JOHNSON VS. JOHNSON (CHILD CUSTODY)

Key holdings

Practitioner summary

The court addressed appealability and the tender years doctrine in a custody modification. An order denying objections to findings of fact and conclusions of law is not an appealable special order made after final judgment under NRAP 3A(b). French v. French, 91 Nev. 248, 533 P.2d 1357 (1975). The only cognizable issue was whether the award of custody to the father was proper under the tender years doctrine of Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969). Whether a child is of tender years cannot be mechanically defined and is subject to the discretionary powers of the trial court on the facts of each case. Smith v. Smith, 90 Nev. 422, 529 P.2d 209 (1974). The district court could permissibly find that children aged 16 and 10 were not of tender years when the final order was entered, found the children were satisfied with the father as custodian and that his custody served their best interest, and no clear abuse of discretion was shown. Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1 (1974).

In plain language

Donna and William Johnson divorced in 1971, and the father initially received temporary custody of the children. After several modifications, a final modification order entered in May 1973 awarded the father permanent custody of the two remaining minor children, who were then 16 and 10 years old. The mother appealed. The Nevada Supreme Court first held that one of the orders the mother tried to challenge, an order denying her objections to the findings of fact and conclusions of law, was not the kind of order that can be appealed. The only issue the court could properly consider was whether awarding custody to the father was correct under the "tender years" doctrine, which generally favors placing very young children with their mother if she is fit. The court explained that whether a child is of "tender years" cannot be decided by a mechanical rule and is left to the trial court's discretion based on the facts of each case. Here, the district court could permissibly find that children aged 16 and 10 were not of tender years when the final order was entered. The court also noted the trial court's findings that the children were satisfied with their father as custodian and that his custody served their best interest. Finding no clear abuse of discretion, the court affirmed.