HERRMANN VS. HERRMANN (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court addressed jurisdiction, then reached the merits of three challenges. As to jurisdiction over the order setting a vexatious litigant hearing, the court held that no statute or court rule authorizes an appeal from an order setting a future hearing and dismissed that portion, citing NRAP 3A(b) and Brown v. MHC Stagecoach, LLC, 129 Nev. 343, 345, 301 P.3d 850, 851 (2013). The court confirmed jurisdiction over the appeal from the order denying NRCP 60(b) relief under NRAP 3A(b)(8) (special orders after final judgment), explaining that a separately filed, still-pending motion did not affect the finality of the NRCP 60(b) order, citing Mack-Manley v. Manley, 122 Nev. 849, 855, 138 P.3d 525, 529-30 (2006). On the motion to set aside the omitted-pensions order, the court applied NRCP 60(b) and reviewed for abuse of discretion, citing Vargas v. J Morales Inc., 138 Nev., Adv. Op. 38, 510 P.3d 777, 780 (2022). The district court had concluded Jeremy failed to state a legal basis for setting aside the order, had ample time to obtain the pension information, and failed to obtain it or request additional time. On appeal, Jeremy asserted he sent proof he tried to obtain his federal pension statements but did not explain what proof he submitted; the court declined to consider the unsupported assertion under Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006), and found nothing in the record to support it. The court further held Jeremy waived any challenge to the district court's finding that he had ample time but failed to act or request more time, citing Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011). The court discerned no abuse of discretion. On the Cummins engine, the court noted that under NRS 125.150(3) a party can seek adjudication of an asset mistakenly omitted from the divorce decree within three years of discovering the mistake, citing Kilgore v. Kilgore, 135 Nev. 357, 365, 449 P.3d 848, 849 (2019). Reviewing factual findings deferentially and setting them aside only if clearly erroneous or unsupported by substantial evidence under Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009), the court observed that the district court declined to conclude the engine was an omitted asset, finding it was part of a vehicle awarded to Kelly and that Jeremy failed to rebut that evidence. Because Jeremy pointed to no record evidence showing the engine was not part of the awarded truck, the court found no abuse of discretion. On the bias claim, the court held relief was unwarranted because Jeremy did not show the court's conduct or orders were based on knowledge acquired outside the proceedings, and the decision did not reflect "a deep-seated favoritism or antagonism that would make fair judgment impossible," citing Canarelli v. Eighth Jud. Dist. Ct., 138 Nev. 104, 107, 506 P.3d 334, 337 (2022). The court also cited In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988), for the principle that rulings made during official judicial proceedings generally do not establish legally cognizable grounds for disqualification, and Rivero v. Rivero, 125 Nev. 410, 439, 216 P.3d 218, 233 (2009), for the burden being on the party asserting bias. The court declined to address claims relating to child custody and other issues, finding they either related to prior orders not timely appealed or were not raised below, citing NRAP 3(a)(1), NRAP 4(a)(1), and Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981).

In plain language

Jeremy and Kelly Herrmann were married in 2007 and have two minor children. In April 2022, the district court entered a default divorce decree - a divorce judgment issued after Jeremy failed to participate in the proceedings. Later in 2022, Jeremy filed many motions asking the court to enforce the divorce decree or to hold Kelly in contempt, mostly over how property was divided and over property he said had been left out of the decree, including a Cummins engine and Kelly's pensions. At a November 2022 hearing, Kelly said Jeremy had a federal pension he had not disclosed before the divorce decree was entered, which Jeremy denied. In November 2022, the court resolved 31 of Jeremy's motions, ordering that several mistakenly omitted items be divided equally. The written order mentioned the Cummins engine but did not decide that issue. The court told both parties to file proof of their retirement accounts within 30 days, warning that any claims would be treated as given up if they did not. Jeremy did not file proof of his pension. In January 2023, the court entered an order awarding each party their own pension as separate property. Jeremy then filed a "motion to set aside default judgment," asking the court to undo the pension order, along with seven more motions about withheld, damaged, or omitted property, again including the Cummins engine. The court denied all but one of the motions, found Jeremy was filing piecemeal motions to harass Kelly, and ordered each party to keep any remaining community property in their possession except items specifically awarded to the other in the decree or a prior order. The court also, on its own, set a hearing to consider whether Jeremy should be declared a vexatious litigant. Jeremy appealed. The Court of Appeals ruled on three of Jeremy's challenges and declined to reach others. First, it upheld the denial of his request to undo the pension order, noting he had been given ample time to obtain his pension information but did not do so, did not ask for more time, and did not, on appeal, challenge that finding. Second, on the Cummins engine, the court explained that a party can ask a court to divide an asset mistakenly left out of a divorce decree within three years of discovering the mistake, but Jeremy did not point to evidence showing the engine was an omitted asset rather than part of a vehicle already awarded to Kelly. Third, the court rejected Jeremy's claim of judicial bias, finding he had not shown the bias came from outside the case or reflected the kind of deep-seated antagonism that would make fair judgment impossible. The court also dismissed the appeal to the extent Jeremy tried to appeal from the order merely setting a future vexatious litigant hearing, because no statute or court rule allows an appeal from such an order. Claims about child custody and other matters were not addressed because they related to earlier orders not timely appealed or were not raised below.