MINNEAR VS. MINNEAR (CHILD SUPPORT)

Statutes cited

Key holdings

Practitioner summary

NRS 125.210(3) gives the district court discretionary authority to change, modify, or revoke child support provisions in divorce decrees, reviewable only for abuse of discretion. Edwards v. Edwards, 82 Nev. 392, 393, 419 P.2d 637, 638 (1966). The referee's finding that the adult daughter was handicapped and in need of support under NRS 125B.110(1) rested on conflicting evidence and was within the referee's discretion; the district court's adoption of that recommendation was affirmed absent any particularized showing of abuse of discretion. On the increase, NRS 125B.080(8) provides that a willfully underemployed or unemployed parent's support obligation must be based on the parent's true potential earning capacity, but requires that the underemployment be "for the purpose of avoiding an obligation for support of a child." The court held that henceforth, where evidence of willful underemployment preponderates, a presumption arises that the underemployment is for the purpose of avoiding support, shifting to the supporting parent the burden of proving willful underemployment for reasons other than avoidance of a support obligation. Affirmed.

In plain language

A divorced mother asked the court to extend the father's child-support obligation for their eldest daughter, Jennifer, beyond age eighteen, because Jennifer was handicapped and unable to support herself, and to increase support for both daughters. The father, a board-certified physician, disputed how severe Jennifer's condition was and claimed his income did not exceed $1,200 per month, even though he and his current wife owned numerous rental properties generating about $6,045 per month in rent (he claimed almost all of it went to expenses, leaving only about $18 per month in net income). A domestic relations referee found that Jennifer was handicapped and in need of support under NRS 125B.110(1), found the father willfully underemployed under NRS 125B.080(8), and recommended raising support to $500 per child per month. The district court adopted the referee's recommendation in its entirety. The Nevada Supreme Court affirmed. On the extended support, the referee was presented with conflicting evidence and exercised his discretion, and the father pointed to no particularized abuse of discretion. On the underemployment finding, the statute requires not only willful underemployment but also that it be "for the purpose of avoiding" a support obligation. The court announced a new rule: where evidence of willful underemployment preponderates, a presumption arises that the underemployment is for the purpose of avoiding support, and the burden shifts to the paying parent to prove some other purpose. Affirmed.