LUONG VS DIST. CT. (VAHEY)

Statutes cited

Key holdings

Practitioner summary

The court addressed a petition for extraordinary writ relief under the familiar framework: mandamus is available to compel an act the law requires as a duty or to control an arbitrary or capricious exercise of discretion (NRS 34.160; Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008)), and prohibition lies where a district court acts without or in excess of jurisdiction (NRS 34.320; Club Vista Fin. Servs., LLC v. Eighth Judicial Dist. Court, 128 Nev. 224, 228, 276 P.3d 246, 249 (2012)). Writ relief is discretionary and unavailable where the petitioner has a plain, speedy, and adequate remedy at law (NRS 34.170; NRS 34.330; D.R. Horton, Inc. v. Eighth Judicial Dist. Court, 123 Nev. 468, 474-75, 168 P.3d 731, 736-37 (2007)), and the petitioner bears the burden of demonstrating entitlement to relief (Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004)). As to the Turning Points immersion therapy orders, the court held the issue moot because the parties' limited participation in the program had concluded and no effective relief could be granted (University Sys. v. Nevadans for Sound Gov't, 120 Nev. 712, 720, 100 P.3d 179, 186 (2004); Langston v. State, Dep't of Motor Vehicles, 110 Nev. 342, 344, 871 P.2d 362, 363 (1994)). As to the no-contact orders and the request to enforce joint physical custody, the court declined discretionary intervention. While acknowledging the district court's broad discretion in custody determinations and the importance of finality and stability for children (Ellis v. Carucci, 123 Nev. 145, 149-50, 161 P.3d 239, 241-42 (2007)), the court reiterated its concern that custody had been temporarily modified for a lengthy period, effectively depriving one parent of custodial time without an evidentiary hearing to establish final custody (id.; Rooney v. Rooney, 109 Nev. 540, 542-43, 853 P.2d 123, 124-25 (1993)). Because the district court had now set an evidentiary hearing, Minh had an adequate remedy by appeal from a final judgment (Walker v. Second Judicial Dist. Court, 136 Nev. 678, 681, 476 P.3d 1194, 1197 (2020)). In a footnote, the court reminded the district court that it may modify a joint custody order upon motion or on its own motion if in the child's best interest (NRS 125C.0045(2); SCR 251), and must hold an evidentiary hearing where the child's best interest requires modification (Rooney, 109 Nev. at 542-43, 853 P.2d at 124-25). On reassignment, the court applied the presumption that judges are unbiased (Millen v. Eighth Judicial Dist. Court, 122 Nev. 1245, 1254, 148 P.3d 694, 701 (2006)), and the standard of "whether a reasonable person, knowing all the facts, would harbor reasonable doubts about [a judge's] impartiality" (In re Varain, 114 Nev. 1271, 1278, 969 P.2d 305, 310 (1998)). Judicial remarks in a proceeding are generally not indicative of improper bias "unless they show that the judge has closed his or her mind to the presentation of all the evidence" (Cameron v. State, 114 Nev. 1281, 1283, 968 P.2d 1169, 1171 (1998)). For requests to reassign for reasons other than personal bias, the court applied the three Montrose factors: whether the original judge would reasonably be expected to have substantial difficulty putting out of mind previously-expressed views, whether reassignment is advisable to preserve the appearance of justice, and whether reassignment would entail waste and duplication out of proportion to the gain in preserving the appearance of fairness (California v. Montrose Chem. Corp., 104 F.3d 1507, 1521 (9th Cir. 1997); Valley Health Sys., LLC v. Eighth Judicial Dist. Court, No. 84330, 2022 WL 1788220 (Nev. June 1, 2022)). Applying those factors, the court noted the district judge's statements that she did not need expert or therapist testimony, that the matter would come down to NRS 125C.0035(4)(c), that there was no way reunification could happen, and that one party would receive sole legal and sole physical custody. The court concluded these statements suggested the district court "has closed its mind to the neutral evaluation of the evidence and has pre-determined the outcome in this case," and that, given the conclusory nature of the comments, the district court could not reasonably be expected to easily set aside its expressed opinions. Finding a reasonable doubt as to impartiality, the court held reassignment warranted to ensure the appearance of fairness. It directed issuance of a writ of mandamus instructing the district court to request that the Chief Judge of the Eighth Judicial District Court reassign the matter, and denied the petition in all other respects.

In plain language

This case grows out of a contentious custody dispute between Minh Luong and her ex-husband James Vahey (called "Jim" in the opinion), who divorced in 2021. They were originally given joint legal and joint physical custody of their three children, sharing a week-on/week-off schedule. Since 2019, the parents have repeatedly fought over school placement, therapy, and other child-related matters. After a hearing in November 2021, the district court found that Minh had turned the children against Jim - a situation the court described as parental alienation. In March 2022, the court ordered Jim and the children into an intensive reunification therapy program called Turning Points for Families, based in New York. The court also temporarily gave Jim sole legal and sole physical custody for the New York therapy and for a 90-day period afterward, while planning to revisit the arrangement once therapists recommended it. Minh asked the court to reconsider and to pause these orders. The court refused. She then took her fight to the Court of Appeals by asking for a writ - an extraordinary court order directing a lower court to act (mandamus) or to stop acting beyond its authority (prohibition). Her first such petition was denied because the New York program had not gone forward as planned and a status check was coming up. She filed the current petition after that. The Court of Appeals made several decisions. On the New York therapy orders, it said the issue was moot - meaning there was no longer any effective relief the court could give, because the parties' limited participation in the program had already concluded. On Minh's request to undo the no-contact orders and restore joint custody, the court declined to step in, noting that the district court had now scheduled a full evidentiary hearing to set final custody, and that Minh could appeal after a final decision if she disagreed with it. The court did, however, express concern that custody had been temporarily changed for a long period, effectively cutting one parent off from the children without a full hearing. The one place where Minh prevailed was her request to move the case to a different judge. Reviewing comments the district judge made about the upcoming hearing - including that the judge did not need expert or therapist testimony and had described how the case was going to come out - the Court of Appeals concluded that the judge appeared to have made up her mind before hearing the evidence. To preserve the appearance of fairness, the court ordered that the case be reassigned to a different department. It denied the petition in all other respects.