MCMONIGLE VS. MCMONIGLE (CHILD CUSTODY)

Key holdings

Practitioner summary

Modification of primary custody is governed by Murphy v. Murphy, 84 Nev. 710, 711, 447 P.2d 664, 665 (1968), which permits a change only where (1) the circumstances of the parents have been materially altered and (2) the child's welfare would be substantially enhanced by the change. The movant must show circumstances have substantially changed since the most recent custodial order; events before that proceeding are inadmissible to establish a change of circumstances (citing Stevens v. Stevens, 810 P.2d 1334, 1336 (Or. Ct. App. 1991)). The district court expressly considered pre-decree matters - Susan's relocation to Kansas City (which predated and was acknowledged in the divorce judgment) and 1990 Santa Barbara reports - contrary to Murphy. While a court sitting without a jury is presumed to disregard inadmissible evidence when other substantial evidence supports its findings (Dep't of Highways v. Campbell, 80 Nev. 23, 33, 388 P.2d 733, 738 (1964)), that presumption did not apply because the district court expressly relied on the improper evidence rather than disregarding it, and the error was not harmless under NRCP 61. The record showed the court would have permitted shared primary custody but for Susan's out-of-state residence. Reversed and remanded with instructions to restore primary custody to Susan.

In plain language

Susan (later Grandgeorge) and Robert McMonigle divorced in March 1992, with the district court giving Susan primary custody of their daughter, Mari. About a year later Robert moved to modify custody, obtained temporary custody, and after a seven-day hearing was awarded permanent custody. Susan appealed. The Nevada Supreme Court reversed. Under Murphy v. Murphy, a court may change primary custody only if the parents' circumstances have been materially altered SINCE the last custody order and the child's welfare would be substantially enhanced by the change; events predating the last order are inadmissible to establish changed circumstances. Here, the district court expressly relied in large part on evidence about matters that predated the 1992 divorce judgment - most importantly Susan's move to Kansas City (which occurred before the divorce and was even noted in the divorce judgment) and reports generated in Santa Barbara in 1990. Although a court sitting without a jury is normally presumed to disregard improper evidence, this court did the opposite and expressly based its decision on it. Indeed, the record showed the court would have allowed Susan to keep shared primary custody but for the fact that she lived out of state. Because the improper reliance affected Susan's substantial rights, the court reversed and remanded with instructions to restore primary custody to Susan.