LEE VS. PERRY (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

**Due process challenge.** The court restated that "[P]rocedural due process requires notice and an opportunity to be heard," Callie v. Bowling, 123 Nev. 181, 183, 160 P.3d 878, 879 (2007), and that "[d]ue process is satisfied where interested parties are given an opportunity to be heard at a meaningful time and in a meaningful manner," Mesi v. Mesi, 136 Nev. 748, 750, 478 P.3d 366, 369 (2020). It acknowledged that due process may be violated where a party lacks notice that the court will consider a specific issue, citing Wallace v. Wallace, 112 Nev. 1015, 1020, 922 P.2d 541, 544 (1996). Applying these standards, the court found that Joshua's April 2024 pretrial memorandum identified jurisdiction and legal and physical custody as unresolved issues; that an April 2024 hearing confirmed the evidentiary hearing would address subject matter jurisdiction, the order to show cause, and custody; and that Joshua's motion for reconsideration—served via the court's electronic filing system under NRCP 5(b)(2)(E) and opposed by Nae-Ryung—specifically requested the court assume jurisdiction and adjudicate custody. Citing Matter of Guardianship of D.M.F., 139 Nev. 342, 351, 535 P.3d 1154, 1163 (2028) [as printed], the court held notice was "reasonably calculated, under all the circumstances," to apprise her of the action. The court rejected the sua sponte amendment argument given Joshua's pending reconsideration motion and Nae-Ryung's own motion to reconsider, which acknowledged receiving notice of the December 2024 hearing. **NRCP 60(a) reliance.** The court addressed Nae-Ryung's argument that the amended decree improperly relied on NRCP 60(a) (authorizing correction of "a clerical mistake or a mistake arising from oversight or omission"). Because the amendment responded to the parties' motions for reconsideration under NRCP 59(e), the court held any error in invoking NRCP 60(a) was harmless under Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010), and cf. NRCP 61. **Legal custody.** Reviewing for abuse of discretion under Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007), and Mack-Manley v. Manley, 122 Nev. 849, 857, 138 P.3d 525, 531 (2006), the court applied the legal-custody framework of Rivero v. Rivero, 125 Nev. 410, 420, 216 P.3d 213, 221 (2009), overruled on other grounds by Romano v. Romano, 138 Nev. 1, 6, 501 P.3d 980, 984 (2022), and the statutory joint-legal-custody presumption under NRS 125C.002(1)(a). That presumption is overcome where the court finds the parents unable to cooperate, communicate, and compromise in the child's best interest. The court affirmed factual findings supported by substantial evidence, "which is evidence that a reasonable person may accept as adequate to sustain a judgment," Ellis, 123 Nev. at 149, 161 P.3d at 242, deferring to credibility determinations under Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009), while noting under Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015), that deference is not owed to legal error or conclusory findings. Based on Nae-Ryung's withholding of the child since November 2022, her noncompliance with the December 2023 order, and her procurement of a South Korean passport without Joshua's consent, the court discerned no abuse of discretion in awarding sole legal custody. **Physical custody.** The court again applied abuse-of-discretion review, Ellis, 123 Nev. at 149, 161 P.3d at 241, and Wallace, 112 Nev. at 1019, 922 P.2d at 543 ("A court decision regarding [parenting time] is a custody determination."). The dispositive framework was Roe v. Roe, 139 Nev. 163, 535 P.3d 274 (Ct. App. 2023). Under Roe, a court abuses its discretion when it "improperly characterize[s] its custodial award as primary physical custody when it [is] in actuality sole physical custody," id. at 164-65, 535 P.3d at 281, with sole physical custody defined as "a custodial arrangement where the child resides with only one parent and the noncustodial parent's parenting time is restricted to no significant in-person parenting time," id. at 174, 535 P.3d at 287. Although the district court conducted an extensive NRS 125C.0035(4) best interest analysis supporting an award labeled primary physical custody, the resulting arrangement—weekly supervised parenting time only—functionally constituted sole physical custody. The court held the district court abused its discretion by mischaracterizing the award and failed to make the findings Roe requires: a specific finding either that the noncustodial parent is unfit for the child to live with or that awarding primary physical custody is not in the child's best interest, id. at 175, 535 P.3d at 288, plus consideration of the "least restrictive parenting time arrangement possible," with an explanation of how greater restrictions serve the child's best interest, id. at 175-76, 535 P.3d at 288. The court reversed the physical custody and parenting time decisions and remanded for the district court either to impose a primary physical custody arrangement providing sufficient parenting time, or to make appropriate Roe findings supporting sole physical custody.

In plain language

This case concerns a divorce and a fight over custody of a young child born in March 2019. Nae-Ryung Lee and Joshua Lee Perry were married and lived in San Diego, California. In October 2021, the family vacationed in South Korea, Nae-Ryung's home country. In June 2022, Joshua and the child returned to the United States and moved to Las Vegas to live with the child's paternal grandmother, while Nae-Ryung initially stayed in South Korea before joining them in Las Vegas in August 2022. After living with the family for several months, Nae-Ryung accused Joshua of "kidnapping" the child, claiming the parties had agreed to return to South Korea. She filed for divorce in Las Vegas in October 2022, asking for primary physical custody, permission to move with the child, and an order keeping Joshua from leaving the state with the child. The case had a long and tangled procedural history. The district court first decided Nevada was not the child's "home state" and threw out the custody portion of the case. Joshua appealed, and the Court of Appeals reversed, saying the trial court had failed to consider whether Nevada might have jurisdiction (the legal power to decide the case) on other grounds. Meanwhile, the child had been with Nae-Ryung in South Korea since November 2022, and Joshua filed a case there under the Hague Convention (an international agreement dealing with the return of children) seeking the child's return. Back in Nevada, the court went through several rounds of hearings, orders, motions to reconsider, and reversals of its own prior rulings. At one point it took "temporary emergency jurisdiction" and awarded Joshua temporary custody, then later set that aside, then later still—after Joshua asked it to reconsider—decided that Nevada did have exclusive and continuing jurisdiction and awarded Joshua sole legal and sole physical custody. Nae-Ryung repeatedly did not appear at hearings. Eventually, in June 2025, the court issued an amended decree giving Joshua sole legal custody and primary physical custody, with Nae-Ryung allowed weekly supervised parenting time. This appeal followed. On appeal, Nae-Ryung made three main arguments. First, she said the court improperly changed its own decree more than a year after entering it and did so without giving her notice that the result could be a final custody order against her—violating her right to due process (fair notice and a chance to be heard). The Court of Appeals disagreed. It pointed to the record showing that custody was clearly identified as an issue for the evidentiary hearing, that Joshua's motion asking the court to decide custody had been served on her, and that she had filed an opposition and received notice of the hearings she failed to attend. The court concluded she had adequate notice and an opportunity to be heard. Second, she argued the court wrongly relied on a rule meant for fixing clerical mistakes (NRCP 60(a)) to justify its decision. The Court of Appeals concluded that even if relying on that rule was an error, it was harmless because the court was actually responding to the parties' motions for reconsideration. Third, she challenged the custody awards themselves. On legal custody (the authority to make major decisions about the child's health, education, and upbringing), the court found no abuse of discretion: the trial court had pointed to Nae-Ryung withholding the child for years, ignoring court orders, and obtaining a South Korean passport for the child without Joshua's knowledge or consent—facts supporting a finding that the parents could not cooperate. On physical custody, however, the Court of Appeals found a problem. Although the trial court called its award "primary physical custody," the practical effect—weekly supervised parenting time only—amounted to "sole physical custody." Under Nevada precedent (Roe v. Roe), a sole physical custody award requires specific written findings, including either that the other parent is unfit to live with or that giving that parent significant parenting time is not in the child's best interest, plus consideration of the least restrictive parenting arrangement. The trial court did not make these required findings. The Court of Appeals therefore reversed the physical custody and parenting time decisions and sent the case back for the trial court either to give Nae-Ryung more parenting time so the arrangement is genuinely primary (not sole) custody, or to make the additional findings Nevada law requires to support a sole physical custody award.