JONES VS. CONWAY (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

This is an appeal from a post-divorce decree order denying relocation and modifying child custody. The court reviewed the district court's legal conclusions de novo, citing Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1227 (2004), and reviewed the district court's decision concerning child custody and relocation for an abuse of discretion, also citing Flynn. The custody framework arose from a settlement decree granting joint legal custody with Latisha exercising primary physical custody. Following a motion for an order to show cause, the parties stipulated to an order providing that neither party could relocate without first obtaining written/email permission from the other parent or first petitioning the court, and that neither could "move first and ask for forgiveness later." After Latisha relocated to Louisiana with the children, Kevin moved for their return and for primary physical custody; Latisha filed an opposition and countermotion for relocation, admitting the relocation had already occurred. Following an evidentiary hearing, the district court concluded that Latisha violated NRS 125C.006 by failing to obtain Kevin's written consent or seek court permission before relocating, failed to provide a compelling excuse for noncompliance, and failed to make a threshold showing in favor of relocation under NRS 125C.007. The court determined that the children's best interests would be served by awarding Kevin primary physical custody. On appeal, the court addressed two arguments. First, as to the claim that the district court failed to properly apply NRS 125C.006 - which requires a custodial parent intending to relocate with a child to a place outside the state at such a distance that would substantially impair the other parent's ability to maintain a meaningful relationship to attempt to obtain the other parent's written consent and, failing that, the court's permission before relocating (NRS 125C.006(1)(a)-(b)) - the court held that Latisha failed to set forth any cogent explanation of how the district court misapplied the statute, citing Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). Because it was undisputed that Latisha relocated with the children from Nevada to Louisiana without first obtaining Kevin's consent or the court's permission, the court discerned no error in the conclusion that she violated the statute. Second, as to the argument that the district court failed to consider evidence of domestic violence, the court held the issue was waived because Latisha did not raise it at the evidentiary hearing and neither party testified nor admitted any evidence on the subject, citing Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A point not urged in the trial court . . . is deemed to have been waived and will not be considered on appeal."). In a footnote, the court also rejected any contention that the district court failed to consider evidence submitted on July 22, 2022, and August 2, 2022, noting the record reflected only an objection to untimely discovery requests and a pretrial memorandum, neither with exhibits attached. Finding that Latisha otherwise failed to demonstrate that the district court abused its discretion, the court affirmed.

In plain language

Latisha Jones and Kevin Conway divorced through a settlement. Their divorce decree gave them joint legal custody of their two children, but Latisha had primary physical custody, meaning the children lived mainly with her. Soon after the divorce, Kevin asked the court to intervene, claiming Latisha was not following the decree - including that she had left the state multiple times, once with the children, without telling him, which cost him some of his parenting time. After a hearing, both parties agreed to an order stating that neither of them could relocate without first getting written or email permission from the other parent or first asking the court, and that neither could "move first and ask for forgiveness later." Kevin later told the court that Latisha had moved with the children to Louisiana. He asked the court to order the children returned and to give him primary physical custody. Latisha responded by admitting she had already moved to Louisiana with the children and asking the court to allow the move after the fact. The court held an evidentiary hearing (a hearing where witnesses testify and evidence is presented), then denied Latisha's request to relocate and gave Kevin primary physical custody. The district court found that Latisha did not get Kevin's written consent or ask the court's permission before moving, which the court concluded violated a Nevada relocation statute. The court also found she gave no compelling excuse for not following the law and did not meet the initial requirements to justify relocation under a related statute. Finally, the court decided that the children's best interests were served by placing them with Kevin. Latisha appealed. The Court of Appeals of the State of Nevada affirmed - meaning it upheld the lower court's decision. On her first argument, the appeals court said Latisha did not clearly explain how the district court supposedly misapplied the relocation law, and it was undisputed that she had in fact moved with the children out of Nevada without permission. On her second argument, the court said Latisha never raised the domestic violence issue at the evidentiary hearing and no evidence about it was presented there, so the issue was "waived" - given up by not raising it at the proper time - and could not be considered on appeal. Finding no abuse of discretion, the court affirmed.