly follow this process and that was error," but concluded the error did not affect the result because the district court explained why it did not award joint physical custody and its decision was supported by substantial evidence. The court declined to reweigh evidence or reassess credibility. Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000); Ellis, 123 Nev. at 152, 161 P.3d at 244; Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004). On the de facto custodial arrangement, the court applied Roe's distinction between primary and sole physical custody. A district court abuses its discretion when it "improperly characterize[s] its custodial award as primary physical custody when it [is] in actuality sole physical custody." Roe, 139 Nev., Adv. Op. 21, 535 P.3d at 281. "[S]ole physical custody is a custodial arrangement where the child resides with only one parent and the noncustodial parent's parenting time is restricted to no significant in-person parenting time." Id. at 287. The court found that giving Doug total discretion over Natalie's time, restricting her to supervised visits, and refusing to set an evidentiary hearing or timeshare schedule created a de facto sole physical custody order for which the district court "never made findings throughout the one-year period that justified" it. See id. at 295. The court held this reliance, and the disregard of Natalie's 16 years of primary caretaking, "were clearly erroneous." Applying the harmless-error standard, however — reversal is warranted only where an error affects substantial rights such that "a different result might reasonably have been reached" but for the error, McClendon v. Collins, 132 Nev. 327, 333, 372 P.3d 492, 495-96 (2016); Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010) — the court concluded the abuse of discretion did not undermine the custody determination. The court also cited SCR 251 regarding the expectation that custody matters be resolved within six months absent unforeseeable circumstances with specific findings. On temporary relocation, the court relied on NRS 125C.0045(1)(a), which permits a court to "at any time during the minority of the child, make such an order for the custody, care, education, maintenance and support of the minor child as appears in his or her best interest." See In re Temporary Custody of Five Minor Children, 105 Nev. 441, 443, 777 P.2d 901, 902 (1989); Richmond v. Russell, No. 64397, 2015 WL 9596960 (Nev. Dec. 30, 2015) (Order of Affirmance); Shahrokhi v. Eighth Judicial Dist. Court, No. 79336-COA, 2019 WL 5823131 (Nev. Ct. App. Nov. 6, 2019) (recognizing that a district court may grant a temporary relocation order under "exigent circumstances"). The best interests of the child are the paramount concern when removing a child from the jurisdiction. Schwartz v. Schwartz, 107 Nev. 378, 382, 812 P.2d 1268, 1271 (1991). Given Doug's role as sole provider, the elimination of his Las Vegas position, and his need to start a job in another state, and because Natalie did not cogently argue why the court lacked authority (see Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006)), the court held no abuse of discretion occurred in permitting the temporary relocation before a hearing. On permanent relocation, the court applied the multi-pronged analysis requiring the moving party to satisfy the threshold test of NRS 125C.007(1) and then to address the NRS 125C.007(2) relocation factors, with the burden of proof on the moving party under NRS 125C.007(3). Monahan v. Hogan, 138 Nev. 58, 59, 507 P.3d 588, 589-90 (Ct. App. 2022); Potter v. Potter, 121 Nev. 613, 618, 119 P.3d 1246, 1250 (2005). The proper place to present evidence is an evidentiary hearing, and a court may not decide such a matter on "contradictory sworn pleadings [and] arguments of counsel." Arcella v. Arcella, 133 Nev. 868, 872, 407 P.3d 341, 346 (2017) (quoting Mizrachi v. Mizrachi, 132 Nev. 666, 678, 385 P.3d 982, 990 (Ct. App. 2016)); see DCR 13(6); EDCR 5.506(g). Because the district court made its NRS 125C.007(1) findings and incorporated its temporary relocation order into the final decree without taking evidence, the "findings" rested on arguments of counsel and motion exhibits and were insufficient. See Myers v. Haskins, 138 Nev., Adv. Op. 51, 513 P.3d 527, 532 (Ct. App. 2022). The court held this was an abuse of discretion. On due process, the court held that permanent relocation implicates Natalie's fundamental parental interest. "[D]ue process of law [is] guaranteed by the Fourteenth Amendment of the United States Constitution and Article 1, Section 8(5) . . . of the Nevada Constitution." Rico, 121 Nev. at 702-03, 120 P.3d at 817. Child custody decisions implicate due process rights. Blanco v. Blanco, 129 Nev. 723, 731, 311 P.3d 1170, 1175 (2013). Due process demands notice before such a right is affected, Wiese v. Granata, 110 Nev. 1410, 1412, 887 P.2d 744, 745 (1994), and a "party threatened with loss of parental rights must be given opportunity to disprove evidence presented." Gordon v. Geiger, 133 Nev. 542, 546, 402 P.3d 671, 674 (2017) (quoting Wallace v. Wallace, 112 Nev. 1015, 1020, 922 P.2d 541, 544 (1996)). Because the court adjudicated the relocation motion and closed the case without receiving the evidence it had said was necessary, it deprived Natalie of the opportunity to challenge Doug's claims and present her own evidence, violating her due process rights. The court also addressed and rejected Natalie's request to reassign the case to a different judge on remand, presuming judges are unbiased and finding no showing of the "deep-seated favoritism or antagonism" necessary for disqualification. Millen v. Eighth Judicial Dist. Court, 122 Nev. 1245, 1254, 148 P.3d 694, 701 (2006); Canarelli v. Eighth Judicial Dist. Court, 138 Nev. 104, 105, 109, 506 P.3d 334, 337, 339 (2022); In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988); Cameron v. State, 114 Nev. 1281, 1283, 968 P.2d 1169, 1171 (1998). The appeal as to D.G., who had attained the age of majority, was deemed moot. See Davis v. Ewalefo, 131 Nev. 445, 452, 352 P.3d 1139, 1143 (2015).

In plain language

Natalie and Doug Gennardo married in 2002 and had three children. Doug filed for divorce in May 2019. After Doug moved out in December 2019, the parents tried to share custody, but there was significant conflict. According to the opinion, Natalie struggled with extreme alcohol abuse and sometimes exhibited violent behavior. After a confrontation between the parents in April 2020, Doug asked the court for primary physical custody. Natalie agreed to attend a 30-day treatment program in Arizona. While she was away, the court put a temporary arrangement in place giving Doug primary physical custody and leaving contact between Natalie and the children at Doug's discretion. A therapist was enlisted to try to repair Natalie's relationship with the children, which had seriously deteriorated. The children reported not wanting to see her. For roughly a year, Natalie could see the children only under the therapist's supervision or when Doug allowed it, and the court did not set a parenting-time schedule or hold a hearing on the temporary arrangement during that time. Because the case had complicated financial issues that delayed the trial, the court eventually decided in February 2021 to resolve custody before the trial on money matters. It held three custody hearings in April and May 2021, heard testimony, and awarded the parents joint legal custody with primary physical custody to Doug. It made findings on each of the statutory factors that guide a child's best interest. Separately, Doug's employer, Marriott, cut his pay early in the pandemic and told him in June 2021 that his Las Vegas position would be eliminated. In July, Marriott offered him a comparable job in Texas. Doug accepted and asked the court to let the children move with him. In August 2021, the court allowed a temporary move ahead of a promised hearing meant to permanently decide the relocation issue. That hearing was never held. Instead, after the trial on the financial matters, the court entered a final decree making the relocation permanent. Natalie asked the court to reconsider because the promised hearing never happened; the court denied her request. On appeal, the Court of Appeals reached different conclusions on the different issues. On custody, the court said the trial judge did not strictly follow Nevada's process favoring joint physical custody and may have shifted the burden of proof onto Natalie, which was an error. But the court concluded the custody decision was still supported by substantial evidence and adequately explained, so it did not reverse the custody award. The court also found that the trial judge had improperly created what amounted to a de facto sole physical custody arrangement — giving Doug complete control over Natalie's time with the children and refusing to set a schedule or a hearing for about a year — and then gave too much weight to that one year while disregarding Natalie's 16 years as the children's primary caretaker. The court called this clearly erroneous but concluded it did not change the custody result because Natalie did not show a different outcome was reasonably likely without the error. On the temporary relocation, the court held the trial judge acted within its discretion in allowing the children to move temporarily before a hearing, given the exigent circumstances of Doug being the family's sole provider and needing to start a job in another state. On the permanent relocation, however, the court held that the trial judge abused its discretion by making it permanent without ever holding the evidentiary hearing it had repeatedly promised. Because no actual evidence was taken, the court's relocation "findings" rested only on lawyers' arguments and motion exhibits, which the appellate court found insufficient. The court further held that this deprived Natalie of her constitutionally protected due process rights, because she was never given the opportunity to challenge Doug's claims and present her own evidence. The Court of Appeals affirmed the custody decision, reversed the permanent relocation, and sent the case back for a prompt hearing on relocation. It noted the temporary relocation order may remain in effect while that hearing is pending.