IN RE: GUARDIANSHIP OF M.J.M AND F.M.M. (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court reviewed the denial of Andrew's NRCP 60(b)(6) motion for abuse of discretion, citing Vargas v. J Morales, Inc., 138 Nev., Adv. Op. 38, 510 P.3d 777, 780 (2022). Applying the rule that NRCP 60(b)(6) relief is reserved for "extraordinary circumstances" and is unavailable where another subsection of NRCP 60(b) would govern, the court characterized Andrew's allegation - that Melanie represented she had served him at his "last known address" when she should have served by publication - as falling within NRCP 60(b)(3) (misrepresentation by an opposing party). Per Vargas, 510 P.3d at 781, a party cannot use NRCP 60(b)(6) to obtain relief properly available under NRCP 60(b)(1)-(5). The court therefore found no abuse of discretion. On the co-guardianship appointment, the court invoked NRCP 61 (harmless error) to reject Andrew's procedural-defect challenges absent any showing of prejudice to substantial rights, and applied the deferential standard from In re Guardianship of L.S. & H.S., 120 Nev. 157, 163, 87 P.3d 521, 525 (2004) ("Absent a showing of abuse, we will not disturb the district court's exercise of discretion concerning guardianship determinations."). The district court's stated rationale - access to better health insurance through Jimmy's veteran benefits - was held not to be an abuse of discretion. On the request to remove Melanie as guardian, the court applied NRS 159A.185(1) (district-court discretion to remove guardians for enumerated reasons) and NRS 159A.186(1) (a court "shall not remove the guardian or appoint another person as guardian unless the court finds that removal of the guardian or appointment of another person as guardian is in the best interests of the protected minor"). It noted that the reporting issues were minor; Andrew himself disclaimed any objection to the Florida move (which the district court ultimately approved); and the best-interest factors of NRS 159A.186(2) supported continuation of the guardianship - the children had been placed with Melanie for four years, she met their basic needs in a safe home, there was a strong emotional bond, and they were prospering. The court further held, in footnote 3, that no evidentiary hearing was required because Andrew failed to articulate any best-interest argument warranting removal. On attorney fees, the court dismissed for lack of jurisdiction, holding the appeal premature because the district court had not yet determined the amount of fees. The court cited Nelson v. United States, 40 F.4th 1105, 1110 (10th Cir. 2022), for the proposition that an order awarding attorney fees without fixing the amount is not appealable. The court noted in footnote 4 that the parties agreed remand was necessary as to the legal basis for the fee award.

In plain language

The case involves two minor children whose mother is deceased and whose father, Andrew M., is the appellant. In 2018, the children's maternal grandmother, Melanie Dixon, asked the district court to make her their guardian, and the court did so. Two years later, Andrew asked the court to end the guardianship, saying he had never been served with the original petition even though Melanie knew where he was. The district court refused, and later refused again when Andrew asked it to set aside its decision under a rule that allows courts to undo prior orders in exceptional circumstances. The district court also added Melanie's husband, Jimmy Dixon, as a co-guardian so the children could be covered by his veterans' health insurance. Andrew filed a series of additional requests - asking the court to order reunification therapy, to remove the Dixons as guardians (arguing they had not filed required reports and had moved the children to Florida without permission), to bring in a different therapist, and to appoint a guardian ad litem (an independent advocate for the children). The district court denied all of these and ordered Andrew to pay Melanie and Jimmy's attorney fees. On appeal, the Nevada Supreme Court affirmed the district court on every issue it could reach. It held that Andrew's claim that Melanie misled the court about service was, at best, a claim of "misrepresentation by an opposing party" - which falls under a different subsection of the rule than the one Andrew used, so he could not get relief under the catchall subsection he invoked. The court found no abuse of discretion in adding Jimmy as co-guardian (because the children would benefit from his veterans' health benefits) or in keeping Melanie as guardian (the children had lived with her for four years, were doing well, and Andrew himself said he had no objection to the Florida move). The court declined to rule on the attorney fees issue because the district court had not yet set the dollar amount, making that part of the appeal premature; the court dismissed that portion for lack of jurisdiction.