LUCIANO VS. LUCIANO (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court addressed a jurisdictional bar and then the merits under an abuse-of-discretion standard. On jurisdiction, the court held Amy's September 17, 2021, notice of appeal was untimely as to the June 2020 divorce decree, the notice of entry of which was served June 8, 2020. See NRAP 4(a)(1) (30-day filing requirement). Her NRCP 60(b) motions were not filed within the period required to give them tolling effect. See NRAP 4(a)(4); AA Primo Builders, LLC v. Washington, 126 Nev. 578, 585, 245 P.3d 1190, 1195 (2010). An untimely notice fails to vest appellate jurisdiction, Healy v. Volkswagenwerk Aktiengesellschaft, 103 Nev. 329, 331, 741 P.2d 432, 433 (1987), and where an appeal is not timely taken from a final judgment but instead from an order denying NRCP 60(b) relief, review is limited to that order alone, Holiday Inn Downtown v. Barnett, 103 Nev. 60, 63, 732 P.2d 1376, 1378-79 (1987). The court accordingly dismissed the appeal insofar as it challenged the decree. For the two orders denying NRCP 60(b) relief, the court applied abuse-of-discretion review. Divorce and custody proceedings are reviewed for abuse of discretion, Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004); Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996), as are decisions granting or denying NRCP 60(b) relief, Cook v. Cook, 112 Nev. 179, 181-82, 912 P.2d 264, 265 (1996). The court found Amy failed to offer cogent argument or relevant authority. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 180 P.3d 1280, 1288 n.38 (2006). Although a district court must make specific best-interest findings, including whether domestic violence has occurred, when making a custody determination, see NRS 125C.0035; Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1148 (2015), the court reasoned that Amy's best-interest and domestic-violence arguments challenged the underlying custody determination in the decree - which was not timely appealed - and that she offered no authority requiring such findings when a court decides an NRCP 60(b) motion. The court identified Amy's asserted grounds as NRCP 60(b)(4) (void judgment), NRCP 60(b)(3) (fraud, misrepresentation, or misconduct), and NRCP 60(b)(2) (newly discovered evidence). It found the record showed she was served with the summons and complaint and properly served with the relevant orders, defeating the void-judgment and service-based fraud arguments, and that she offered no argument showing an abuse of discretion, see Cook, 112 Nev. at 181-82, 912 P.2d at 265, nor any argument on how the purported new evidence could not have been discovered in time to move for a new trial, see NRCP 60(b)(2). As to the second NRCP 60(b) motion, the court clarified that the district court concluded the arguments (including the domestic-violence allegation) had been considered in deciding the first NRCP 60(b) motion, not in the custody determination. Regardless, the district court also denied the second motion because Amy failed to serve it on Frank. See NRCP 5(a)(1)(D). Because Amy did not challenge that finding, the court affirmed on that independent basis, invoking Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (issues not raised in an opening brief are waived), Edwards, and AED, Inc. v. KDC Invs., LLC, 307 P.3d 176, 181 (Idaho 2013) (appellant must successfully challenge all grounds when the district court sets forth multiple grounds). On the sanction argument, the court held the record did not support the assertion that custody was awarded as punishment. The district court took evidence at the trial date despite Amy's non-appearance and did not enter custody on a default basis without a hearing, distinguishing Blanco v. Blanco, 129 Nev. 723, 730-31, 311 P.3d 1170, 1175 (2013) (a district court cannot enter a child custody order on a default basis without a prove-up or evidentiary hearing and best-interest findings).

In plain language

This case arose from a divorce and child custody dispute. Frank Luciano started the divorce and custody proceedings in October 2019. Amy filed an answer, and the case moved forward. In December 2019, the court held a case management conference and set a "calendar call" (a scheduling check-in) for May 5, 2020, and a trial for May 19, 2020. Both parties were told these dates in open court. Amy did not appear at the calendar call. The court kept the case on the calendar for the trial date to give her another chance to present evidence. Amy also did not appear at the May 19 trial. The court then took evidence from Frank and, in June 2020, entered a final divorce decree awarding Frank sole legal and sole physical custody of the couple's child, with Amy's parenting time left to Frank's discretion. The court noted that if Amy brought the matter back, it would consider evidence to re-establish contact between her and the child. In July 2020, Amy filed a motion to set aside the decree under NRCP 60(b) (a rule allowing a court to undo a judgment in certain circumstances). She claimed she had not been served with court papers, that the decree resulted from fraud or misconduct, that Frank had committed domestic violence against her, and other allegations. The court held a hearing and, in December 2020, denied the motion, finding she had received written notice of the hearing and trial dates in open court and had not shown a basis to set aside the decree. The court again said it would consider modifying custody and support if she filed an appropriate motion. In May 2021, Amy filed a second NRCP 60(b) motion to set aside several prior orders, repeating similar arguments. The court denied it, finding she had not provided proof that she served the motion on Frank and that it had already considered the same arguments in her first motion. She then appealed. The appellate court first found it lacked jurisdiction over the part of the appeal challenging the divorce decree itself. A notice of appeal generally must be filed within 30 days after the notice of entry of the order being appealed. The notice of entry of the divorce decree was served on June 8, 2020, but Amy did not file her notice of appeal until September 17, 2021 - far too late. Her NRCP 60(b) motions were not filed in time to pause ("toll") the appeal deadline. Because the appeal was late as to the decree, the court dismissed that portion. As to the two orders denying NRCP 60(b) relief, the court affirmed. It explained that district courts have broad discretion over custody decisions and over motions to set aside judgments, and that these decisions are reviewed only for "abuse of discretion." The court found that Amy did not offer cogent argument or relevant authority supporting her claims. It noted that while a court must make specific best-interest findings, including on domestic violence, when making a custody determination, Amy's arguments really challenged the underlying custody decision in the decree - which was not timely appealed - and she cited no authority requiring such findings when deciding an NRCP 60(b) motion. The record showed she was served with the summons, complaint, and the relevant orders, undercutting her fraud and lack-of-service arguments. On the second motion, the court explained that it was denied in part because Amy failed to serve it on Frank, and because Amy did not challenge that specific finding on appeal, the court affirmed on that basis. Finally, the court rejected the claim that custody was awarded as punishment, noting the record showed the court took evidence at trial before making its custody decision rather than entering a default without a hearing.