HALL VS. LOFTIS (CHILD CUSTODY)

Key holdings

• -A litigant who voluntarily agrees to participate in the Informal Family Trial Court program, and signs a form waiving the rules of evidence and consenting to the court questioning witnesses and to a no-objection procedure, waives any objection to those procedures.
• -A district court conducting an informal family trial does not become an advocate by questioning witnesses to obtain information necessary to evaluate the best interest factors.
• -A court may permit a non-expert lay witness to testify upon a showing of good cause and must consider all evidence relevant to the child's best interest.
• -Appellate courts do not reweigh the evidence or reassess witness credibility on appeal; custody and child support findings supported by substantial evidence will not be disturbed.
• -A district court may consider its prior custody-decree findings when adjudicating a request to modify custody.
• -A court may impute income to an obligor who is underemployed or unemployed without good cause, and the key issue is the good faith of the parent.
• -An arguable evidentiary error is harmless where the movant cannot show that, but for the error, a different result might reasonably have been reached.

Practitioner summary

The Court of Appeals reviewed the district court's custody and child support determinations for abuse of discretion. See Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007) (custody); Edgington v. Edgington, 119 Nev. 577, 588, 80 P.3d 1282, 1290 (2003) (child support). "An abuse of discretion occurs when a district court's decision is not supported by substantial evidence or is clearly erroneous." Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018). Substantial evidence is "evidence that a reasonable person may accept as adequate to sustain a judgment." Ellis, 123 Nev. at 149, 161 P.3d at 242. As a threshold matter, the court held Hall forfeited any challenge to the order denying reconsideration because his appellate briefing presented no argument regarding it. See Palmieri v. Clark County, 131 Nev. 1028, 1033 n.2, 367 P.3d 442, 446 n.2 (Ct. App. 2015). On the due process and evidentiary challenges to the IFTC process, the court applied waiver principles. Because Hall voluntarily agreed to participate in the IFTC, he waived his objection to its procedures. See Bower v. Harrah's Laughlin, Inc., 125 Nev. 470, 479, 215 P.3d 709, 717 (2009) (holding that when a litigant consents to the district court's action "his consent... prevents him from now complaining of the district court's [action]"). The court was expressly informed the parties could not object during testimony, and Hall signed the informal trial process selection form waiving application of the rules of evidence, permitting admission of all relevant evidence, and permitting the court to question witnesses. See generally D.C.R. 27. The record showed the court did not act as an advocate but questioned witnesses to obtain information necessary to evaluate the best interest factors. The court thus found no abuse of discretion under Cox v. Copperfield, 138 Nev. 235, 239, 507 P.3d 1216, 1222 (2022) ("A district court's decision to admit or exclude evidence [is reviewed] for an abuse of discretion and will not be disturbed absent a showing of palpable abuse."). Regarding witness Lehman, who was identified in a pretrial memorandum but not the pretrial witness list, the court found no error because a court must consider all relevant evidence when evaluating the best interest factors. See Nance v. Ferraro, 134 Nev. 152, 155, 418 P.3d 679, 683 (2018) (holding a court must consider all "evidence relevant to the child's best interest"); see also D.C.R. 27(4)(g) (a court may permit a non-expert to testify upon a showing of good cause). The court noted the district court implicitly found good cause and that Hall, who also called a lay witness, did not challenge that finding. See Palmieri, 131 Nev. at 1033 n.2, 367 P.3d at 446 n.2. On the merits of the custody denial, the court applied the modification standard from 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. 401, 404-05, 585 P.3d 1167, 1171 (2023), which requires the movant to demonstrate "there has been a substantial change in circumstances affecting the welfare of the child" and "the modification would serve the child's best interest." The court held the district court's findings were supported by substantial evidence. It declined to reweigh evidence or reassess credibility. See Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000); Ellis, 123 Nev. at 152, 161 P.3d at 244. On legal custody, the court found Loftis initiated academic support, participated in therapeutic treatment, and made "substantial efforts" to obtain medical care, whereas Hall refused to appreciate those efforts, referred to Loftis as "crazy," had no interest in co-parenting, and was "interested in selfishly controlling and pursuing an agenda" not in the children's best interest. The court also held the district court could properly consider its prior custody-decree findings. See Nance, 134 Nev. at 159, 418 P.3d at 685 (a court's best-interest evaluation "will necessarily be informed by [the court's prior] findings and conclusions"). On physical custody, the court again declined to reweigh the criminal-conviction evidence (fully litigated in the prior decree) and found the district court appropriately focused on the children's current environment and the parties' ongoing behaviors, including Hall's inability to cooperate with Loftis. The court noted the district court found Laura's testimony and Hall's claim that S.H. was the aggressor not credible. As to the Family Mediation Center interview report—which the district court indicated it intended to admit but never admitted at the informal trial—the court held that any error was harmless because the court found the children lacked capacity to form an intelligent preference, gave the interview little weight, and found the best interest factors either favored Loftis or were neutral or inapplicable. See Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010) (to establish an error is not harmless and reversal is warranted, "the movant must show that the error affects the party's substantial rights so that, but for the alleged error, a different result might reasonably have been reached"). On child support, the court reviewed for abuse of discretion, Edgington, 119 Nev. at 588, 80 P.3d at 1290, and will not disturb underlying factual findings supported by substantial evidence, Miller v. Miller, 134 Nev. 120, 125, 412 P.3d 1081, 1085 (2018). District courts may impute income to an obligor who is underemployed or unemployed without good cause. NAC 425.125(1); Rosenbaum v. Rosenbaum, 86 Nev. 550, 554, 471 P.2d 254, 256-57 (1970) (a district court may impute income to a party who "purposefully earns less than his reasonable capabilities permit"). "The key issue is the good faith of the parent." Rosenbaum, 86 Nev. at 554, 471 P.2d at 257. The court found substantial evidence supported the finding that Hall's claim he was entirely unable to work was not credible, noting his inconsistent employment information, his resignation only a week after his support obligation increased, and medical paperwork indicating only that he could not drive or operate heavy machinery. The court held it was reasonable to infer Hall resigned because of the increased obligation rather than his medical condition. Cf. Clark Cnty. Sch. v. Payo, 133 Nev. 626, 636, 403 P.3d 1270, 1278 (2017) (appellate courts "must assume" the fact finder drew reasonable inferences from the evidence). The court also rejected Hall's argument that Loftis's updated financial disclosure was required, because Loftis had primary physical custody and thus only Hall's financial information was necessary. See NAC 425.115(2).

In plain language

This case involves a custody dispute between two divorced parents, Burke Hall and Vanessa Loftis, who had three children together. Their youngest child died in a tragic accident, and the parents divorced shortly after. In the divorce decree, the district court gave Loftis sole legal custody (the authority to make major decisions about the children) and primary physical custody (the children live mostly with her) of the two remaining children, S.H. (born 2009) and I.H. (born 2010). An earlier appeal affirmed that decree. Over time, with Loftis's consent, Hall began having weekend parenting time. In January 2024, Hall asked the court for joint legal and physical custody. He alleged that Loftis medically neglected the children and that her husband, Nathan Pressley, is a convicted felon. The court ordered the children interviewed at the Family Mediation Center, adopted the parents' informal parenting arrangement as a temporary order, increased Hall's child support based on his new full-time job, and scheduled an evidentiary hearing. Before that hearing, two incidents occurred involving Hall's household and S.H., who is on the autism spectrum. In one, Hall's wife Laura threw S.H.'s backpack (containing his laptop) off a second-floor landing after a dispute; she said S.H. pushed her. In the second, Hall said S.H. kicked him when Hall tried to take away a laptop; S.H. said Hall took the laptop and hit him on the head with it. S.H. was arrested after the second incident and placed in a specialized court program for autistic youth. Loftis asked the court to reduce Hall's visitation with S.H. and to be reimbursed for the laptop. The court reduced Hall's parenting time with S.H. to a short Friday window and ordered the laptop returned. Rather than proceed to a formal evidentiary hearing, the parties agreed to use the Informal Family Trial Court (IFTC) program. Before agreeing, both parties were told that the judge would question witnesses and that neither party could object during testimony. Both signed a form agreeing to those procedures and waiving the rules of evidence. At the informal trial, Hall testified about his concerns with Loftis's parenting and spent much of his time discussing Pressley's decades-old criminal convictions. He said he did not believe helping the children with homework was his responsibility because that was "a mother's job," and claimed Loftis suffered from "Munchausen syndrome." Loftis's employer, who ran an autism therapy facility both boys attended, testified that S.H. was not aggressive. Laura testified about the backpack incident and admitted she had refused to return the replacement laptop, claiming the court had no jurisdiction over her. Loftis testified about her efforts to obtain the children's autism diagnoses and therapy, and said she opposed joint legal custody because she feared Hall would undo that work since he disagreed with the diagnoses. The district court found that circumstances had changed (because the parties had informally modified their prior schedule) but denied joint custody based on its findings about the children's best interests. It kept Loftis's sole legal and primary physical custody, gave Hall weekend time with I.H. and a short Friday window with S.H. (with S.H. allowed to extend it at his own discretion), and imputed income to Hall for child support after finding his claim that he could not work was not credible. The court denied Hall's motion for reconsideration. On appeal, the Court of Appeals affirmed. It concluded Hall had voluntarily agreed to the informal trial procedures and therefore could not complain about them. It found the court's custody and child support findings were supported by substantial evidence, and emphasized that appellate courts do not reweigh evidence or reassess witness credibility.