LUONG VS. VAHEY (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

**NRCP 60(a).** The court reviewed the denial of clerical-correction relief for abuse of discretion. Mack v. Estate of Mack, 125 Nev. 80, 93, 206 P.3d 98, 107 (2009); Frontier Ins. Serv., Inc. v. State, 109 Nev. 231, 239, 849 P.2d 328, 333 (1993). NRCP 60(a) reaches a "mistake or omission by a clerk, counsel, or judge, or printer which is not the result of the exercise of a judicial function" and that "cannot reasonably be attributed to the exercise of judicial consideration or discretion." Channel 13 of Las Vegas, Inc. v. Ettlinger, 94 Nev. 578, 580, 583 P.2d 1085, 1086 (1978). The court rejected Luong's argument premised on divergence between the post-hearing minutes ("based upon the contribution of percentage") and the decree, noting first that merits-addressing minute orders are "impermanent" and ineffective under Div. of Child & Family Servs. v. Eighth Judicial Dist. Court, 120 Nev. 445, 451, 454, 92 P.3d 1239, 1243, 1245 (2004), and second that the decree's "pursuant to [their] capital contributions" language captured the minutes' import. Because the challenged percentage finding rested on the district court's evaluation of the evidence at the 2020 hearing - an act of judicial discretion - it fell outside NRCP 60(a). The court also invoked Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007), presuming the un-transcribed 2020 hearing supported the ruling. **Recharacterization of the NRCP 60(b)(1) motion.** Applying the abuse-of-discretion standard of Ford v. Branch Banking & Tr. Co., 131 Nev. 526, 528, 353 P.3d 1200, 1202 (2015), the court construed the motion by substance rather than caption. Because Luong's motion relied on a post-hearing forensic analysis to argue the accounts should have been allocated differently, it sounded in "newly discovered evidence" under NRCP 60(b)(2), not "mistake, inadvertence, surprise, or excusable neglect" under NRCP 60(b)(1). See State Farm Mut. Auto. Ins. Co. v. Wharton, 88 Nev. 183, 186, 495 P.2d 359, 361 (1972); State v. Shade, 110 Nev. 57, 61 n.1, 867 P.2d 393, 395 n.1 (1994); cf. Stoecklein v. Johnson Elec., Inc., 109 Nev. 268, 271, 849 P.2d 305, 307 (1993). **Timeliness.** Under NRCP 60(c)(1), a motion under NRCP 60(b)(1)-(3) must be filed "within a reasonable time" and no more than six months after the relevant proceeding or the date of service of written notice of entry, whichever is later. The district court erred by measuring the outer limit from the date of entry of the decree; the six-month period runs from service of written notice of entry (or the relevant proceeding, whichever is later). Luong filed within six months of service of written notice of entry. Absent any district-court finding on the "reasonable time" requirement, and given Vahey's failure to address the timeliness argument, the court held the district court abused its discretion to the extent it denied relief as untimely. See Ford, 131 Nev. at 528, 353 P.3d at 1202; Bates v. Chronister, 100 Nev. 675, 682, 691 P.2d 865, 870 (1984); cf. NRAP 31(d)(2). **Merits under NRCP 60(b)(2).** The court held the Yochum v. Davis, 98 Nev. 484, 486, 653 P.2d 1215, 1216 (1982) (overruled on other grounds by Epstein v. Epstein, 113 Nev. 1401, 1405, 950 P.2d 771, 773 (1997)) factors apply only to NRCP 60(b)(1) motions and thus were not required here. Cf. Willard v. Berry-Hinckley Indus., 136 Nev. 467, 471, 469 P.3d 176, 180 (2020) (requiring explicit and detailed findings on the four Yochum factors for NRCP 60(b)(1)). For NRCP 60(b)(2), the inquiry is whether the evidence "with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)." The district court's findings - no excuse for the one-year delay and that the request was frivolous and vexatious - were consistent with a determination that the analysis could have been obtained with reasonable diligence before the NRCP 59(b) deadline. Because Luong never explained the delay below or on appeal, the court found no abuse of discretion, citing Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011); Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981); Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006); and affirming under Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987) (affirmance permissible where the correct result is reached for different reasons). **Passports.** The court identified two available legal frameworks. First, the Uniform Child Abduction Prevention Act (UCAPA), codified as NRS Chapter 125D, which permits abduction-prevention measures - including surrender of a child's passport - upon a credible risk of abduction. See NRS 125D.150; NRS 125D.190(8)(d)(2); NRS 125D.180; NRS 125D.190(2). Second, a best-interest analysis under NRS 125C.0045(a)(1), Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015), and the factors in NRS 125C.0035(4). Neither party invoked the UCAPA, and the district court found no evidence that either party was a flight risk, foreclosing an abduction-prevention order. See NRS 125D.190(2). But the court divided the passports based on an "adverse inference against both parties" without making a best-interest determination or best-interest findings. Because deference "is not owed to legal error or to findings so conclusory they may mask legal error" (Davis, 131 Nev. at 450, 352 P.3d at 1142) and the district court must apply the correct legal standard (Williams v. Waldman, 108 Nev. 466, 471, 836 P.2d 614, 617-18 (1992)), the court could not confirm the ruling was made for the correct legal reasons and remanded for further proceedings.

In plain language

While married, Luong and Vahey set up college savings accounts (called "529 accounts" after the federal tax provision that governs them) for each of their three children. When the couple divorced, they disagreed about how to split these accounts. After a 2020 hearing where both sides presented evidence, the trial judge concluded that Vahey had put in about 25 percent of the money and Luong (with help from her family) had put in about 75 percent, and divided the accounts accordingly - 25 percent to Vahey, 75 percent to Luong, with each parent managing their share on behalf of the children. About a year after that hearing, Luong hired a financial consultant who calculated slightly different numbers: that Luong and her family contributed 77.11 percent and Vahey 22.89 percent. Based on this new report, Luong asked the court to fix or undo the account-division part of the divorce decree. She used two rules: NRCP 60(a), which lets a court fix simple clerical mistakes, and NRCP 60(b)(1), which lets a court undo a decision because of "mistake, inadvertence, surprise, or excusable neglect." The trial court refused, finding there was no clerical error, that the request was filed too late, and that it was frivolous because it sought only a tiny adjustment to accounts the parents did not even own themselves but managed for their children. In the same set of filings, Vahey asked the court to order Luong to hand over the children's passports, saying he feared she might leave the country with the children. Luong objected. The trial court decided to split the passports - ordering Luong to surrender two of the three children's passports to Vahey's attorney and letting her keep one - to prevent either parent from taking the children abroad on their own. Luong appealed. The Court of Appeals agreed with the trial court that there was no clerical error to correct under NRCP 60(a), because the judge's percentage finding was a product of weighing the evidence - an exercise of judgment - not a slip of the pen. The appellate court also noted that Luong never provided a transcript of the 2020 hearing, so it presumed that the missing record supported the trial court's decision. The Court of Appeals then explained that although Luong labeled her request as an NRCP 60(b)(1) motion, its real substance was a request based on "newly discovered evidence," which is governed by a different rule, NRCP 60(b)(2). Courts look at what a motion actually asks for, not what it is called. On timing, the appellate court found the trial court had used the wrong starting date: the six-month deadline runs from when written notice of the decree's entry is served, not from when the decree is entered, and by that measure Luong's motion was filed in time. Even so, the appellate court upheld the denial on the merits, because Luong never explained why she waited about a year to obtain the financial analysis, and evidence that could have been found earlier with reasonable diligence does not qualify as "newly discovered evidence." Finally, on the passports, the appellate court reversed. It explained that a judge has two possible legal routes to decide a passport dispute like this: the Uniform Child Abduction Prevention Act (found in NRS Chapter 125D), which allows passport restrictions only when there is a credible risk of abduction, or a best-interest-of-the-child analysis. Here the trial court found no evidence that either parent was a flight risk (which ruled out the abduction route), but it split the passports based on an "adverse inference" against both parents without ever analyzing what was in the children's best interest. Because the court could not be sure the decision was made for the correct legal reasons, it sent the passport issue back for further proceedings.