MARTINELLI VS. DEL REAL (FAMILY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed each assignment of error under the abuse-of-discretion standard. On the motion to reopen discovery, the court applied the standard that "[d]iscovery matters are within the district court's sound discretion, and we will not disturb a district court's ruling regarding discovery unless the court has clearly abused its discretion." Club Vista Fin. Servs. v. Eighth Jud. Dist. Ct., 128 Nev. 224, 228, 276 P.3d 246, 249 (2012). An abuse of discretion occurs where the decision "is arbitrary or capricious or if it exceeds the bounds of law or reason." Skender v. Brunsonbuilt Constr. & Dev. Co., 122 Nev. 1430, 1435, 148 P.3d 710, 714 (2006). The court held substantial evidence supported the district court's findings that Martinelli had ample time for discovery and had abused the process to harass Del Real, citing Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). On the motion in limine, the court applied the abuse-of-discretion standard from In re T.M.R., 137 Nev. 262, 265, 487 P.3d 783, 787 (2021). It held that the testimony concerning Martinelli's arrests, domestic violence, and substance abuse was relevant under NRS 48.015 and generally admissible under NRS 48.025, and was relevant to a nonparent visitation petition under NRS 125C.050(6) and Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004) ("The court must hear all information regarding domestic violence in order to determine the child's best interests."). Martinelli did not demonstrate that probative value was substantially outweighed by the danger of unfair prejudice under NRS 48.035(1). On the denial of the visitation petition, the court reviewed for abuse of discretion under Ramos v. Franklin, 139 Nev. 54, 60, 525 P.3d 1227, 1232 (2023), upholding factual findings supported by substantial evidence and not clearly erroneous, and presuming proper exercise of discretion in determining best interest under Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). The court reaffirmed the trial court's broad scheduling authority, citing Zupancic v. Sierra Vista Recreation, 97 Nev. 187, 192, 625 P.2d 1177, 1180 (1981), and Matter of J.B., 140 Nev., Adv. Op. 39, 550 P.3d 333, 339 (2024). Applying the statutory framework, the court explained that persons who have resided with a child and established a meaningful relationship may petition for reasonable visitation where the parents have unreasonably denied it, NRS 125C.050(2)-(3); that a parent's denial triggers a rebuttable presumption that visitation is not in the child's best interest, NRS 125C.050(4); and that the petitioner must rebut the presumption by clear and convincing evidence, with the court considering the factors in NRS 125C.050(6). The court found the district court applied the presumption correctly and analyzed the enumerated factors - specifically NRS 125C.050(6)(a), (b)(1), (c); NRS 125C.050(6)(b)(2), (b)(3), (g), (h); NRS 125C.050(6)(i); and NRS 125C.050(6)(f) (regarding the child's preference and maturity). The court declined to reweigh evidence or revisit credibility findings, citing Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009), and found no abuse of discretion in limiting the parties' time or in evidentiary rulings, citing M.C. Multi-Fam. Dev., L.L.C. v. Crestdale Assocs., Ltd., 124 Nev. 901, 913, 193 P.3d 536, 544 (2008). Martinelli's argument regarding the child's statements was not considered for lack of cogent argument, citing Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). On the vexatious-litigant determination and attorney fees, the court reviewed for abuse of discretion under Jordan v. State, Dep't of Motor Vehicles & Pub. Safety, 121 Nev. 44, 62, 110 P.3d 30, 44 (2005), abrogated on other grounds by Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 228 n.6, 181 P.3d 670, 672 n.6 (2008), and Chowdhry v. NLVH, Inc., 109 Nev. 478, 485, 851 P.2d 459, 464 (1993), noting that an abuse occurs when findings are not supported by substantial evidence, Miller v. Miller, 134 Nev. 120, 125, 412 P.3d 1081, 1085 (2018). The court cited NRS 18.010(2)(b), permitting an award of attorney fees to a "prevailing party" when "the court finds that the claim . . . of the opposing party was brought or maintained without reasonable ground or to harass the prevailing party." The court rejected Martinelli's due process argument because he filed a written opposition to the vexatious-litigant motion, distinguishing Jordan, 121 Nev. at 63, 110 P.3d at 44, which concerned a sua sponte order entered without notice or opportunity to respond. The court found the harassment findings supported by the record, citing Chowdhry, 109 Nev. at 486, 851 P.2d at 464, and found the fee award appropriately considered the Brunzell factors, citing Brunzell v. Golden Gate National Bank, 85 Nev. 345, 349-50, 455 P.2d 31, 33 (1969), Miller v. Wilfong, 121 Nev. 619, 623, 119 P.3d 727, 730 (2005), and Logan v. Abe, 131 Nev. 260, 266, 350 P.3d 1139, 1143 (2015). On the bias claim, the court applied Canarelli v. Eighth Jud. Dist. Ct., 138 Nev. 104, 107, 506 P.3d 334, 337 (2022), concluding Martinelli did not show the judge's decisions were based on knowledge acquired outside the proceedings or reflected "a deep-seated favoritism or antagonism that would make fair judgment impossible." The court also cited In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988), and Rivero v. Rivero, 125 Nev. 410, 439, 216 P.3d 213, 233 (2009), overruled on other grounds by Romano v. Romano, 138 Nev. 1, 6, 501 P.3d 980, 984 (2022), regarding the movant's burden. In a footnote, the court also addressed the denial of the motion to set aside the judgment and the motion for new trial, finding no abuse of discretion, citing Rodriguez v. Fiesta Palms, LLC, 134 Nev. 654, 656, 428 P.3d 255, 257 (2018), and Lioce v. Cohen, 124 Nev. 1, 20, 174 P.3d 970, 982 (2008).

In plain language

Michael Martinelli and Michelle Lucero Del Real were in a romantic relationship that began in 2013, shortly after Del Real's son was born. Martinelli is not the child's biological father. The relationship ended in 2022 after, according to the opinion, Martinelli committed an act of domestic violence against Del Real in the presence of the child. In 2022, Martinelli filed a petition asking the court to grant him "nonparent visitation" - that is, court-ordered time with a child by someone who is not the child's parent. He claimed he had lived with the child, had a meaningful relationship with the child, acted as a de facto father, and that Del Real had unreasonably refused to let him see the child. Del Real opposed the petition. The trial court scheduled an evidentiary hearing (a hearing where witnesses testify and evidence is presented) and set deadlines for discovery (the pretrial process of exchanging information). Before the hearing, Martinelli asked the court to stop Del Real from mentioning his arrests and domestic-violence incidents, and asked to reopen discovery to gather more information about the child's schooling and medical issues. Del Real, by then represented by free (pro bono) lawyers, opposed those requests, and separately asked the court to declare Martinelli a "vexatious litigant" - someone who misuses court proceedings to harass another person. The court denied Martinelli's two pretrial motions and held the evidentiary hearing, giving each side 90 minutes. Witnesses included two of the child's teachers, a family friend, and both Martinelli and Del Real. Del Real testified about an incident in which Martinelli slammed a door into her in front of the child (a video of this was shown to the court), about verbal abuse, and about Martinelli being arrested in Arizona for driving under the influence while the child was in the car. She also described the child's chronic medical condition (chronic pancreatitis) requiring frequent hospitalizations. The child's recorded interview indicated the child did not wish to visit Martinelli. The court ruled against Martinelli. Under Nevada law, when a parent has denied visitation, there is a legal presumption that giving visitation to a nonparent is not in the child's best interest, and the person seeking visitation must overcome that presumption with strong proof ("clear and convincing evidence"). The court found Martinelli did not meet that burden, citing the lack of positive emotional ties, his history of abusive behavior and addiction, the conflict in the relationship, and the child's stated preference not to continue a relationship with him. The court also found that Martinelli had filed the case to harass Del Real and had abused the discovery process, declared him a vexatious litigant, and ordered him to pay $5,000 in attorney fees to the Legal Aid Center of Southern Nevada. After Martinelli filed a motion to set aside the judgment and a motion for a new trial, the court denied both and ordered an additional $500 in attorney fees. On appeal, the Court of Appeals upheld every part of the trial court's decision. It found the trial court acted within its discretion on the discovery and evidence rulings, that substantial evidence supported the denial of visitation, that Martinelli had in fact been given a chance to oppose the vexatious-litigant request (he filed a written opposition), and that he had not shown the judge was biased.