LOPEZ VS. PENALOZA (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The panel (Bulla, Gibbons, Westbrook, JJ.) reviewed the district court's custody, child support, and alimony determinations for abuse of discretion. **Custody.** Applying Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007), the court reviewed the custody determination for abuse of discretion, noting that deference "is not owed to legal error or to findings that are so conclusory as to mask legal error" (Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015)). The best interest of the child is the sole consideration (NRS 125C.0035(1)), the court must consider all twelve factors in NRS 125C.0035(4), and the written decree must contain findings on those factors tied to the ultimate custody determination (Davis, 131 Nev. at 450-51, 352 P.3d at 1143). The court also noted the statutory preference for joint physical custody where certain conditions are met (NRS 125C.0025(1)). The panel held the decree facially insufficient: it contained no best interest findings, analyzed none of the NRS 125C.0035(4) factors, and failed to tie the custody determination to the children's best interest. The panel further held that the district court failed to make written findings on the alleged domestic violence, citing NRS 125C.0035(4)(k) and Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004). On remand, the court must make express written best interest findings under Davis and consider the domestic violence incident under Soldo-Alesio v. Ferguson, 141 Nev., Adv. Op. 9, 565 P.3d 842, 849 (Ct. App. 2025), determining whether domestic violence has been proven by a preponderance of the evidence. The existing custody arrangement was left in place pending remand (Davis, 131 Nev. at 455, 352 P.3d at 1146). **Child support - remand and income calculation.** Given the reversal of custody, the panel reversed and remanded the child support determination for reconsideration after custody is resolved. Lopez's argument that the court should have used the low-income schedule was not addressed because it was not raised below (Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981)), though the district court is not precluded from considering the low-income schedule in future recalculations. Because Penaloza's income bears on payments accrued since the decree, the panel reached the income calculation. Reviewing factual findings on income for abuse of discretion, disturbed only if clearly erroneous or unsupported by substantial evidence (Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009)), and applying NAC 425.120(1)(b), the panel affirmed the $5,000 gross monthly income finding. The finding was supported by Penaloza's testimony that the higher wage was temporary, corroborated by paycheck stubs and an employer letter stating he no longer earned a "prevailing wage." The panel declined to second-guess the credibility determination (Ellis, 123 Nev. at 152, 161 P.3d at 244). **Child support arrears.** Reviewing for abuse of discretion under Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996), the panel held that the district court erred in waiving arrears. Under NRS 125B.140(1)(a), court-ordered child support becomes "a judgment by operation of law on or after the date a payment is due" and "may not be retroactively modified or adjusted." Penaloza owed $5,388.48 in arrears at the time of the decree. The panel reversed the waiver, citing Day v. Day, 82 Nev. 317, 320-21, 417 P.2d 914, 916 (1966), that accrued support payments become vested rights that cannot be modified or voided. **Alimony.** A district court has broad discretion to award alimony (Kogod v. Cioffi-Kogod, 135 Nev. 64, 66, 439 P.3d 397, 400 (2019)); under NRS 125.150(1)(a) a court may award alimony "as appears just and equitable," but "shall" consider the factors in NRS 125.150(9). The panel held that the district court referenced only some factors and failed to consider all required factors - including the financial conditions of the parties, respective earning capacities, standard of living during the marriage, Lopez's career before the marriage, and her contribution as a homemaker. The panel reversed and remanded for consideration of all requisite factors, citing Forrest v. Forrest, 99 Nev. 602, 606, 668 P.2d 275, 278 (1983). The panel affirmed the calculation of Penaloza's gross monthly income and reversed and remanded as to all other issues. A footnote noted a limited remand granted during the appeal under Huneycutt v. Huneycutt, 94 Nev. 79, 575 P.2d 585 (1978), and Foster v. Dingwall, 126 Nev. 49, 228 P.3d 453 (2010), for modification of the timeshare schedule, which the panel did not address because neither party appealed that order.

In plain language

Claudia Lopez and Sergio Penaloza married in 2015 and had three children, two of whom are still minors. In 2023, Lopez filed for divorce, asking for sole legal and physical custody, alimony, child support, and back child support. She told the court there had been a history of domestic violence. Penaloza asked for joint legal custody but wanted Lopez to have primary physical custody, and he gave conflicting figures about how much money he earned. During the case, both parents repeatedly changed what they were asking for, and the court adjusted the temporary parenting-time schedule several times. Penaloza also asked to lower his child support, saying the couple's oldest child had turned 18, his income had dropped by more than 20 percent, and he could not afford his current payments. At an evidentiary hearing (a hearing where witnesses testify and evidence is presented), the judge asked about domestic violence. The court learned that Lopez had obtained a protective order against Penaloza back in 2005, that Penaloza had no domestic violence conviction, and that the couple had later lived together without any new protective orders. The judge said she would not treat this as a recent history of domestic violence and would not consider it in the custody decision. The court awarded joint legal and physical custody, lowered Penaloza's child support, and decided he owed no back support because he had "been paying for so long" and the couple was "technically still married." The court also declined to award Lopez any alimony. On appeal, the higher court found several problems with the divorce decree. First, when deciding custody, Nevada law requires the judge to go through twelve "best interest" factors and write down findings connecting those factors to the custody decision. The decree here contained no such findings and did not analyze any of the factors. The court also did not make written findings about the alleged domestic violence. For those reasons, the appeals court reversed the joint physical custody award and sent it back for the judge to do the required analysis. Because custody and child support are connected, the appeals court also reversed the child support amount and sent it back to be recalculated after custody is decided. However, the appeals court upheld one specific factual finding: the judge's determination that Penaloza's gross monthly income was $5,000. Penaloza testified his higher past wage was temporary, and he backed that up with pay stubs and a letter from his employer, so the appeals court would not second-guess that finding. The appeals court found the judge made a legal mistake by wiping out Penaloza's child support arrears (past-due support). Under Nevada law, once child support payments become due, they turn into judgments that a court cannot erase or reduce after the fact. At the time of the decree, Penaloza owed $5,388.48 in arrears, so the appeals court reversed the waiver. Finally, the appeals court reversed the denial of alimony. Although the judge mentioned some of the factors the law requires her to weigh, she did not consider all of them - such as the parties' financial conditions, their earning capacities, their standard of living during the marriage, Lopez's career before the marriage, and her contribution as a homemaker. The case was sent back for the judge to consider all of the required factors.