HOPPER VS. HOPPER (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court reversed a change of primary physical custody for failure to satisfy the first prong of the modification standard. A change in custody is warranted only when '(1) the circumstances of the parents have been materially altered; and (2) the child's welfare would be substantially enhanced by the change.' Wiese v. Granata, 110 Nev. 1410, 1413, 887 P.2d 744, 746 (1994) (quoting Murphy v. Murphy, 84 Nev. 710, 711, 447 P.2d 664, 665 (1968)). Custody determinations are reviewed for clear abuse of discretion, and the trial court is presumed to have properly exercised its discretion. Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993). In a footnote the court distinguished Truax v. Truax, 110 Nev. 437, 874 P.2d 10 (1994), noting the Murphy changed-circumstances prong does not apply to modification of joint physical custody (governed solely by best interest, codified at NRS 125.510(2)), but held both Murphy prongs applicable because the decree gave Jayme primary physical custody. On the merits, the court emphasized that the movant must show circumstances have substantially changed since the most recent custodial order, and that events predating that order are inadmissible to establish changed circumstances. McMonigle v. McMonigle, 110 Nev. 1407, 1408, 887 P.2d 742, 743 (1994). Each ground the district court cited - Jayme's excessive yelling, her failure to facilitate the father-child relationship, and her lack of transportation - existed at the time of the August 11, 1995 divorce decree, as reflected in Steve's pre-decree motion and the court's own prior order. The court further held no evidence supported the finding that the custody award was conditioned on an alleged oral agreement (to obtain help for yelling, not live in Hollywood, and expand visitation), reasoning that terms of such magnitude should have been reduced to writing in one of the three documents granting Jayme primary custody; cf. Khaldy v. Khaldy, 111 Nev. 374, 377, 892 P.2d 584, 586 (1995). Because Steve failed the first Murphy prong, the court did not reach the remaining issues and reversed with instructions to reinstate Jayme as primary physical custodian.

In plain language

Jayme and Steve Hopper divorced in August 1995. Their divorce decree gave Jayme primary physical custody of their six-year-old daughter, Anna, and expressly allowed Jayme to move with Anna to California. About six months later, following a change-of-custody hearing, the district court switched primary physical custody to Steve, finding a material change in circumstances and that the change served Anna's best interest. The court pointed to Jayme's yelling and excessive discipline of Anna, her failure to foster Anna's relationship with Steve, her lack of transportation, the distance between the parents, and an alleged oral promise by Jayme (to get help for her yelling and allow more visitation) that supposedly induced Steve to agree to the decree. Jayme appealed. The Nevada Supreme Court reversed. It explained that to change custody a parent must show both (1) a material change in the parents' circumstances and (2) that the child's welfare would be substantially enhanced by the change - and, critically, the change in circumstances must have occurred since the most recent custody order. Events predating that order cannot be used to show changed circumstances. The court held that every ground the district court relied on - Jayme's yelling, her failure to facilitate Steve's relationship with Anna, and her lack of transportation - already existed at the time of the August 1995 divorce decree. Steve knew about Jayme's yelling (he had raised it before the decree) yet agreed she should have primary custody. The court also found no evidence supporting the claim that the custody award was conditioned on an oral side agreement, noting that such significant terms should have appeared in one of the three written documents (two parenting plans and the decree) that all gave Jayme primary custody. Because there was no material change in circumstances since the decree, the first requirement was not met, and the court reversed and ordered Jayme reinstated as primary physical custodian.