HAER VS. REYES (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court applied an abuse-of-discretion standard of review to the child support determinations, citing Edgington v. Edgington, 119 Nev. 577, 588, 80 P.3d 1282, 1290 (2003). Underlying factual findings will not be disturbed if supported by substantial evidence, Miller v. Miller, 134 Nev. 120, 125, 412 P.3d 1081, 1085 (2018), defined as evidence a reasonable person may accept as adequate to sustain a judgment, Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). Credibility determinations are left to the district court and not reweighed on appeal, id. at 152, 161 P.3d at 244. On imputation of income, the court noted that district courts are authorized to impute income to an obligor who is underemployed or unemployed without good cause, citing NAC 425.125 and Rosenbaum v. Rosenbaum, 86 Nev. 550, 554, 471 P.2d 254, 256-57 (1970). The district court expressly analyzed the factors of NAC 425.125(2), addressing Haer's disability payments, criminal record, and asserted inability to read or write, but found his financial records showed a substantial and sustained income and that his testimony (claiming roughly $2,000 per month from his roofing business) was not credible. The court imputed $7,006 per month and set support at $1,100 under NAC 425.140(1). The appellate court declined to second-guess factual resolutions involving conflicting evidence, citing Primm v. Lopes, 109 Nev. 502, 506-7, 853 P.2d 103, 106 (1993), and reaffirmed the substantial-evidence standard under Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004). The court further invoked Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007), presuming the absent trial transcript supported the district court's decision. In a footnote, the court acknowledged this was "not a typical willful underemployment situation" because Haer appeared employed at full capacity, but concluded the finding was supported because he did not provide credible income information and obstructed discovery on income. On the authority to modify the temporary order, the court analyzed NRS 125B.140. Under NRS 125B.140(1)(a), a child support order "is a judgment by operation of law on or after the date a payment is due" and may not be retroactively modified. The ongoing support set in the decree involved payments not yet due, so no retroactive modification occurred. As to arrearages recalculated from revised temporary payments, NRS 125B.140(1)(b) permits modification of payments that have not accrued at the time a party gives notice of a motion for modification, upon a showing of changed circumstances. Because the child support issue in Reyes' complaint remained unresolved until trial, and the temporary order stated the amount was "without prejudice pending verification of [f]ather's income," the parties were on notice, and the modification was within the court's discretion. On attorney fees, the court applied abuse-of-discretion review, citing Miller v. Wilfong, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005), noting that an abuse of discretion occurs when a decision is not supported by substantial evidence, Otak Nev., LLC v. Eighth Judicial Dist. Court, 129 Nev. 799, 805, 312 P.3d 491, 496 (2013), and that "deference is not owed to legal error, or to findings so conclusory they may mask legal error," Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). In a family law case, the court must consider the Brunzell factors, Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969), and the income disparity under Wright v. Osburn, 114 Nev. 1367, 1370, 970 P.2d 1071, 1073 (1998); see Miller, 121 Nev. at 623-24, 119 P.3d at 730. The district court cited NRS 18.010 but did not specify whether it awarded fees under NRS 18.010(2)(a) or NRS 18.010(2)(b), made no findings if under the latter, and did not cite Wright or address income disparity. Citing Henry Prods. Inc. v. Tarmu, 114 Nev. 1017, 1020, 967 P.2d 444, 446 (1998), and contrasting Panicaro v. Robertson, 113 Nev. 667, 668, 941 P.2d 485, 485-86 (1997), and Roe v. Roe, 139 Nev. Adv. Op. 21, 535 P.3d 274, 293-94 (Ct. App. 2023), the court reversed the fee award and remanded for additional findings.

In plain language

Robert Haer and Carol Reyes were never married but share one child. In September 2020, Reyes filed a complaint asking a court to decide custody. Haer initially disputed that he was the father, and the court sealed the case to protect the child's privacy under a statute (NRS 126.211). DNA testing later confirmed Haer was the child's father. In May 2021, the court entered a temporary order. It adopted a parenting plan the parties agreed on and set temporary child support at $440 per month, based on Haer's reported monthly income of $2,749. Haer was also directed to pay an extra $100 per month toward $2,580 in back support (arrearages) dating from October 2020. The court made clear this support amount was temporary and would remain in place only until Haer's actual income could be verified. At trial, the parties agreed to admit several of Haer's financial records. Haer testified about his income, but the court found his testimony about how much he earned - and how much he was able to earn - was not believable. Looking at his bank records, tax documents, and other information, the court concluded that Haer was capable of earning much more than he claimed. The court decided he was "willfully underemployed" and treated him as if he earned $7,006 per month (this is called imputing income). Using that figure, the court set his monthly child support at $1,100. Because Haer's inaccurate financial disclosures had caused the earlier temporary support amount to be set too low, the court also had Reyes submit a schedule of what was actually owed. The court ultimately found Haer was $9,240 in arrears and ordered him to pay $100 per month toward that. The court also awarded Reyes $1,500 in attorney fees. Haer appealed. He raised three main points. First, he argued the court was wrong to impute extra income to him, saying it used outdated information, that his roofing business had declined, and that it ignored his poor health, criminal history, and inability to read or write. The appeals court disagreed. It explained that judges review these decisions for "abuse of discretion" and do not re-weigh a witness's credibility. The record showed the trial court actually did consider Haer's health, criminal record, and literacy, but concluded his own financial records showed he had earned substantial income and that his testimony conflicted with the documents. The appeals court also noted that Haer never provided a trial transcript, so it presumed the missing transcript supported the trial court's decision. Second, Haer argued the court had no power to change the support amount from what the temporary order set. The appeals court rejected this. As for the ongoing support in the final decree, no retroactive change was involved because those payments had not yet come due. As for the arrearages based on revised temporary payments, the temporary order itself said the amount was "without prejudice pending verification of [f]ather's income," so both sides were on notice the amount could change. Once trial revealed Haer's disclosure form was inaccurate, adjusting the amounts was permissible. Third, Haer challenged the attorney fees. Here the appeals court agreed with him in part. The trial court said it awarded fees under NRS 18.010 but did not specify which subsection, and did not make the required findings. It also failed to cite or apply a required consideration - the difference in income between the two parties. Because of this lack of clarity, the appeals court reversed the fee award and sent that issue back to the trial court to make proper findings. Everything else was affirmed.