MILLER VS. MILLER

Statutes cited

Key holdings

Practitioner summary

Standard of review: Statutory construction is reviewed de novo. City of Reno v. Reno Gazette-Journal, 119 Nev. 55, 58, 63 P.3d 1147, 1148 (2003). A district court's child support determination is reviewed for abuse of discretion, and will be upheld if supported by substantial evidence. Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1227 (2004). Conclusory findings that may "mask legal error" are not entitled to deference. Davis v. Ewalefo, 131 Nev., Adv. Op. 45, 352 P.3d 1139, 1142 (2015). Doctrinal framework: NRS 125B.020(1) imposes a parental duty of support; NRS 125B.070 sets the "obligation for support" as a flat-rate percentage of each parent's gross monthly income tied to the number of children (18%/25%/29%/31%/+2% per additional). Per Wright v. Osburn, 114 Nev. 1367, 1368-69, 970 P.2d 1071, 1072 (1998), each parent's obligation is calculated first; the custody arrangement then governs how much one parent owes the other. In primary physical custody cases, the noncustodial parent pays the appropriate percentage. Bluestein v. Bluestein, 131 Nev. 106, 109 n.1, 345 P.3d 1044, 1046 n.1 (2015). In joint physical custody cases, the higher-income parent pays the lower-income parent the difference between their statutorily calculated amounts (the Wright offset). The presumptive maximum cap under NRS 125B.070(2) is applied after the Wright offset. Wesley v. Foster, 119 Nev. 110, 113, 65 P.3d 251, 253 (2003). The district court may deviate under the twelve factors in NRS 125B.080(9), but if it deviates it "shall" set forth findings of fact as to the basis for the deviation and provide the amount that would have been established under the formula. NRS 125B.080(6)(a)-(b); Anastassatos v. Anastassatos, 112 Nev. 317, 321, 913 P.2d 652, 654 (1996) (failure to set forth findings of fact as to the basis for the deviation "constitutes reversible error"). Issue of first impression: How NRS 125B.070 applies when the parents share joint physical custody of one child while one parent has primary physical custody of another. The Court rejected the Family Law Section's proposal (calculating each parent's percentage based on that parent's individual custody arrangement, e.g., 18% for Leslie and 25% for Brett) as contrary to the plain language of NRS 125B.070, which keys the percentage to the number of children, not the custody arrangement. The Court likewise rejected calculation methods that began at 18% for each parent. Rule announced: For split-custody arrangements of this kind, courts must (1) calculate each parent's support obligation under NRS 125B.070 based on the total number of children; (2) divide each parent's obligation by the number of children to determine the per-child amount; (3) for any jointly shared child, apply the Wright offset; (4) for any child in one parent's primary physical custody, the other parent owes the full per-child amount without offset; (5) sum the components; (6) apply the presumptive maximum cap of NRS 125B.070(2); and (7) if deviating under NRS 125B.080, make sufficient factual findings, identify the deviation factors considered, and state the pre-deviation amount. Application: With Leslie's gross monthly income of $3,986.66 and Brett's of $4,304.97, 25% yields $996.67 and $1,076.24, respectively. Per-child amounts: $498.34 (Leslie) and $538.12 (Brett). Offset for the jointly shared child: Brett owes $39.78. For the child in Leslie's primary physical custody, Brett owes the full $538.12. Total: $577.90, which falls within the NRS 125B.070(2) presumptive maximum. Disposition rationale: The district court erred by using 18% (one-child rate) when the Millers have two children; failed to state the pre-deviation amount required by NRS 125B.080(6)(b); and failed to identify the deviation factors that produced $345. Reversed and remanded for application of the formula set forth in the opinion. The Court also took notice in footnote of 2017 Nev. Stat., ch. 371 (A.B. 278), which created the Committee to Review Child Support Guidelines and repealed the existing formula effective upon the Administrator's adopted regulations; the opinion's analysis is based on the statutes in effect at the commencement of litigation in 2015.

In plain language

Leslie and Brett Miller divorced in 2015. They have two minor children. Through mediation they agreed on most issues, including custody: they share joint physical custody of one child, but Leslie has primary physical custody of the other child, who lives with her and stays with Brett every other weekend. They could not agree on child support. The trial judge ordered Brett to pay Leslie $345 per month. When Leslie asked the judge to explain how he reached that number, the judge said he had "run the numbers" using statutory percentages (18% for one child and 25% for two children) along with deviation factors permitted by Nevada law, but did not show the calculations. Leslie appealed. The Nevada Supreme Court took the case to answer a question it had never directly answered before: how do you calculate child support when parents share joint physical custody of one child but one parent has primary physical custody of another child? Several different formulas had been proposed by the parties and by the State Bar of Nevada's Family Law Section, producing wildly different numbers from $345 to $832.19 per month. The Court walked through Nevada's child support statutes. NRS 125B.070 sets baseline percentages of a parent's gross monthly income that the parent owes for child support, based on the number of children (18% for one child, 25% for two, etc.). The Court emphasized that this percentage depends on how many children the parents have, not on the custody arrangement. After that obligation is calculated, the custody arrangement determines who pays what to whom. The Court announced this step-by-step formula for the Millers' "split custody" situation: 1. Calculate each parent's support obligation under NRS 125B.070 based on the total number of children (here, 25% of each parent's gross monthly income because there are two children). For Leslie, that was $996.67; for Brett, $1,076.24. 2. Divide each parent's obligation by the number of children to get a per-child amount. Leslie: $498.34 per child; Brett: $538.12 per child. 3. For the child in joint physical custody, offset the per-child amounts (under the Court's prior decision in Wright v. Osburn): the higher earner pays the lower earner the difference. Brett owed Leslie $39.78 for the joint-custody child. 4. For the child in Leslie's primary physical custody, Brett owes the full per-child amount ($538.12) with no offset. 5. Add those two figures together: Brett owes $577.90 per month. 6. Make sure the result does not exceed the presumptive maximum amount per child in NRS 125B.070(2). 7. The district court may then deviate from that amount under NRS 125B.080, but if it does, it must make written findings of fact explaining the deviation and stating what the support amount would have been under the formula. Because the trial court used the wrong starting percentage (18% for one child rather than 25% for two), failed to state the pre-deviation amount, and failed to explain the deviation factors that produced $345, the Supreme Court reversed and sent the case back with instructions to follow the formula above. The Court also flagged an "anomaly": under its formula, Brett owes $577.90 for two children, but if there were only one child in Leslie's primary physical custody, he would owe $774.80. The Court noted that this is a matter for the legislatively created Committee to Review Child Support Guidelines to consider, since the Legislature in 2017 (through A.B. 278) directed that new guidelines be developed.