GOLD VS. GOLD (CHILD CUSTODY)

Key holdings

Practitioner summary

This appeal arose from the denial of Victor's motion seeking NRCP 60(b) relief from the district court's order modifying the parties' custodial designation from joint physical custody to primary physical custody for Judith, or alternatively, relief from both that order and the decree's timeshare provision on a mutual-mistake theory. Because his appeal in Docket No. 83078-COA divested the district court of jurisdiction over issues pending on appeal, Victor had asked the district court to certify its intent to grant relief so he could seek a limited remand under Huneycutt v. Huneycutt, 94 Nev. 79, 80-81, 575 P.2d 585, 585-86 (1978) and Foster v. Dingwall, 126 Nev. 49, 228 P.3d 458 (2010). The district court denied the motion, concluding it was obligated to designate the arrangement as primary physical custody for Judith based on the parties' timeshare. The Court of Appeals resolved the appeal on mootness grounds. It noted that in Docket No. 83078-COA it had reversed the order modifying the custodial designation - see Gold v. Gold, No. 83078-COA, 2022 WL 2387037, at *2 (Nev. Ct. App. June 30, 2022) - because the district court failed to consider evidence of the parties' actual timeshare, to evaluate the children's best interest, and to make findings. Given that reversal during the pendency of the present appeal, the court held the appeal moot to the extent Victor sought to set aside the modification order under NRCP 60(b), citing Personhood Nev. v. Bristol for the proposition that a controversy must be present throughout the proceedings and that "even though a case may present a live controversy at its beginning, subsequent events may render the case moot," and NCAA v. Univ. of Nev., Reno for the proposition that "[a] moot case is one which seeks to determine an abstract question which does not rest upon existing facts or rights." The court further held that Victor's challenge to the denial of his request to set aside the decree's custodial timeshare provision was "likewise moot given that his request was premised on the district court's prior modification of the parties' custodial designation." The appeal was dismissed. The panel consisted of Judges Gibbons, Tao, and Bulla.

In plain language

Victor and Judith Gold divorced under a stipulated decree - an agreement both parties signed and the court adopted. The decree said they would share "joint physical custody" of their three children, but the actual weekly schedule gave Victor the children only from Monday at 11:00 a.m. until Wednesday at 11:00 a.m., with Judith having them the rest of each week. Disputes arose after the divorce, and Victor asked the court to change the schedule to alternating weeks. The district court refused and instead changed the custody label to give Judith "primary physical custody," reasoning that the joint-custody label in the decree was a mistake because the schedule did not actually amount to joint custody. Victor appealed that decision, and in an earlier appeal (Docket No. 83078-COA), the Court of Appeals reversed, holding that the district court had failed to consider evidence of the parties' actual schedule, to evaluate whether the change served the children's best interest, or to make findings on those points. While that first appeal was still pending, Victor filed a new motion in the district court asking it to undo the custody change - either by setting aside the modification order under NRCP 60(b) (a court rule allowing relief from certain orders) or by setting aside both that order and the decree's schedule provision on the theory that both parents had made a mutual mistake when they agreed to it, believing they were agreeing to joint physical custody. Because the pending appeal limited the district court's power to act, Victor asked the court to certify its intent to grant relief under a procedure recognized in Nevada case law. The district court denied the motion. In this second appeal, the Court of Appeals dismissed the case as moot. "Moot" means there is no longer a live dispute for the court to resolve. Because the court had already reversed the order modifying custody in the earlier appeal, there was nothing left to set aside under NRCP 60(b). And Victor's request to undo the decree's schedule provision was premised on that same (now-reversed) modification order, so that challenge was moot as well.