HALL VS. MARTIN (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The panel addressed three issues under differing standards of review. **Constitutional claims (de novo).** Constitutional challenges are reviewed de novo. Callie v. Bowling, 123 Nev. 181, 183, 160 P.3d 878, 879 (2007). The court first invoked the preservation rule that issues not argued below are "deemed to have been waived and will not be considered on appeal." Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). The record lacked any objection by Diamond to holding the custody trial before the criminal trial; indeed, Justin, not Diamond, moved for a continuance. Beyond waiver, the court found no deprivation of Fifth Amendment rights. The Fifth Amendment applies in both civil and criminal proceedings and permits a party to refuse to answer questions that could incriminate the party in future criminal proceedings. Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). The district court reminded Diamond of her choice, never prevented her from remaining silent, and suggested she consult her criminal attorney. The court further reasoned her testimony (denials and self-defense) was not necessarily incriminating and might have aided her criminal defense. Because she elected to testify, she voluntarily waived the privilege. See Blalark v. State, 112 Nev. 795, 796, 918 P.2d 1314, 1315 (1996). On due process, the Fourteenth Amendment affords due process before deprivation of property or a protected constitutional interest, and procedural due process "requires notice and an opportunity to be heard." Callie, 123 Nev. at 183, 160 P.3d at 879. Parents' interest in the care, custody, and control of their children is a fundamental right; because both parents hold identical fundamental interests, the dispute is resolved under the best interest of the child standard. Rico v. Rodriguez, 121 Nev. 695, 704, 120 P.3d 812, 818 (2005); see also NRS 125C.0035. The district court gave notice and an opportunity to be heard, applied NRS 125C.0035 and the factors in NRS 125C.0035(4), found multiple acts of domestic violence by clear and convincing evidence triggering the rebuttable presumption under NRS 125C.0035(5), and found Diamond failed to rebut it - so no due process violation occurred. **Denial of continuance / refusal to stay (abuse of discretion).** Having found the record established no deprivation of the ability to invoke the Fifth Amendment privilege, the court reviewed the decision to proceed for abuse of discretion. Parties facing parallel criminal and civil proceedings often must choose between testifying civilly or invoking the privilege, and the authority to stay civil proceedings rests within the district court's discretion; civil and criminal matters may constitutionally proceed simultaneously. Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 128 Nev. 635, 638, 289 P.3d 201, 203 (2012). "An abuse of discretion occurs if the district court's decision is arbitrary or capricious or if it exceeds the bounds of law or reason." Skender v. Brunsonbuilt Constr. & Dev. Co., 122 Nev. 1430, 1435, 148 P.3d 710, 714 (2006). The court cited persuasive federal authority that there is no constitutional right to a stay merely because a parallel criminal proceeding is pending: Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 98 (2d Cir. 2012); Microfinancial, Inc. v. Premier Holidays Int'l, Inc., 385 F.3d 72, 77-78 (1st Cir. 2004); Fed. Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir. 1989). Denial of continuance was not an abuse of discretion because the case had been pending since 2019, the criminal matter had been reset multiple times, and SCR 251 obligated the court to conclude custody proceedings within six months absent extraordinary or unforeseeable circumstances. The court also noted Diamond failed to establish prejudice. Cf. NRCP 61. **Discovery/evidence and the rule of completeness (abuse of discretion).** Evidentiary rulings are reviewed for clear abuse of discretion. Davis v. Beling, 128 Nev. 301, 310, 278 P.3d 501, 508 (2012); M.C. Multi-Fam. Dev., LLC v. Crestdale Assocs., Ltd., 124 Nev. 901, 913, 193 P.3d 536, 544 (2008); Castillo v. State, 114 Nev. 271, 277, 956 P.2d 103, 107-08 (1998). Continuance rulings are likewise discretionary. Benson v. Benson, 66 Nev. 94, 99, 204 P.2d 316, 319 (1949). Under EDCR 5.602(a), discovery disputes must be brought before the discovery hearing master. Diamond disclosed videos of the incident in her pretrial memorandum and did not file a motion to compel or raise the dispute with the discovery commissioner. She also failed to describe the content of the additional footage or show how it would alter the findings. The rule of completeness under NRS 47.120(1) allows a party to require introduction of other relevant parts of a writing or recording, and any party may introduce other relevant parts; its purpose is to prevent confusion or misrepresentation from partial introduction. See United States v. Vallejos, 742 F.3d 902, 905 (9th Cir. 2014); see also Patterson v. State, 111 Nev. 1525, 1530-31, 907 P.2d 984, 988 (1995). A party alleging evidentiary error must show a substantial right was affected. NRS 47.040(1). Because Diamond did not show the video would have been exculpatory, could have testified to its contents as a percipient witness, and because the separately found pre-December 2019 act of domestic violence independently triggered the presumption, any error was harmless. Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010); see also NRS 47.040(1).

In plain language

Diamond Hall and Justin Martin were never married but share one child, referred to in the opinion as G.M. According to the opinion, in December 2019 Diamond went to Justin's house unannounced and uninvited, entered through the dog door, and refused to leave when asked. Justin testified she poked him in the eye and chest, and a video from Justin's home security system showed her making a poking motion and trying to grab his phone while he appeared to be calling the police. Diamond denied poking him and said she was acting in self-defense, though she admitted behaving badly and admitted she had shoved Justin on an earlier occasion within the prior 12 months. She was arrested and charged with trespass and battery constituting domestic violence. Days later, Diamond filed for child custody and Justin filed an answer and counterclaim. The custody case dragged on, partly because of COVID-19 delays and partly because Diamond's criminal case kept getting reset. At a pretrial hearing, the judge said the custody case needed to be resolved and could not be continued again. The judge told Diamond to talk to her criminal lawyer about whether to testify at the custody trial or instead invoke her Fifth Amendment privilege - the right not to give testimony that could be used against her in the criminal case. When the parties agreed (stipulated) to postpone the custody trial until after the criminal case, the judge rejected that agreement. Justin then asked for a continuance himself, and the judge denied it. The trial was finally set for August 16, and Diamond never filed her own motion to continue. At the one-day custody trial, Diamond chose to testify and claimed self-defense. By testifying, she gave up (waived) her Fifth Amendment right to stay silent. During the trial, Justin's attorney referenced hours of video, and short video clips were admitted into evidence without objection after Diamond testified. The judge found, by "clear and convincing evidence," that Diamond had committed multiple acts of domestic violence - two on December 1, 2019 (battery and coercion), plus another in the preceding 12 months. Under Nevada law, that finding created a "rebuttable presumption" that giving Diamond physical custody was not in the child's best interest, meaning the burden shifted to her to disprove it. The judge found she did not overcome that presumption and awarded Justin primary physical custody, with Diamond getting parenting time of 48 hours every weekend. Diamond asked the court to reconsider, arguing Justin had failed to hand over video evidence during pretrial discovery. The judge found she had actually disclosed the existence of the videos herself in her pretrial memorandum, that she never filed a motion to compel or raised the issue with the discovery commissioner, and that neither side gave the full video to the court even though the court offered to watch it. The judge denied reconsideration and ordered Diamond to pay Justin's attorney fees and costs. On appeal, the Court of Appeals held that Diamond's constitutional rights were not violated. The court explained she never objected below to holding the custody trial first, that it was Justin (not Diamond) who moved to continue, and that the district court never forced her to testify - it only reminded her she had a choice and even suggested she consult her criminal lawyer. Because she voluntarily chose to testify, the court found her Fifth Amendment argument unpersuasive. The court also concluded she received due process: notice and an opportunity to be heard, with the correct "best interest of the child" standard applied. On the video-evidence issues, the court held Diamond failed to show how the missing footage would have changed the outcome or affected her substantial rights - and, importantly, because the judge separately found an earlier act of domestic violence that alone triggered the presumption, any error about the December video was "harmless." The court affirmed.