MILLER VS. MILLER

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the contempt order for abuse of discretion. Lewis v. Lewis, 132 Nev. 453, 456, 373 P.3d 878, 880 (2016); see also Vaile v. Vaile, 133 Nev. 213, 217, 396 P.3d 791, 794-95 (2017) (contempt findings reviewable when included in an otherwise independently appealable order). Disobedience to a lawful court order constitutes contempt. NRS 22.010(3). Under Cunningham v. Eighth Jud. Dist. Ct., 102 Nev. 551, 559-60, 729 P.2d 1328, 1333-34 (1986), the underlying order "must be clear and unambiguous, and must spell out the details of compliance in clear, specific and unambiguous terms so that the person will readily know exactly what duties or obligations are imposed on [her]." Applying this framework, the court found the divorce decree was a clear order establishing that President's Day weekend 2023 was Paul's parenting time, that Melinda had notice and the ability to comply, and that she intentionally took the child during that period - a violation she acknowledged in her testimony. See NRS 22.010(3). The court rejected the argument that Paul's conduct precluded a contempt finding, observing that while communication could have avoided the incident, Paul's conduct did not negate that Melinda knowingly violated the custody order. Under the deferential standard, the court discerned no abuse of discretion. See Lewis, 132 Nev. at 456, 373 P.3d at 880. On the sanction and attorney fees, the court reviewed for abuse of discretion. Miller v. Wilfong, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005). The court rejected Melinda's EDCR 5.509(a) argument, explaining that the rule sets forth what is required of the party filing a motion seeking an order to show cause for contempt (a motion accompanied by an affidavit complying with NRS 22.030(2) that identifies, among other things, the need for a contempt ruling), not what a court must include in its contempt decision. Melinda cited no authority that the court must include such findings in its contempt order. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (court need not consider issues not cogently argued or supported by relevant authority). The court further noted that NRS 22.100 permits imposition of a fine and attorney fees upon a finding of contempt, and that Melinda's unsupported "technical contempt" argument provided no basis for relief, particularly given her admission that she violated the order. See Edwards, 122 Nev. at 330 n.38, 130 P.3d at 1288 n.38. On the custody-modification issue, the court applied the abuse-of-discretion standard for custody determinations. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). While a court may "[a]t any time modify" custody "as appears in [the child's] best interest" under NRS 125C.0045(1)(a)-(b), the court emphasized the due process notice requirement: a district court errs when it modifies custody "without prior specific notice" to the parties. Dagher v. Dagher, 103 Nev. 26, 28, 731 P.2d 1329, 1330 (1987); see also Micone v. Micone, 132 Nev. 156, 159, 368 P.3d 1195, 1197 (2016) (surprise unilateral award of primary physical custody violated due process); Matthews v. Second Jud. Dist. Ct., 91 Nev. 96, 97-98, 531 P.2d 852, 853 (1975) (court "manifestly acted without notice where notice was required"); NRS 125A.345(1) (requiring notice and opportunity to be heard for custody determinations). The court held that because Melinda did not file a motion to modify the physical custody designation and instead raised the request in her pretrial memorandum filed the same day as Paul's, Paul had no opportunity to respond or prepare. The district court's refusal to consider the request "properly recognized this potential due process violation" and was within its discretion. Ellis, 123 Nev. at 149, 161 P.3d at 241. The court also stressed that the district court did not outright deny the modification or preclude Melinda from seeking one; it declined to address it at that hearing. The existence of a scheduled hearing did not cure the due process concern, because proceeding without adequate notice would not comport with due process. See NRS 125A.345(1); Browning v. Dixon, 114 Nev. 213, 217, 954 P.2d 741, 743 (1998) (due process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections"). The court additionally deemed waived any challenge to the district court's failure to delay proceedings, because Melinda never requested a continuance. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A point not urged in the trial court, unless it goes to the jurisdiction of that court, is deemed to have been waived and will not be considered on appeal.").

In plain language

Melinda and Paul Miller divorced in 2016 and share joint physical and joint legal custody of one child. For years, their parenting-time schedule kept changing because of Paul's work as a pilot, and the constant changes led to a lot of litigation. In August 2022, Melinda asked the court to set a permanent schedule. While the case was pending, the court temporarily put in place a week-on/week-off arrangement. In early 2023, Paul asked the court to hold Melinda in contempt - a finding that a person disobeyed a clear court order - because, he said, the divorce decree gave him parenting time on President's Day weekend in odd-numbered years, but Melinda picked the child up from school and took him to a soccer tournament in Utah that weekend without Paul's consent. Melinda responded that Paul knew about the tournament and that his own failure to reliably use his parenting time should excuse her actions. Shortly before the evidentiary hearing, Melinda for the first time asked the court - in her pretrial memorandum - to give her primary physical custody, not just a new schedule. Paul filed his own pretrial memorandum the same day and did not address that request. At the start of the hearing, the court told Melinda it would not consider the primary-custody request because it was raised too late and Paul had not received adequate notice or a chance to defend against it. Melinda's attorney asked to amend the pleadings to match the evidence, but the court declined. After the hearing, the court set a new, more predictable schedule and found Melinda in contempt, concluding she intentionally took the child during Paul's clearly defined parenting time without his written consent. It ordered her to pay a $500 sanction and later awarded Paul $1,800 in attorney fees and costs for the contempt issue. Melinda asked the court to reconsider. In a later ruling, the court found a separate contempt motion by Paul to be frivolous and awarded Melinda $500 in fees for opposing it, reducing what she owed Paul to $1,300 plus the $500 sanction. The court kept the contempt finding and fee award but removed the "floating days" from the schedule. On appeal, the Court of Appeals affirmed on all three points. It held the district court acted within its discretion in finding Melinda in contempt because there was a clear order (the divorce decree), Melinda had notice and the ability to comply, and she intentionally violated it - something she acknowledged in her testimony. The court was not persuaded that Paul's own conduct excused her violation. On the sanction and fees, the court found Melinda's arguments unsupported by relevant authority. On the custody request, the court held the district court properly refused to consider a change to primary custody raised for the first time just before the hearing, because letting it proceed without giving Paul adequate notice and time to prepare would not satisfy due process. The appellate court also noted the district court did not permanently bar Melinda from seeking a custody modification in the future - it simply declined to address it at that hearing.