KURZ VS. ANTHONY (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the custody modification under the abuse-of-discretion standard, noting that a district court has "broad discretionary powers to determine child custody matters" and that its determinations will not be disturbed "absent a clear abuse of discretion," citing Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). On the change-in-circumstances issue, the court applied the two-prong Ellis framework: "[A] modification of primary physical custody is warranted only when (1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child's best interest is served by the modification." Ellis, 123 Nev. at 150, 161 P.3d at 242. The moving party bears the burden on both prongs. Id. at 151, 161 P.3d at 242-43. The court explained that a change in a parent's circumstances can satisfy the first prong "so long as the court can sufficiently tether the parent's change in circumstances to a substantial change in the child's wellbeing," citing Godifay v. Asgedom, No. 64289, 2015 WL 9597499, at *2 (Nev. Dec. 30, 2015) (Order of Reversal and Remand) (citing Silva v. Silva, 136 P.3d 371, 377 (Idaho Ct. App. 2006)), and further citing Maurice v. Maurice, No. 83009-COA, 2022 WL 214014, at *1-2 (Nev. Ct. App. Jan. 24, 2022) (Order of Reversal and Remand), and Giddens v. Giddens, No. 72533-COA, 2018 WL 2130845, at *1-2 (Nev. Ct. App. Apr. 30, 2018) (Order of Reversal and Remand). Applying that standard, the court held there was no abuse of discretion, because the district court tethered Scott's relocation to positive, substantial changes in M.A.'s life, including increased parenting time and a regular, loving relationship, such that the child "enjoys his time with his father and they have a loving relationship." On the evidentiary issue, the court reviewed the exclusion of the letter for abuse of discretion, citing M.C. Multi-Fam. Dev., L.L.C. v. Crestdale Assocs., Ltd., 124 Nev. 901, 913, 193 P.3d 536, 544 (2008). The court applied the preservation rule that "[w]hen an appellant fails to argue the proper hearsay exception before a district court, the appellant cannot argue that hearsay exception for the first time on appeal," citing Guy v. State, 108 Nev. 770, 780, 839 P.2d 578, 584 (1992), and Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (issues not argued below are "deemed to have been waived and will not be considered on appeal"). Because Katarina argued only the business records exception (NRS 51.135) below and raised the public records exception (NRS 51.155) for the first time on appeal, and because those are two distinct exceptions, the court declined to consider the newly raised exception. The court further observed that domestic violence is a best-interest factor under NRS 125C.0035(4)(k), but agreed with the district court that the Nebraska divorce decree contained no finding of domestic violence and imposed no additional restrictions on Scott's parenting time, which would have been required had such a finding been made, citing Neb. Rev. Stat. § 43-2932(1)(b) (2016). In a footnote, the court alternatively concluded that any error in excluding the letter was harmless under Beattie v. Thomas, 99 Nev. 579, 586, 668 P.2d 268, 272-73 (1983), because the district court in fact considered and rejected the domestic-violence allegation, finding it "did not receive credible evidence that Scott engaged in an act of domestic violence against either [M.A.] or Katie/Katarina," and because Katarina testified she had no present concerns with Scott's care of M.A.

In plain language

Scott Anthony and Katarina Kurz married in Nevada in 2008, later moved to Nebraska, and had one child, M.A., born in 2014. They separated in early 2017, and Katarina moved back to Nevada. Scott filed for divorce in Nebraska. The Nebraska divorce decree gave Katarina sole legal and physical custody and permission to relocate to Nevada with the child, while giving Scott roughly 70 to 75 days of parenting time per year without restrictions. According to the opinion, the divorce decree did not include a finding that Scott had committed domestic violence, even though Katarina had alleged it during the divorce. In 2020, Scott moved to Nevada. Katarina then agreed to give him extra time with M.A. but would not agree to split time 50/50. Scott went to a Nevada court and asked to change custody to joint physical and legal custody. Katarina opposed this. At the hearing, she again raised her claim that Scott had committed domestic violence in Nebraska, and she argued it was best for the child that she keep sole custody. To back up her domestic-violence claim, Katarina tried to introduce a letter she said was written by the Nebraska divorce judge. The letter, in a section titled "REMOVAL," stated that the evidence supported a finding that Katarina had moved from Omaha in part because "she had suffered physical abuse by [Scott]." Scott objected, arguing the letter was hearsay - an out-of-court statement offered to prove the truth of what it says, which is generally not allowed as evidence. Katarina argued the letter fit the "business records" exception, a rule that lets certain routine business records in despite the hearsay bar. The district court refused to admit the letter, finding it did not fit any hearsay exception. After the hearing, the district court found that Scott had shown a substantial change in circumstances affecting the child's welfare and that switching to joint legal and physical custody was in M.A.'s best interest. The court granted Scott's request. On appeal, the Court of Appeals affirmed. First, it held that the district court did not abuse its discretion in treating Scott's move to Nevada as a substantial change in circumstances, because the district court connected that move to concrete, positive changes in the child's life - more parenting time with Scott and a regular, loving relationship with his father. Second, the appeals court addressed the excluded letter. In the district court, Katarina had argued only that the letter qualified under the business records exception. On appeal, she switched to a different rule, the public records exception. The Court of Appeals declined to consider the new argument because she had not raised it in the lower court, and Nevada treats the business records exception and the public records exception as two separate rules. The court also noted that the Nebraska divorce decree contained no finding of domestic violence and imposed no restrictions on Scott's parenting time, which Nebraska law would have required had such a finding been made. The court added that even if excluding the letter had been an error, it would have been harmless: the district court did in fact consider Katarina's domestic-violence allegation, found no credible evidence supporting it, and Katarina testified she had no present concerns about Scott's care of the child.