HERRMANN VS. HERRMANN (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) de novo, citing Kragen v. Eighth Jud. Dist. Ct., 140 Nev., Adv. Op. 49, ___ P.3d ___ (Ct. App. 2024). The district court's factual findings are reviewed deferentially and upheld if supported by substantial evidence, meaning "evidence that a reasonable person may accept as adequate to sustain a judgment," citing Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). The court framed the analysis around exclusive, continuing jurisdiction. Neither party disputed that Nevada had jurisdiction under NRS 125A.305 to make the initial custody determination when it entered the divorce decree, so Nevada initially had "exclusive, continuing jurisdiction" under NRS 125A.315(1). However, NRS 125A.315(1)(b) provides that such jurisdiction ceases when a court determines that "the child, the child's parents and any person acting as a parent do not presently reside in this state." The court also referenced UCCJEA (1997) § 202, comment 2, which states that continuing jurisdiction is lost when the child, the child's parents, and any person acting as a parent no longer reside in the original decree state, and is not reestablished if the noncustodial parent returns. Applying that framework, the court found the district court's determination that Jeremy, Kelly, and the children no longer reside in Nevada was undisputed and supported by substantial evidence; the record showed none of them had resided in Nevada for over a year before Jeremy filed his August 2023 motion. The court declined to review Jeremy's challenge to the divorce decree's initial authorization of the children's relocation to California because Jeremy failed to timely appeal the decree, citing NRAP 3(a)(1) and NRAP 4(a)(1) (notice of appeal due no later than 30 days after service of written notice of entry). Accordingly, the district court properly determined Nevada lost continuing, exclusive jurisdiction. The court then addressed whether Nevada could nonetheless modify its prior order. Under Friedman v. Eighth Jud. Dist. Ct., 127 Nev. 842, 848, 264 P.3d 1161, 1166 (2011), once exclusive, continuing jurisdiction ceases, a court may modify its prior child custody determination "only if it has jurisdiction to make an initial [child custody] determination pursuant to NRS 125A.305." The court set out the four bases for initial jurisdiction under NRS 125A.305: (1) home-state jurisdiction (or home state within six months of initiation with a parent remaining in Nevada), (2) another state lacks jurisdiction or the home state declines because Nevada is a more appropriate forum, (3) all courts with jurisdiction have declined because Nevada is more appropriate, or (4) no other court would have jurisdiction. The court held that Jeremy's argument — that Kelly's allegedly improper relocation to Pennsylvania supplied jurisdiction — failed because he did not explain how the relocation affected the jurisdictional analysis, did not cite or address NRS 125A.305, and pointed to no authority supporting the proposition. The court therefore treated the argument as not cogently argued under Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). Given that the district court, at Jeremy's request, held a conference with the Court of Common Pleas of Berks County, Pennsylvania, at which it was agreed Pennsylvania had assumed jurisdiction, the court discerned no basis to disturb the relinquishment. In a footnote, the court rejected Jeremy's contention that the order should be reversed because the district court was "corrupt," finding nothing in the record showing the decisions were based on extrajudicial knowledge or reflected "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).

In plain language

Jeremy and Kelly Herrmann married in 2007 and had two children. In December 2021, Kelly filed for divorce in Nevada, seeking sole legal and primary physical custody. By then Kelly had already moved back to California, while Jeremy still lived in Nevada. In April 2022, the district court entered a default divorce decree that gave Kelly sole legal and primary physical custody and stated that it was in the children's best interests to relocate to California with Kelly. Over the next year, both parents moved out of Nevada. Jeremy filed a change of address in July 2022 indicating a move from Reno to Montana. Kelly filed a change of address in July 2023 indicating a move from California to Pennsylvania. Shortly after Kelly's move, in August 2023, Jeremy filed a motion asking the court to enforce the divorce decree and/or to hold Kelly in contempt, alleging she had relocated the children to Pennsylvania without first getting permission or his consent. At a February 2024 hearing, Jeremy testified he was then in Arizona but not residing there, describing himself as a "fulltime traveler," said he was homeless, and confirmed his address on file was in Montana. Kelly testified she was in Pennsylvania with the children. After the hearing, Kelly filed a custody-modification petition in Pennsylvania, Jeremy filed one in Nevada, and Kelly asked the Nevada court to give up (relinquish) jurisdiction because everyone had left Nevada and proceedings were underway in Pennsylvania. Jeremy asked the Nevada court to hold a conference with the Pennsylvania court to resolve which state should handle the case. The Nevada district court then ruled. On the contempt issue, it found that although Kelly had relocated without seeking the court's permission, Jeremy had not filed the sworn statement (a fact-specific affidavit or declaration) required to support a contempt motion, so the court lacked jurisdiction to find contempt. On the larger jurisdictional question, the court found that once the parents and children no longer lived in Nevada, Nevada lost its "exclusive, continuing jurisdiction" over the custody dispute. After an informal conference with the Pennsylvania court, the two courts agreed Pennsylvania would take jurisdiction, so the Nevada court relinquished the case and denied Jeremy's Nevada custody-modification motion as moot. The Court of Appeals affirmed. It explained that under the law governing which state handles interstate custody cases, Nevada's continuing authority ends when the child, the parents, and anyone acting as a parent no longer live in Nevada. Because nobody disputed that all of them had left Nevada — and had been gone for more than a year before Jeremy filed his August 2023 motion — Nevada had lost that continuing authority. The court noted that Jeremy's complaint about the original decree letting the children move to California could not be reviewed now because he never appealed that decree in time. The court also said Jeremy failed to explain how Kelly's allegedly improper move to Pennsylvania would give Nevada authority to keep handling the case, and he did not point to the relevant statute or any supporting authority. Finally, the court found nothing in the record supporting Jeremy's claim that the district court was corrupt.