KRAGEN VS. DIST. CT. (KRAGEN)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals granted mandamus relief directed at Eighth Judicial District Court orders assuming UCCJEA jurisdiction and establishing temporary custody in a divorce action. On jurisdiction, the court reiterated that under NRS Chapter 125A, Nevada's codification of the UCCJEA, courts must first look to whether home state jurisdiction exists, citing NRS 125A.305(1)(a) and Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009) ("The UCCJEA thus elevates the 'home state' to principal importance in custody determinations."). "Home state" under NRS 125A.085(1) requires that the child lived in the state "for at least 6 consecutive months," and under NRS 10.025 a "month" means a calendar month unless otherwise expressed. Citing Kelly v. Kelly, 759 N.W.2d 721, 727 (N.D. 2009), the court emphasized the UCCJEA's strict jurisdictional requirements: residency of less than 6 months is insufficient. The court held the district court improperly relied on Erika's original California declaration as conclusive on the contested move date. Because the declaration was filed in a case before another court and was later amended, it may be considered as evidence if properly introduced but is not a binding judicial admission, citing Enquip, Inc. v. Smith-McDonald Corp., 655 F.2d 115, 118 (7th Cir. 1981), and, generally, Whittiesea Blue Cab Co. v. McIntosh, 86 Nev. 609, 612, 472 P.2d 356, 357-58 (1970). To the extent the district court suggested Erika was asserting an inconsistent position across the two proceedings, it failed to address the judicial estoppel factors, see Kaur v. Singh, 136 Nev. 653, 658, 477 P.3d 358, 363 (2020); the court also noted, cf. Friedman v. Eighth Judicial Dist. Court, 127 Nev. 842, 852, 264 P.3d 1161, 1168 (2011), that a court cannot obtain subject matter jurisdiction under the UCCJEA by estoppel or admission. Responding to Michael's argument that the district court made an unreviewable credibility determination, the court held that any such determination without an evidentiary hearing was an abuse of discretion, citing Nelson v. Eighth Judicial Dist. Court, 138 Nev., Adv. Op. 82, 521 P.3d 1179, 1185 (2022). His argument that missing transcripts must be presumed to support the decision was unavailing because the district court made clear its decision rested on the parties' declarations and nothing more. Given the conflicting evidence, the district court should have held an evidentiary hearing, citing Brandt v. Brandt, 268 P.3d 406, 413 (Colo. 2012), and Arcella v. Arcella, 133 Nev. 868, 871-72, 407 P.3d 341, 346 (2017) (quoting Mizrachi v. Mizrachi, 132 Nev. 666, 678, 385 P.3d 982, 990 (Ct. App. 2016)). Mandamus was warranted to compel the district court to vacate its jurisdictional orders and conduct an evidentiary hearing, see Lewis v. Second Judicial Dist. Court, 113 Nev. 106, 112, 930 P.2d 770, 774 (1997) (citing Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981)). If home state jurisdiction is unavailable, the court may then consider other bases for jurisdiction under NRS 125A.305. In a footnote, the court rejected Michael's argument that 6 months' UCCJEA residency is not required when all parents and the children live in the same state, noting he pointed to no authority and that the parents were not living in the same state when the actions were filed. On temporary custody, the court held that the district court lacked authority to issue a temporary custody order before determining that it had jurisdiction and while the more restrictive California emergency custody order was in place, citing Lewis, 113 Nev. at 108, 930 P.2d at 772 ("a determination of subject matter jurisdiction by the district court is a threshold requirement"). Upholding the joint custody order without taking evidence or making best-interest findings despite Erika's domestic violence allegations "was a manifest abuse of discretion." Although joint legal and physical custody are generally preferred, NRS 125C.002; NRS 125C.0025, substantiated allegations of domestic violence must be considered in making any custody determination, see NRS 125C.0045(1)(a); NRS 125C.0035(5); see generally Feaster v. Feaster, 452 S.E.2d 428, 429 (W. Va. 1994). If the district court determines after an evidentiary hearing that it has jurisdiction, it must reconsider its temporary custody order in light of any supported domestic violence allegations, see NRS 125C.0035(4)(k) and (5).

In plain language

Erika and Michael Kragen have three minor children. The family lived in California before moving to Nevada in early August 2022. By January 31, 2023, Erika had moved back to California with the children while Michael stayed in Nevada. Michael then filed for divorce in Nevada; two days later, Erika filed for legal separation and a domestic violence restraining order in California. Both sought custody, which raised the question of which state's courts had the power to decide custody. That question turns on a law called the UCCJEA (the Uniform Child Custody Jurisdiction and Enforcement Act, which Nevada has adopted). Under that framework, the children's "home state" - generally, the state where the children lived for at least six consecutive months before the case started - has first priority to decide custody. Here, the exact date the family moved to Nevada mattered enormously: if they arrived on August 1, 2022, the children may have lived in Nevada for the required six months; if they arrived on August 3 or 4, they did not. The parties' paperwork conflicted. Michael's filings and a U-Haul receipt suggested an August 1 move; Erika's filings, a different U-Haul receipt, text messages, and a bank statement suggested the family left California on the night of August 3 and arrived in Nevada on August 4. Erika had originally filed a declaration in the California case stating the move date as August 1, but she later amended it to say August 3. The Nevada district court found that the family had lived in Nevada from August 2022 through January 2023 - six months - and concluded it had home state jurisdiction. It based that decision on the parties' declarations, treating Erika's original California declaration (with the August 1 date) as binding. Before determining jurisdiction, the court had also issued a temporary custody order giving both parents joint legal and physical custody on a week-on/week-off schedule - even though a California court had already entered a restraining order temporarily giving Erika sole legal and joint physical custody and limiting Michael to supervised visits. The Nevada court did not take testimony and said it would not consider Erika's domestic violence allegations until trial. The Court of Appeals granted Erika's petition for a writ of mandamus - a court order compelling a lower court to do something it is required to do. The appellate court held that Erika's original California declaration was not a binding "judicial admission" because it was filed in a different case and was later amended; it could be considered as evidence, but it was not conclusive on the disputed move date. Because the evidence about the move date conflicted, the district court was required to hold an evidentiary hearing - a proceeding where witnesses testify and evidence is formally presented - before deciding whether it had jurisdiction. The appellate court also held that the district court lacked authority to issue a temporary custody order before determining it had jurisdiction, and that granting joint custody without any findings on the children's best interest, despite Erika's domestic violence allegations, "was a manifest abuse of discretion." The district court must now vacate its jurisdictional orders, hold an evidentiary hearing, and - if it finds it has jurisdiction - reconsider temporary custody in light of any supported domestic violence allegations.