GOLD VS. GOLD (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the child custody decision for an abuse of discretion, but noted that "the district court must have reached its conclusions for the appropriate reasons," citing Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007). Factual findings are affirmed if supported by substantial evidence. Id. at 149, 161 P.3d at 242. Quoting Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015), the court observed that "deference is not owed to legal error, or to findings so conclusory they may mask legal error." The sole consideration in a custody determination is the best interest of the child, per NRS 125C.0035(1) and Davis, 131 Nev. at 451, 352 P.3d at 1143. On the jurisdictional issues, the court dismissed the appeal as to the May 20 and May 21, 2021 orders directing the clerk to sign documents for Judith's travel with the children, holding those orders are not substantively appealable. It cited NRAP 3A(b) and Taylor Constr. Co. v. Hilton Hotels Corp., 100 Nev. 207, 209, 678 P.2d 1152, 1153 (1984), for the principle that appellate jurisdiction generally exists only when authorized by statute or court rule. As to the June 4, 2021 order (entered by Chief Judge Linda Bell) denying disqualification of Judge Harter, the court affirmed because Victor offered no argument challenging it, citing Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) ("Issues not raised in an appellant's opening brief are deemed waived.") and Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). On the merits of the custody modification, the district court had relied on Rivero v. Rivero, 125 Nev. 410, 427, 216 P.3d 213, 225 (2009) (requiring that "[e]ach parent must have physical custody of the child at least 40 percent of the time" for joint physical custody), overruled in part on other grounds by Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 982 (2022), to conclude that the decree's joint physical custody designation was a mistake and to change it to primary physical custody with Judith. The Court of Appeals explained that the Nevada Supreme Court had clarified in Bluestein v. Bluestein, 131 Nev. 106, 113, 345 P.3d 1044, 1049 (2015), that Rivero's "guideline should not be so rigidly applied that it would preclude joint physical custody when the court has determined in the exercise of its broad discretion that such a custodial designation is in the child's best interest" and that it does not "abrogate the court's focus on the child's best interest." Thus, under Bluestein, an arrangement may still be designated joint physical custody even where a parent has custody less than 40 percent of the time, if the district court finds that designation to be in the child's best interest. Because the district court relied solely on the timeshare in the parties' agreed decree to change the custody designation, without considering evidence of the parties' actual timeshare or whether modification was in the children's best interest, and without making findings on those matters, the Court of Appeals held the district court abused its discretion. It reversed and remanded, citing Bluestein (reversing where the district court failed to set forth specific findings that modification to primary physical custody was in the child's best interest) and Davis, 131 Nev. at 451, 352 P.3d at 1143 (requiring "express findings as to the best interest of the child in custody and visitation matters").

In plain language

Victor and Judith Gold divorced in 2019 through a stipulated (agreed) decree that gave both parents joint legal and joint physical custody of their three children. Even though the decree said "joint physical custody," the actual schedule gave Victor the children only from Monday at 11:00 a.m. to Wednesday at 11:00 a.m. each week, with Judith having them the rest of the time. Their oldest child also had "teenage discretion" to choose how long to stay with each parent, as long as he spent at least two days a week with each. In October 2020, Victor filed a motion asking the court to enforce the schedule (he said he had not been seeing the oldest child) and indicated he wanted a "week on/week off" arrangement, which Judith would not agree to. After a hearing, the district court decided the "joint physical custody" label in the decree had been a mistake, because the actual time split did not amount to joint physical custody. The court changed the label to give Judith primary physical custody. In December 2020, Victor filed another motion, this time asking to change the timeshare to week on/week off while keeping the joint custody designation. The court heard that motion in April 2021 and denied his request. Victor appealed. The Court of Appeals split its ruling into three parts. First, it dismissed the portions of the appeal it could not hear: it found it lacked jurisdiction over two orders (dated May 20 and May 21, 2021) allowing Judith to travel with the children, because those orders are not the kind that can be appealed. Second, it affirmed (left in place) the June 4, 2021 order that had denied Victor's request to disqualify the judge, because Victor did not make any argument about it in his appeal, and unargued issues are treated as waived. Third, and most importantly, it reversed the order changing custody to primary physical custody with Judith. The court explained that when deciding custody, the only thing that matters is the best interest of the child. Because the district court had relied only on the written schedule to switch the custody label, without looking at how the parents actually shared time or whether the change was in the children's best interest, and without making findings on those points, the appellate court concluded the district court abused its discretion. It sent the case back for further proceedings.