GRAY VS. GRAY (CHILD CUSTODY)

Statutes cited

Key holdings

• -Domestic violence known to the parties or the court at the time of a prior custody order cannot be used to demonstrate a substantial change in circumstances, but such evidence may be considered in determining whether modification is in the child's best interest under NRS 125C.0035(4)(k). (Applying Nance v. Ferraro.)
• -A district court "must hear all information regarding domestic violence in order to determine the child's best interests." (Quoting Castle v. Simmons.)
• -An objection to admission of evidence on one ground (here, lack of consent to record a call) forfeits other grounds (hearsay, foundation) raised for the first time on appeal, which are reviewed, if at all, only for plain error.
• -Credibility determinations and the weighing of evidence are left to the trier of fact, and the appellate court will not reweigh the evidence.
• -Where a party does not dispute a finding of domestic violence against the other parent during the same incident that supports the best-interest analysis, any error in finding domestic violence against the child is harmless.
• -A finding by clear and convincing evidence that a parent committed domestic violence creates a rebuttable presumption under NRS 125C.0035(5) that sole or joint physical custody by that parent is not in the child's best interest.
• -A district court may award attorney fees under NRS 18.010(2)(b) and EDCR 7.60(b) where it finds a party, without just cause, multiplied the proceedings and caused unnecessary delay with intent to harass, provided the party had notice and an opportunity to be heard.
• -In awarding attorney fees in a family law case, the court must consider the Brunzell factors and the disparity in the parties' incomes.

Practitioner summary

The Court of Appeals reviewed the child custody modification and the attorney fee award for abuse of discretion, affirming factual findings supported by substantial evidence - "evidence that a reasonable person may accept as adequate to sustain a judgment." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007). The sole consideration in a custody determination is the best interest of the child. NRS 125C.0035(1); Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015). The court presumes the district court properly exercised its discretion. Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). Modification requires "(1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child's best interest is served by the modification." Romano v. Romano, 138 Nev. 1, 3, 501 P.3d 980, 982 (2022), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev. 401, 404-05, 535 P.3d 1167, 1171 (2023). A district court must consider the best interest factors. Nance v. Ferraro, 134 Nev. 152, 161, 418 P.3d 679, 687 (Ct. App. 2018). Domestic violence allegations "must be carefully considered in child custody proceedings." Soldo-Allesio v. Ferguson, 141 Nev., Adv. Op. 9, 565 P.3d 842, 844 (Ct. App. 2025). On the res judicata argument, the court applied the rule from Nance that domestic violence known to the parties or court at the time of the prior custody order cannot establish a substantial change in circumstances, but may be considered in the best-interest analysis. Nance, 134 Nev. at 163, 418 P.3d at 688. A court "must hear all information regarding domestic violence in order to determine the child's best interests." Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004). The record reflected the district court did not use the gun incident or phone call incident to find a substantial change, but considered them under NRS 125C.0035(4)(k), which requires consideration of "[w]hether either parent... has engaged in an act of domestic violence against the child, [or] a parent of the child." On admission of the recorded call, the court held Myisha's sole objection below was lack of consent to record; her appellate hearsay and foundation arguments were forfeited. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981); Schuck v. Signature Flight Support of Nev., Inc., 126 Nev. 434, 437, 245 P.3d 542, 544 (2010). Reviewing for plain error, the court found no error "so unmistakable that it reveals itself by a casual inspection of the record." Williams v. Zellhoefer, 89 Nev. 579, 580, 517 P.2d 789, 789 (1983). Plain-error relief is "rarely granted in civil cases and is reserved for those situations where it has been demonstrated that the failure to grant relief will result in a manifest injustice or a miscarriage of justice." In re J.D.N., 128 Nev. 462, 469, 283 P.3d 842, 847 (2012); see also Jeremias v. State, 134 Nev. 46, 51-52, 412 P.3d 43, 49 (2018). On the argument that reliance on the recorded call was arbitrary and capricious, the court reiterated that "credibility determinations and the weighing of evidence are left to the trier of fact." Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 365-66, 212 P.3d 1068, 1080 (2009). The district court used the call as support for its adverse credibility finding within an overall best-interest determination; the appellate court would not reweigh the evidence. In re J.D.N., 128 Nev. at 477, 283 P.3d at 852. On the finding that pulling the child's arm was domestic violence, the court declined to decide whether that finding was supported by substantial evidence, because Myisha did not dispute the finding that she committed domestic violence against Ester during the soccer game incident - a factor properly weighed under NRS 125C.0035(4)(k) - and did not challenge the determination that her other conduct plus her use of the "event" provision constituted a substantial change in circumstances under Romano. Thus any error as to the child was harmless. On the rebuttable presumption, the district court found by clear and convincing evidence that Myisha engaged in acts of domestic violence, creating a rebuttable presumption that sole or joint physical custody by Myisha was not in the child's best interest. NRS 125C.0035(5); NRS 125C.230(1); Soldo-Allesio, 141 Nev., Adv. Op. 9, 565 P.3d at 848. The court found the supporting findings, including that Myisha failed to rebut the presumption in light of adverse credibility determinations, supported by substantial evidence and not subject to reweighing. On attorney fees, the court reviewed for manifest abuse of discretion. Kahn v. Morse & Mowbray, 121 Nev. 464, 479, 117 P.3d 227, 238 (2005); Rivero v. Rivero, 125 Nev. 410, 440-41, 216 P.3d 213, 234 (2009), overruled on other grounds by Romano, 138 Nev. at 6, 501 P.3d at 984. An abuse of discretion occurs when the decision is not supported by substantial evidence. Otak Nev., LLC v. Eighth Jud. Dist. Ct., 129 Nev. 799, 805, 312 P.3d 491, 496 (2013). In family law cases, the court must consider the Brunzell factors (Brunzell v. Golden Gate National Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969)) and income disparity under Wright v. Osburn, 114 Nev. 1367, 1370, 970 P.2d 1071, 1073 (1998). Miller v. Wilfong, 121 Nev. 619, 623-24, 119 P.3d 727, 730 (2005). The district court awarded fees under NRS 18.010(2)(b) and EDCR 7.60(b), finding Myisha caused unnecessary delay and acted with intent to harass, with notice and opportunity to be heard. See EDCR 7.60(b)(8); EDCR 5.219(b); Roe v. Roe, 139 Nev. 163, 182-83, 535 P.3d 274, 293 (Ct. App. 2023); Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 996, 860 P.2d 720, 724 (1993); NRS 125C.250. The court reduced the award from $46,989.25 to $20,000 in light of income disparity and considered the Brunzell factors. Logan v. Abe, 131 Nev. 260, 266, 350 P.3d 1139, 1143 (2015). The court found no manifest abuse of discretion. The Court of Appeals also noted a procedural point: the written fee order was entered before the written custody modification order, so it reviewed the fee challenge as an interlocutory order within the appeal from the final custody decision. Consolidated Generator v. Cummins Engine, 114 Nev. 1304, 1312, 971 P.2d 1251, 1256 (1998).

In plain language

Myisha and Ester Gray were married and share one child, born in 2017. After Myisha filed for divorce, the parties eventually agreed to share joint physical and legal custody, and the district court entered a divorce decree in 2022 adopting that agreement. The decree contained an "event" provision that let Myisha take the child to weekend events with seven days' notice, unless Ester already had plans with the child. The decree did not define "event." Ester later filed two motions to change the arrangement to give her primary physical custody. Her first motion, filed in November 2023, described a phone call from Myisha's girlfriend Rochelle reporting a domestic dispute in the child's presence (the "phone call incident"). The court declined to modify custody at that time, finding the parents had worked together in a stressful moment to keep the child's interests first. Ester's second motion, filed in November 2024, described a September 28, 2024 incident (the "soccer game incident") in which, according to Ester, Myisha pushed and hit her to separate her from the child, then grabbed the child by the arm and forced him into a vehicle as he screamed and cried. Myisha had been arrested for domestic violence in connection with that incident. Ester also said Myisha repeatedly used the "event" provision to take the child without her consent. The district court found a substantial change in circumstances based on the soccer game incident and gave Ester temporary primary physical custody. After an evidentiary hearing where both parents testified, the district court granted Ester primary physical custody. It found that Myisha had committed domestic violence during the soccer game incident and had used the "event" provision to interfere with Ester's parenting time. The court reviewed the statutory best-interest factors, found by clear and convincing evidence that Myisha's conduct amounted to domestic violence (triggering a legal presumption against her having joint or sole custody), and found Myisha's testimony not credible - especially her denial of the soccer game events. The court gave Myisha parenting time each week and on the first weekend of each month, ended the "event" provision, and later awarded Ester $20,000 in attorney fees (reduced from the $46,989.25 requested, in light of the income difference between the parties). On appeal, the Court of Appeals rejected each of Myisha's arguments. On the domestic violence history, the court found the record showed the district court did not use the older incidents (the gun incident and the phone call incident) to establish a "substantial change in circumstances"; instead it used them only in weighing the child's best interest, which is permitted. On the recorded phone call, the court held Myisha had objected below only on the ground that the call was recorded without consent, so her new hearsay and foundation arguments were forfeited and did not amount to plain error. On the claim that the court acted arbitrarily by revisiting the call, the court explained that credibility and weighing of evidence are left to the trial court, which used the call as one part of its overall credibility and best-interest analysis. On whether pulling the child's arm was domestic violence, the court said it did not need to decide that question because Myisha did not dispute that she committed domestic violence against Ester during the same incident, making any error harmless. On the rebuttal-evidence argument, the court held the findings were supported by substantial evidence and it would not reweigh credibility. Finally, the court upheld the fee award as within the district court's discretion.