JOHNSON VS. JOHNSON (GUARDIANSHIP)

Statutes cited

Key holdings

Practitioner summary

The court consolidated the mother's appeals from (1) the decree of divorce, insofar as it did not award her custody of one child and allegedly misstated the father's visitation, and (2) the order denying her petition to terminate a guardianship. In 1967 both natural parents had consented in writing to appointment of the child's paternal grandmother as guardian; during the later divorce the mother was granted a divorce and custody of the four other children and found fit, but her petition to terminate the guardianship was denied. Guardianship jurisdiction: While an order appointing a guardian stands, any independent action to award custody of that child to a parent or anyone else is precluded. Clark v. Clark, 80 Nev. 52, 389 P.2d 69 (1964). District courts derive guardianship jurisdiction directly from Nev. Const. art. 6, sec. 6, and NRS 3.210; jurisdiction does not depend on a finding that the appointment was 'necessary and convenient' - that is a requirement of proof, not an element of jurisdiction. With both parents' written consent and all parties present when the appointment was entered, jurisdiction was beyond question, and any attack on the sufficiency of the evidence had to be launched within the prescribed times or be barred. Denial of termination: A finding that the mother was fit to have custody of the other children did not, as a matter of law, compel termination of the guardianship. Absent a transcript or NRCP 75(n) statement of the evidence, the court presumed the trial court found the parental-preference presumption overcome and that its findings, being within the issues raised by the pleadings, were supported by the evidence. NRS 125.140(1); NRS 159.050; Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701 (1970); Noble v. Noble, 86 Nev. 459, 470 P.2d 430 (1970). A trial judge has wide discretion in matters of the care, custody, and control of a minor, disturbed only for clear abuse. Visitation correction: The uncontroverted 'every other week' visitation provision was a clerical mistake correctable under NRCP 60(a); the decree was modified to allow the father visitation every other weekend. The order denying termination was affirmed and the decree affirmed as modified.

In plain language

In 1967, the mother and father of a young girl, Susie DeeLin, both signed a written consent appointing the child's paternal grandmother as her legal guardian. Two years later the parents' marriage broke down and the father filed for divorce. During the divorce, the mother asked the court to end the grandmother's guardianship so she could have Susie DeeLin back. The trial court granted the mother a divorce, found her a fit mother, and awarded her custody of the couple's four other children - but refused to terminate the guardianship over Susie DeeLin. The mother appealed on two fronts. First, she argued that because the court found her fit to raise the other four children, it had to give her Susie DeeLin too. Second, she argued the original guardianship was invalid because the court that appointed the grandmother never specifically found the appointment 'necessary and convenient.' The Nevada Supreme Court rejected both arguments and affirmed. On jurisdiction, it explained that district courts get their power over guardianships directly from the Nevada Constitution and statute (NRS 3.210); a specific finding of 'necessity and convenience' is a matter of proof, not a requirement for the court to have jurisdiction. Since both parents had consented and everyone was present in court, the appointment was valid, and any challenge to the sufficiency of the evidence had to be brought within the proper time limits or be lost. On the refusal to terminate, the court noted the mother never provided a transcript of the guardianship-termination hearings. Without a record of the evidence, the court had to presume the trial judge properly found that the usual preference for a parent had been overcome, and that his ruling was supported by the evidence. A finding that the mother was fit for the other children did not, as a matter of law, require ending the guardianship of Susie DeeLin. Finally, the court corrected one clerical error: the divorce decree mistakenly gave the father visitation 'every other week' instead of 'every other weekend,' which the father conceded; the court modified the decree to fix that typographical mistake and otherwise affirmed.