LEE VS. HOLLINGS (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court reviewed the district court's child custody determinations for an abuse of discretion, citing Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). On the timeshare modification, the court applied the two-part modification standard from Romano v. Romano, 138 Nev. 1, 5, 501 P.3d 980, 983 (2022): the movant must show "(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." The changed-circumstances prong rests on res judicata and, per Ellis, 123 Nev. at 151, 161 P.3d at 243, prevents dissatisfied litigants from filing "immediate, repetitive, serial motions until the right circumstances or the right judge allows them to achieve a different result, based on essentially the same facts." The movant must generally establish a change occurring since the last custody determination. Because Khalifa's December motion was substantively identical to his August motion filed roughly three weeks earlier and identified no changed circumstances, the court discerned no abuse of discretion in the district court declining to revisit the issue. The court further noted that any challenge to the August 2021 order was not properly before it because that order was independently appealable as a special order entered after final judgment under NRAP 3A(b)(8), and Khalifa filed no notice of appeal from it. An additional argument regarding extracurricular activities was deemed waived under Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). On the name change, the court recognized under Petit v. Adrianzen, 133 Nev. 91, 94-95, 392 P.3d 630, 632-33 (2017), that the child's best interest is the sole consideration for a surname change and that the substantial-change-in-circumstances analysis does not apply. Nonetheless, the court held that serial motions are disfavored, citing Ellis and Brandon v. West, 29 Nev. 135, 142, 88 P. 140, 141 (1906) ("[a] second application for the rehearing of a cause by the same party, after his petition for rehearing has been denied, will not be entertained"). Because the second request came about three weeks after the first denial and presented no new facts, the court upheld the denial. In a footnote, the court observed the first request may have been denied on ripeness grounds under Resnick v. Nev. Gaming Comm'n, 104 Nev. 60, 65-66, 752 P.2d 229, 233 (1988), because Khalifa had not yet obtained his own name change, and noted that his subsequent name change during the appeal supplies new facts permitting a fresh motion on remand, on which the court expressed no opinion. On the passport, the court first addressed ripeness sua sponte, noting under Landreth v. Malik, 127 Nev. 175, 179, 251 P.3d 163, 166 (2011), and Duke City Lumber Co. v. Buiz, 539 F.2d 220, 221 n.2 (D.C. Cir. 1976), that ripeness implicates subject matter jurisdiction and may be raised at any time. Applying the ripeness factors from Herbst Gaming, Inc. v. Heller, 122 Nev. 877, 887, 141 P.3d 1224, 1231 (2006) — the hardship of withholding review and the suitability of the issue for review — and the requirement of a "sufficiently concrete" rather than "remote or hypothetical" harm, the court found the controversy ripe. Under 22 C.F.R. § 51.28(a)(2), (3) (2019), both parents generally must execute a passport application for a child under 16, or a court may order issuance on one parent's signature; Hollings' unwillingness to sign presented a concrete, present harm given the lengthy passport process. The district court was therefore required to evaluate the request under the child's best interest standard, citing NRS 125C.0045(1)(a) and Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015). Because the court denied the request summarily without written best-interest findings, the panel could not confirm the ruling rested on correct legal reasoning, citing Davis, 131 Nev. at 450, 352 P.3d at 1142 ("deference is not owed to legal error or to findings so conclusory they may mask legal error"), and Williams v. Waldman, 108 Nev. 466, 471, 836 P.2d 614, 617-18 (1992). The court reversed and remanded the passport issue.

In plain language

Khalifa and Monique Hollings were never married but have one child together. Early in the case, they reached a parenting agreement, and the court entered a custody arrangement based on it that gave both parents joint legal and physical custody. After problems arose with Khalifa's housing, Hollings asked the court to give her primary physical custody, and the court granted that on a temporary basis. Khalifa later asked the court to restore joint physical custody and to switch to a "week-on-week-off" schedule (one week with each parent), arguing that his housing problem was resolved and that this schedule would let the child spend more time with a half-sibling from Khalifa's earlier relationship. He also said he was legally changing his own last name and wanted the child's last name changed to match. In August 2021, the court restored joint physical custody but refused the week-on-week-off schedule, finding no substantial change in circumstances and that such a schedule was not appropriate for a three-year-old. It also denied the name-change request. About three weeks later, Khalifa filed another motion repeating his requests for the week-on-week-off schedule and the name change, and then amended it to add a new request: permission to get a passport for the child so he could travel internationally with her in the future. Hollings opposed the original motion but did not respond to the passport request. In December 2021, the court denied the repeated timeshare and name-change requests because it had already ruled on them in August, and it denied the passport request without explanation. Khalifa appealed. The appeals court reached three conclusions. First, on the week-on-week-off schedule, the court explained that once a custody issue has been decided, a parent generally cannot simply refile the same request hoping for a different answer. Khalifa's second request pointed to no new circumstances since August, so the court found no error in the district court refusing to revisit it. Second, on the name change, the court noted that requests to change a child's surname are judged by the child's best interest, not by whether circumstances have substantially changed. Even so, repeatedly refiling the same request without new facts is disfavored, and Khalifa's second name-change request offered nothing new, so the court upheld the denial. The court added, however, that because Khalifa had since actually obtained his own legal name change during the appeal, nothing prevents him from filing a new name-change motion for the child on remand with those new facts — while expressing no view on whether such a motion should succeed. Third, on the passport, the court disagreed with the reasoning that the request was premature. Because getting a passport for a young child generally requires both parents' signatures — or a court order when only one parent will sign — and because the process is lengthy and Hollings had not been cooperating, Khalifa faced a real, present obstacle. That made the issue ready for the court to decide. The district court was therefore required to consider whether allowing the passport was in the child's best interest, but it denied the request without making any findings. The appeals court reversed that part and sent the passport issue back for further proceedings.