GOLD VS. GOLD (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's child custody modification order for abuse of discretion, citing Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 284 (Ct. App. 2023), and reviewed the denial of the NRCP 59(e) motion to alter or amend for abuse of discretion, citing AA Primo Builders, LLC v. Washington, 126 Nev. 578, 589, 245 P.3d 1190, 1197 (2010). This appeal followed remand from Gold v. Gold, Docket No. 83078-COA, 2022 WL 2387037 (Nev. Ct. App. Jun. 30, 2022), in which the court had reversed the portion of the district court's decision modifying the physical custody designation because the district court failed to evaluate the best interest factors under NRS 125C.0035. On remand, the district court held an evidentiary hearing and expressly analyzed the best interest factors under NRS 125C.0035(4), including NRS 125C.0035(4)(c), (d), (e), (f), (g), (j), and (k), ultimately awarding Judith primary physical custody. Victor's principal appellate argument invoked Romano v. Romano, 138 Nev. 1, 9, 501 P.3d 980, 986 (2022), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op. 43, 535 P.3d 1167, 1171 (2023), which requires a movant to show both "there has been a substantial change in circumstances affecting the welfare of the child" and that "the modification would serve the child's best interest." The court held Victor failed to raise this issue prior to the evidentiary hearing, raising it only in his motion to alter or amend. The court further invoked the rule that an appellant's failure to provide necessary documentation requires the reviewing court to presume the missing portion supports the district court's decision, citing Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007). Because Victor did not provide transcripts of the evidentiary hearing, the court could not assess whether the substantial-change issue was orally raised there and presumed the transcripts supported the district court's decision. A footnote noted the supreme court's July 21, 2023, notice instructing Victor regarding transcript-request obligations under NRAP 9(b)(1)(B). Alternatively, the court held that even if the district court erred by not expressly stating its substantial-change reasoning in the modification order, any error was harmless because the court clarified its reasoning in the order denying the motion to alter or amend, and when read together the combined orders contained all findings necessary to modify custody. The court cited NRCP 61 ("At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights.") and Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010) ("When an error is harmless, reversal is not warranted."). On Victor's substantial-evidence challenge to the district court's evaluation of witness testimony and evidence, the court again declined to review the claims due to the absence of the evidentiary hearing transcript, presuming under Cuzze that the missing portions supported the decision. The court affirmed.

In plain language

Victor and Judith were married in 1994 and divorced in 2019 under a stipulated decree - a divorce agreement the parties agreed to and the court approved. That decree said the parents shared "joint physical custody" of their children, but the actual weekly schedule gave Victor the children only from Monday morning to Wednesday morning, with Judith having them the rest of the week. Victor twice asked the court to change the schedule to a week-on/week-off arrangement so the parents would split time equally. The district court denied those requests and concluded that the original schedule, though labeled "joint physical custody," really described a primary physical custody arrangement. In an earlier appeal, the Court of Appeals sent the case back (reversed and remanded) because the district court had not evaluated the "best interest of the child" factors set out in state law before changing the custody label. On remand, the district court held an evidentiary hearing and then formally awarded Judith primary physical custody. This time the court went through the best-interest factors listed in NRS 125C.0035(4). It found no history of mental illness, abuse, or domestic violence, but it found the parents had an extensive history of conflict and an inability to co-parent. Among other things, the court pointed to Victor's pattern of interrupting Judith's vacation time with the children - including an incident where Victor followed Judith to Nigeria and accused her of kidnapping the children, which led to Judith being arrested and temporarily detained. The court found Judith more likely to allow the children frequent contact with Victor, better positioned to meet the children's needs, and well equipped to handle their physical, developmental, and emotional needs. Victor then hired a lawyer for the limited purpose of filing a motion to alter or amend the decision. He argued that the court had failed to say whether there was a "substantial change in circumstances" justifying the custody change, and he challenged how the court weighed the witnesses and evidence. The district court denied that motion, explaining that at the hearing the judge had specifically identified what it considered a substantial change in circumstances - the parties' inability to co-parent, Victor's history of not complying with court orders, and his controlling personality. On this appeal, the Court of Appeals affirmed. It gave two main reasons. First, Victor raised the "substantial change in circumstances" argument too late - only in his motion to alter or amend, not before the evidentiary hearing. And because Victor did not provide the appellate court with the transcript of the evidentiary hearing, the court presumed the missing transcript supported the district court's decision. Second, even if the district court should have explained its substantial-change reasoning in the custody order itself, any such error was harmless because the court later spelled out that reasoning in the order denying the motion to alter or amend; read together, the two orders contained all the findings needed to modify custody. The court also rejected Victor's argument that the order lacked evidentiary support, again because the missing transcript prevented review.