MEAD VS. MEAD (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's child custody and support determinations for abuse of discretion, citing Rivero v. Rivero, 125 Nev. 410, 428, 438, 216 P.3d 213, 226, 232 (2009) (overruled on other grounds by Romano v. Romano, 138 Nev. 1, 6, 501 P.3d 980, 984 (2022), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op. 43, 535 P.3d 1167, 1171 (2023)). The court noted that it "will not set aside the district court's factual findings if they are supported by substantial evidence," defined as "evidence that a reasonable person may accept as adequate to sustain a judgment," citing Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). The sole consideration in a custody determination is the best interest of the child under NRS 125C.0035(1). The procedural context arose from Mead I, Docket No. 84843-COA, No. 84878-COA, 2023 WL 8828889, *2 (Nev. Ct. App. Dec. 20, 2023), which had reversed the district court's earlier order because the court failed to find a substantial change in circumstances warranting modification of the joint physical custody arrangement and modified custody without analyzing the best-interest factors under NRS 125C.0035(4). On remand, the district court addressed only the youngest child's custody and support, the two eldest children having reached the age of majority. On the second appeal, Kathryn argued that the district court abused its discretion by failing to consider her house-fire arguments alongside its other best-interest findings, that she had established a prima facie case for primary physical custody, that the court improperly used 2013 imputed income rather than updated 2022 and 2023 financial forms, and that the court made improper evidentiary determinations and ignored her evidence. The court declined to evaluate these claims on the merits because Kathryn failed to request and file transcripts of the April 3, 2024 hearing on her motion to modify and the May 23, 2024 evidentiary hearing, despite the supreme court's June 28, 2024 notice instructing her to either file a completed transcript request form under NRAP 9(b)(1)(c) or file a notice indicating no transcripts were requested under NRAP 9(b), see also NRAP 3E(c)(2). (The court cited the pre-August 15, 2024 versions of the NRAP.) Citing the appellant's responsibility to make an adequate appellate record under Carson Ready Mix, Inc. v. First Nat'l Bank of Nev., 97 Nev. 474, 476, 635 P.2d 276, 277 (1981), the court held it could not assess the district court's reasoning on the house-fire arguments, the reliance on 2013 imputed income, or the challenged evidentiary determinations. Applying the rule of Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007) - that when an appellant fails to include necessary documentation in the record, the court "necessarily presume[s] that the missing portion supports the district court's decision" - the court examined the district court's written order. That order reflected consideration of the NRS 125C.0035(4) best-interest factors and findings supporting joint physical custody, and included a finding on support that Kathryn failed to show "sufficient proof to support a finding of changes in financial circumstances" to alter her imputed income or rebut the presumption that she is willfully underemployed. Presuming the missing transcripts supported those determinations, the court concluded substantial evidence supported the findings and discerned no abuse of discretion, and affirmed.

In plain language

Kathryn and Brian Mead divorced in 2007 and shared joint physical and legal custody of their three children. In 2022, the district court gave Brian primary physical custody of the youngest child (the only one still a minor) and awarded him child support. Kathryn appealed, and in an earlier decision (called Mead I), the Court of Appeals reversed that order. The appeals court found that the district court had not made the required finding that circumstances had substantially changed, and had not analyzed the "best interest of the child" factors set out in Nevada law before changing custody. The case was sent back to the district court. On remand, the district court set a hearing on custody and support for the youngest child and, in the meantime, ordered the parents to share the child on a week-on, week-off basis. Before that hearing, Kathryn asked the court to give her primary physical custody. She said that in February 2024 Brian's house had burned down, that the child had been living with her full time, and that Brian could not properly care for the child in a home that (she alleged) had no working kitchen, toilets, or electricity. The district court found there was "adequate cause" to hold an evidentiary hearing on the issue, but then orally denied Kathryn's motion before the scheduled hearing. At the evidentiary hearing, the district court analyzed the best-interest factors and concluded that joint physical and legal custody was best for the child. On money matters, the court found Brian earned $6,000 a month and imputed (attributed) income of $3,000 a month to Kathryn. Based on that, Brian would owe Kathryn $480 a month in child support until the child reached adulthood and finished high school. But because Kathryn owed Brian $5,242 in past-due amounts (arrears), the court had Brian pay a single lump sum of $518 instead. Kathryn appealed again. She argued the court failed to weigh her arguments about the house fire, that she had shown a strong case for primary custody, and that the court made mistakes in handling the evidence and in using older (2013) income figures rather than more recent financial documents. The Court of Appeals did not reach the merits of most of these arguments. The reason was practical: Kathryn did not order and file the written transcripts of the two key hearings (the April 3, 2024 hearing on her motion and the May 23, 2024 evidentiary hearing), even though the supreme court had notified and instructed her to do so. Without those transcripts, the appeals court said it could not review what actually happened or why the district court ruled as it did. Under an established rule, when an appealing party leaves necessary records out, the court assumes the missing material supports the lower court's decision. Because the district court's written order showed it had considered the best-interest factors and made findings on the support issue, the appeals court concluded there was enough evidence to support the rulings and affirmed them.