HABASHI VS. KAMEL-KIROLLOS (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals applied deferential, abuse-of-discretion review across all four claims. **Child custody.** Child custody decisions are reviewed for abuse of discretion, and factual findings are affirmed if supported by substantial evidence. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007). The sole consideration 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 noted it will not reweigh evidence or credibility determinations, citing Ellis, 123 Nev. at 152, 161 P.3d at 244, and Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000), and presumes the district court properly exercised its discretion where it made substantial factual findings, citing Culbertson v. Culbertson, 91 Nev. 230, 233-34, 533 P.2d 768, 770 (1975). While NRS 125C.002(1) and NRS 125C.0025(1) establish circumstances presuming joint custody is in the child's best interest, a court may award one parent primary physical custody where joint custody is not in the child's best interest under NRS 125C.0038. The district court expressly considered the factors under NRS 125C.0035(4) and identified four factors favoring Kamel-Kirollos. Finding the factual findings supported by the record, the court discerned no abuse of discretion. The court also addressed, in a footnote, Habashi's contention that a new trial should not have been granted, noting Habashi himself requested a new trial concerning the first decree; the court found no abuse of discretion, citing Edwards Indus., Inc. v. DTE/BTE, Inc., 112 Nev. 1025, 1036, 923 P.2d 569, 576 (1996). **Division of community property.** Property division is reviewed for abuse of discretion, Schwartz v. Schwartz, 126 Nev. 87, 90, 225 P.3d 1273, 1275 (2010), and will not be disturbed if supported by substantial evidence, Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004). The district court should make an equal distribution to the extent practicable, "except that the court may make an unequal disposition of the community property in such proportions as it deems just if the court finds a compelling reason to do so and sets forth in writing the reasons for making the unequal disposition." NRS 125.150(1)(b). Where community property "is lost, expended or destroyed through the intentional misconduct of one spouse," the court may treat that misconduct as a compelling reason for unequal disposition. Lofgren v. Lofgren, 112 Nev. 1282, 1283, 926 P.2d 296, 297 (1996). The court upheld the tax-record-based business valuation, noting Habashi did not challenge the negative-inference discovery sanction (thus waiving that argument under Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011)) and offered no cogent argument for an alternative valuation method (Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006)). The court affirmed the unequal allocation of the overdue mortgage and utility bills and the bank withdrawal, finding specific supporting findings under NRS 125.150(1)(b) and Lofgren. **Alimony.** A district court has broad discretion in awarding alimony. Kogod v. Cioffi-Kogod, 135 Nev. 64, 66, 439 P.3d 397, 400 (2019). Under NRS 125.150(1)(a), a court may award alimony "as appears just and equitable," and the amount and duration should be just and equitable based on the circumstances of each case, Shydler v. Shydler, 114 Nev. 192, 199, 954 P.2d 37, 41 (1998). Alimony may be just and equitable where necessary to support a spouse's economic needs, equalize post-divorce earnings, or maintain a marital standard of living, Kogod, 135 Nev. at 68, 439 P.3d at 401. The court must consider the factors in NRS 125.150(9). The district court applied NRS 125.150(9), noted Kamel-Kirollos had been a stay-at-home mother for most of the marriage, and awarded $1 per year for ten years subject to adjustment if withheld income were discovered. The court found sufficient supporting findings and no abuse of discretion, citing Kogod and the unpublished Bauer v. Bauer, No. 62469, 2015 WL 5735056 (Nev. September 28, 2015). **Child support arrears.** Child support orders are reviewed for abuse of discretion, Edgington v. Edgington, 119 Nev. 577, 582, 80 P.3d 1282, 1290 (2003). An abuse occurs where findings are not supported by substantial evidence, Miller v. Miller, 134 Nev. 120, 125, 412 P.3d 1081, 1085 (2018); Ellis, 123 Nev. at 149, 161 P.3d at 242, and "deference is not owed to legal error, or to findings so conclusory they may mask legal error," Davis, 131 Nev. at 450, 352 P.3d at 1142. A parent's support obligation generally ceases when the child reaches 18 if no longer enrolled in high school, otherwise at 19. NRS 125C.0045(9)(b); see also NRS 125B.200(2). "The law presumes that once a child reaches majority, the child is capable of self-support." Edgington, 119 Nev. at 582, 80 P.3d at 1286. The district court made no findings on when the oldest child reached the age of majority and did not explain the basis for the arrears figure, though the record indicated the oldest child reached majority before the 2022 decree. Because the support obligation for that child should have ceased at majority under NRS 125C.0045(9) and it was unclear whether the court accounted for this, the court could not conclude the arrears amount was supported by substantial evidence and reversed and remanded for additional findings on the date of majority and any resulting arrears adjustment.

In plain language

Saad Halim Habashi and Sally Kamel-Kirollos married in 2002 and had three children. After their marriage ran into difficulties, Kamel-Kirollos filed for divorce in 2020, representing herself. Habashi, also representing himself, filed an answer and asked for joint legal and physical custody. Early in the case, the district court ordered Habashi to pay temporary child support. When the couple's oldest child turned 18 (reached "the age of majority"), Habashi asked the court to reduce his monthly payments, but the court did not rule on some of those requests. The court held a trial and entered a divorce decree in December 2021. Habashi then filed a motion the court treated as a request to reconsider, which the court granted, leading to a second trial. At the second trial, both parties testified about their income, their appliance repair business, their marital home, an apartment building they owned in Egypt, and their children. The court found that Habashi did not testify credibly about his income and business, and that he had moved to Egypt for a period and mismanaged his business to make it look like he earned little. The court decided several issues. It valued the business using the couple's 2019 and 2020 tax returns (because neither side provided an appraisal and Habashi had withheld business information during discovery), setting its value at $73,333. It valued the community interest in the marital home at $217,716.02 and the Egyptian apartment building at $62,666.12. Because Habashi had failed to pay ordered mortgage and utility bills totaling $41,410, and had withdrawn $10,000 from a joint bank account, the court credited those amounts (including $5,000 to Kamel-Kirollos for her share of the withdrawn funds) toward her share of the property. The court awarded the marital home to Kamel-Kirollos and the Egyptian apartment to Habashi, then equalized each party's share. On custody, the court gave Habashi primary physical custody of the minor son and Kamel-Kirollos primary physical custody of the minor daughter. It found the parties' incomes were substantially similar and that neither would pay child support until the middle child turned 18. It found Habashi owed $10,420.33 in past-due (arrears) child support. It also ordered Habashi to pay a symbolic amount of alimony - $1 per year for ten years - which could be adjusted if it turned out Habashi had hidden income. On appeal, the Court of Appeals agreed with the district court on most points. It upheld the custody decision, the property division, and the alimony award, explaining that an appeals court does not re-weigh evidence or second-guess a trial judge's decisions about who is telling the truth. However, the court found a problem with how the child support arrears were calculated: the district court never made a finding about exactly when the oldest child reached age 18, even though the child had reached adulthood before the second decree, and Habashi's support obligation for that child should have ended at that point. Because it was unclear whether the district court accounted for this, the appeals court reversed the arrears calculation and sent the case back for the district court to make additional findings on that narrow issue.