HERNANDEZ-BASILIO VS. MARQUEZ-HERNANDEZ (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed each of Edgar's claims under the abuse-of-discretion standard. On physical custody, the court applied Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996), reviewing custody determinations for abuse of discretion, and Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018), noting that an abuse of discretion occurs when a decision is clearly erroneous. Factual findings will not be set aside if supported by substantial evidence—"evidence that a reasonable person may accept as adequate to sustain a judgment"—per Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). The sole consideration is the best interest of the child under NRS 125C.0035(1), and the court must make findings on the non-exhaustive best-interest factors in NRS 125C.0035(4). The district court made findings on each factor, concluding two favored both parties, two favored Maria, four weighed against Edgar, three did not apply, and one was neutral. The court also applied the domestic violence presumption against joint physical custody in NRS 125C.003(1)(c), found Maria's testimony credible (declining to reweigh credibility on appeal per Castle v. Simmons, 120 Nev. 98, 103, 86 P.3d 1042, 1046 (2004)), and found Edgar failed to rebut the presumption. Because Edgar did not file the divorce proceeding transcripts, the court presumed the missing record supported the district court's determination under Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007), and cited Rivero v. Rivero, 125 Nev. 410, 430, 216 P.3d 213, 227 (2009), overruled on other grounds by Romano v. Romano, 138 Nev. 1, 5, 501 P.3d 980, 983 (2022), abrogated in part by Killebrew, Tr. of Killebrew Revocable Tr., 5TH ADM 1978 v. State ex rel. Donohue, 139 Nev., Adv. Op. 48 (2023). On the pre-decree temporary child support amount, the court reviewed for abuse of discretion under Romano, 138 Nev. at 7, 501 P.3d at 985, applying the substantial-evidence standard for underlying findings per Rivero, 125 Nev. at 428, 431, 216 P.3d at 226, 228. The court held Edgar's offset argument was waived because nothing in the record showed he raised it below, citing Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). To the extent it may have been raised orally at trial, the absent transcript again triggered the Cuzze presumption. On the income assigned to Maria ($3,000 per month), the court found Edgar presented no cogent argument tying the claim to any requested relief and declined to consider it under Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). On the child tax credit, the court applied abuse-of-discretion review under Sertic v. Sertic, 111 Nev. 1192, 1197, 901 P.2d 148, 151 (1995), and 26 U.S.C. § 152(e)(4), under which the custodial parent—the parent having custody for the greater portion of the calendar year—receives the credit, subject to exceptions. Because Maria was properly awarded primary physical custody and Edgar did not dispute her custodial-parent status or offer cogent argument, the court found no abuse of discretion. On the COVID-19 stimulus money, the court applied NRS 125.150(1)(b), which requires an equal disposition of community property but permits an unequal disposition "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," reviewing under Kogod v. Cioffi-Kogod, 135 Nev. 64, 75, 439 P.3d 397, 406 (2019). The district court found the $7,000 stimulus was community property but that Edgar's dishonesty about income (which should have produced a $700 monthly temporary support figure rather than $415) resulted in a $4,560 underpayment over 16 months, constituting a compelling written reason for unequal distribution. The missing transcript again triggered the Cuzze presumption, and the court discerned no abuse of discretion. On judicial bias, the court held relief was unwarranted because Edgar merely disagreed with the court's conclusions and did not show bias from an extrajudicial source or "a deep-seated favoritism or antagonism that would make fair judgment impossible," citing Canarelli v. Eighth Judicial Dist. Court, 138 Nev. 104, 107, 506 P.3d 334, 337 (2022), and In re Petition to Recall Dunleavy, 104 Nev. 784, 789-90, 769 P.2d 1271, 1275 (1988) (rulings during proceedings generally do not establish grounds for disqualification). The burden rests on the party asserting bias, per Rivero, 125 Nev. at 439, 216 P.3d at 233.

In plain language

Edgar and Maria married in 2014 and have two young children. In September 2020, the couple had an altercation during which, according to the opinion, an intoxicated Edgar accused Maria of infidelity, called her derogatory names, and hit her arm while she held both children. Maria called the police, Edgar was arrested for battery related to domestic violence (though no formal charges were filed), and Maria obtained a temporary protection order (a TPO, which is a court order intended to protect a person from further harm) that was extended several times. Edgar then filed for divorce and asked for joint physical custody (an arrangement where both parents share significant time with the children). In January 2021, the district court entered a temporary order giving Edgar parenting time on weekends and requiring him to pay $415 per month in child support, based on the income he reported at the time. After a trial spread over four days between October 2021 and February 2022, the district court issued a 58-page divorce decree. The court gave Maria primary physical custody, subject to Edgar's weekend parenting time on three weekends per month. In doing so, the court applied a legal presumption in Nevada law that weighs against joint physical custody when a parent has committed domestic violence. The court found that Maria proved, by clear and convincing evidence (a high standard of proof), that Edgar committed multiple acts of domestic violence, including pushing, hitting, slapping, grabbing her by the neck, and sexual assault on at least one occasion. The court also gave Maria the child tax credit, found that Edgar had been dishonest about his income when the earlier $415 support figure was set, raised his ongoing child support to $1,118 per month, and declined to make Maria repay Edgar half of the COVID-19 stimulus money she had received. On appeal, Edgar argued the custody ruling lacked adequate evidentiary support, that joint custody was appropriate, that Maria failed to prove domestic violence, that the temporary support amount was wrong, that the income assigned to Maria was too low, that the tax credit should have been split, that he should have gotten half the stimulus money, and that the judge was biased. The Court of Appeals rejected all of these arguments. A recurring reason was that Edgar did not file the trial transcripts with the appellate court, even though he had requested them. Under Nevada law, when the person appealing fails to provide necessary parts of the record, the appellate court assumes the missing material supports the lower court's decision. The court also found that some of Edgar's arguments were either raised too late (never presented to the trial court) or not supported by developed reasoning. On the bias claim, the court explained that disagreeing with a judge's conclusions is not enough; a party must show bias rooted in something outside the case or a deep-seated hostility making a fair decision impossible, which Edgar did not do. The court affirmed the divorce decree in full.