MIZRACHI VS. MIZRACHI, JR. (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The panel reviewed each of Dory's six assignments of error under the applicable standards and affirmed. Finality of the March 2022 order. Dory contended the March 2022 order was a final order resolving Eli's motion to modify, precluding further hearings. Citing Sandstrom v. Second Jud. Dist. Ct., 121 Nev. 657, 659, 119 P.3d 1250, 1252 (2005), the court reiterated that "a final order [is] one that disposes of all issues and leaves nothing for future consideration." The March 2022 order was expressly temporary, incorporated the parties' interim agreement, maintained the prior timeshare, permitted J.M. some "teenage discretion," and stated the court would revisit custody later. See also Nev. Gaming Comm'n v. Wynn, 138 Nev. 164, 168, 507 P.3d 183, 187 (2022) ("For an order to be final, it must dispose of all the issues presented in a case."). Dory failed to show the order was final. Recusal of Judge Perry. Recusal decisions receive substantial weight and are reviewed for clear abuse of discretion. Rivero v. Rivero, 125 Nev. 410, 439, 216 P.3d 213, 233 (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). Under NRS 1.230(8), a judge may disqualify herself on the ground of actual or implied bias. Because Dory did not object to Judge Perry's recusal below, the panel deemed the issue waived under Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). Reassignment to Judge Throne. Questions of law under the Nevada Rules of Civil Procedure are reviewed de novo. Power Co. v. Henry, 130 Nev. 182, 186, 321 P.3d 858, 860-61 (2014). Under NRCP 63, a successor judge "may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties," and must, on a party's request, recall material and disputed witnesses who remain available. Judge Throne acknowledged the prior hearing days, agreed to review the video recordings (as Dory urged), inquired whether the parties wished to recall witnesses (neither did), and referenced prior testimony at the subsequent hearing. The panel concluded Dory failed to show Judge Throne was unfamiliar with the record or that any prejudice resulted, and that any argument she was insufficiently familiar was waived under Old Aztec Mine, Inc. Merits of the custody modification. Child custody decisions are reviewed for abuse of discretion, with factual findings affirmed if supported by substantial evidence. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007). The sole consideration is the child's best interest, NRS 125C.0035(1); Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015), and the district court is presumed to have properly exercised its discretion, Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). Modification requires (1) a substantial change in circumstances affecting the child's welfare and (2) that the child's best interest is served by modification. Romano, 138 Nev. at 5, 501 P.3d at 983. A court may award one parent primary physical custody if joint physical custody is not in the child's best interest. NRS 125C.003(1). The district court found a substantial change (J.M.'s developmental maturation from age three to nearly 14 and the serious deterioration and dysfunction in his relationship with Dory, including repeated police calls) and analyzed the best interest factors under NRS 125C.0035(4), finding several favored Eli: the child's wishes, NRS 125C.0035(4)(a); ability to meet developmental and emotional needs, NRS 125C.0035(4)(g); the nature of the parent-child relationships, NRS 125C.0035(4)(h); and the sibling relationship, NRS 125C.0035(4)(i). The panel found the findings supported by substantial evidence, declined to second-guess credibility or conflicting-evidence resolutions per Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009), and discerned no abuse of discretion. Exclusion of pre-divorce domestic violence evidence. Evidentiary exclusions are reviewed for abuse of discretion, not disturbed "absent a showing of palpable abuse," M.C. Multi-Family Dev., L.L.C. v. Crestdale Assocs., Ltd., 124 Nev. 901, 913, 193 P.3d 536, 544 (2008), with legal questions reviewed de novo, Nance v. Ferraro, 134 Nev. 152, 156, 418 P.3d 679, 683 (Ct. App. 2018). Under Nance, litigants may not use facts known at the time of the prior custody order to show a substantial change in circumstances, but are not barred "from using previously known evidence of domestic violence defensively to argue modification is not in the child's best interest." Id. at 163, 418 P.3d at 688. The panel observed such evidence may have been relevant to best interest, citing NRS 125C.0035(4)(k) and NRS 48.015. However, applying harmless-error review under Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010), the court held that, even assuming error, Dory failed to show prejudice—she offered no factual explanation of the allegations and did not argue a different result might reasonably have been reached—and the district court had made detailed best interest findings centered on the Dory–J.M. relationship. See also NRCP 61. The panel noted Dory did not invoke the NRS 125C.0035(5) presumption and thus waived it, citing Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011). Exclusion of the new therapist's testimony. Applying the same abuse-of-discretion standard for evidentiary exclusion, M.C. Multi-Family Dev., 124 Nev. at 913, 193 P.3d at 544, the panel addressed the law-of-the-case doctrine, reviewing its applicability de novo and its application for abuse of discretion. Litchfield v. Tucson Ridge Homeowners Ass'n, 140 Nev., Adv. Op. 57, 555 P.3d 267, 269-71 (2024). Because Judge Perry had already decided the new therapist would not testify, the doctrine applied, and a successor judge should not revisit such issues absent an exception, such as when subsequent proceedings produce "substantially new or different evidence." Dory did not identify such information, explain how it could have altered the proceedings, or justify departure from the prior ruling. The panel concluded the decision was not arbitrary, capricious, or beyond the bounds of law or reason. Skender v. Brunsonbuilt Constr. & Dev. Co., 122 Nev. 1430, 1435, 148 P.3d 710, 714 (2006).

In plain language

Dory and Eli Mizrachi divorced in 2012. In their divorce, the court gave both parents joint legal custody (shared authority over major decisions) and joint physical custody (roughly shared parenting time) of their son, J.M., who was born in 2008. In 2020, Eli asked the court to change the custody arrangement so he would have primary physical custody. He said J.M. reported that Dory had physically struck him, used inappropriate language, and had inappropriate conversations with him, and that Dory sometimes left the home at night, leaving J.M. unsupervised. Eli argued this amounted to a "substantial change in circumstances" affecting J.M.'s welfare and that giving him primary physical custody was in J.M.'s best interest. Dory disagreed, denied mistreating J.M., raised claims of domestic violence she said Eli committed during the marriage, and asked to keep the existing shared arrangement. The case moved through several stages. In March 2022, the court entered an order reflecting a temporary agreement letting J.M., who was older by then, use some discretion about how long he stayed with each parent. Later, the judge originally handling the case, Judge Mary Perry, recused herself (stepped aside) after acknowledging she had improperly asked Dory's attorney to help her courtroom clerk with a court issue. Eli asked her to recuse; Dory did not object. The case was reassigned to Judge Dawn Throne, who reviewed the record and video recordings of prior testimony rather than starting the whole hearing over. Neither party wanted to recall witnesses. After hearing evidence, including testimony from J.M. and both parents, Judge Throne found there had been a substantial change in circumstances, chiefly the serious deterioration of the relationship between J.M. and Dory. The court reviewed the statutory "best interest" factors and concluded it was in J.M.'s best interest to give Eli primary physical custody, while keeping joint legal custody and giving Dory scheduled parenting time. On appeal, Dory made six arguments. The Court of Appeals rejected all of them. It held: the March 2022 order was temporary, not final, so the court could keep holding hearings; Dory waived her complaint about Judge Perry's recusal because she did not object at the time; Judge Throne was sufficiently familiar with the record and did not have to restart the hearing; the custody modification was supported by substantial evidence and was not an abuse of the court's discretion; even if the court was wrong to exclude testimony about pre-divorce domestic violence, Dory did not show that error affected the outcome (so it was "harmless"); and the exclusion of the child's new therapist's testimony was proper under the "law-of-the-case doctrine" because a prior judge had already decided that issue and Dory did not show a reason to revisit it.