MAURICE VS. MAURICE (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the child custody decision for an abuse of discretion under Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007), and reviewed the failure to conduct an evidentiary hearing for an abuse of discretion, citing Nev. Power Co. v. Fluor Ill., 108 Nev. 638, 646, 837 P.2d 1354, 1360 (1992). The court noted that although discretionary determinations receive deferential review, "deference is not owed to legal error," citing Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142-43 (2015). The court set out the governing modification framework: to modify primary physical custody, the moving party must demonstrate a substantial change in circumstances affecting the welfare of the children and that modification is in the children's best interests, citing Romano v. Romano, 138 Nev., Adv. Op. 1 (2022). Per Ellis, 123 Nev. at 151, 161 P.3d at 242-43, "[T]he party seeking a modification of custody bears the burden of satisfying both prongs." When assessing best interests, the district court must make specific findings pursuant to NRS 125C.0035(4), citing Davis, 131 Nev. at 451, 352 P.3d at 1143. On the evidentiary-hearing question, the court applied Rooney v. Rooney, 109 Nev. 540, 542, 853 P.2d 123, 124 (1993). An evidentiary hearing is required where the moving party demonstrates "adequate cause," which "arises where the moving party presents a prima facie case for modification." Id. at 543, 853 P.2d at 125. A prima facie case requires a showing that "(1) the facts alleged in the affidavits are relevant to the grounds for modification; and (2) the evidence is not merely cumulative or impeaching." Id. Applying that framework, the court identified two grounds for finding an abuse of discretion. First, a change in a parent's work schedule can constitute a change in circumstances if it affects the welfare of the children, citing Silva v. Silva, 136 P.3d 371, 377 (Idaho Ct. App. 2006). The court noted its view was consistent with prior unpublished dispositions — Godifay v. Asgedom, No. 64289, 2015 WL 9597499 (Nev. Dec. 30, 2015), and Giddens v. Giddens, No. 72533, 2018 WL 2130845 (Nev. Ct. App. Apr. 30, 2018) — and observed that NRAP 36(c)(3) does not preclude the court from citing the supreme court's orders and its own orders. The district court thus abused its discretion in denying the motion based primarily on the finding that a work-schedule change does not equate to a substantial change in circumstances; at a minimum it should have set the matter for an evidentiary hearing. Second, although the district court concluded that Rooney applied, it issued no specific findings as to how Justin failed to demonstrate adequate cause, and nothing in the record indicated his alleged facts would be "merely cumulative or impeaching." Id. The court explained that the district court should have considered all relevant facts — including the fourteen-year-old child's stated preference to spend more time with Justin (which could bear on both the substantial-change prong and the best-interest analysis), the pandemic's impact on the family's schedules and remote schooling, and the children's relationships with their stepsiblings — before deciding whether adequate cause existed and whether modification was appropriate. Because it reversed and remanded for an evidentiary hearing and requisite findings, the court necessarily vacated the attorney-fee award, noting that any fee award made pursuant to EDCR 7.60 requires the district court to articulate the factual basis for such an award. The court also noted under Arnold v. Kip, 123 Nev. 410, 417, 168 P.3d 1050, 1054 (2007) (disapproved of on other grounds by AA Primo Builders LLC v. Washington, 126 Nev. 578, 245 P.3d 1190 (2010)), that because the district court considered the merits of the reconsideration motion, the arguments raised in that motion were reviewable on appeal.

In plain language

Justin and Sarah Maurice divorced in 2015 under an agreed ("stipulated") divorce decree. That decree gave them joint legal custody of their two children, but gave Sarah primary physical custody, with Justin having the children on alternating weekends. In 2020, Justin asked the family court to change the arrangement to joint physical custody. He gave several reasons: his job and work schedule had changed, Sarah's work schedule had changed, he was now available to care for the children himself while Sarah worked (rather than having third parties watch them), more than five years had passed since the divorce, the children had bonded with their stepsiblings, and, he said, the change was in the children's best interests. He also pointed out that during the COVID-19 pandemic he had been the parent primarily helping the children with school, that the parties had actually been following a different schedule than the decree required, and that the children had expressed a preference to spend more time with him. The family court turned down Justin's request without holding a hearing to take evidence. Its main reason was that a change in work schedule, by itself, is not a "substantial change in circumstances" — the legal threshold a parent must cross to change primary physical custody. Justin asked the court to reconsider; the court again refused and ordered Justin to pay $1,500 of Sarah's attorney fees. The Court of Appeals disagreed with the family court on two points. First, it explained that a change in a parent's work schedule can count as a change in circumstances if it affects the children's welfare, so the family court was wrong to reject the motion based mainly on the idea that a work-schedule change never qualifies. Second, the court said the family court gave no specific explanation for why Justin had not shown "adequate cause" for an evidentiary hearing — a hearing where witnesses and evidence are presented — and nothing in the record suggested his claims were just repetitive or only meant to discredit Sarah. Because Justin had presented enough to justify a hearing, the family court should have held one before deciding whether to change custody. The appeals court reversed the family court's decision and sent the case back for further proceedings. Because it undid the underlying ruling, it also canceled ("vacated") the $1,500 attorney-fee award.