MOORE VS. MOTEN (CHILD CUSTODY)

Key holdings

Practitioner summary

This is an appeal from a district court order modifying child custody. Although the order does not recite a standalone standard-of-review paragraph, the court frames Moore's arguments as claims that the district court "abused its discretion" in its evidentiary rulings. The district court reached the modification issue by first denying the parties' cross-contempt motions and scheduling an evidentiary hearing under Myers v. Haskins, 138 Nev., Adv. Op. 51, 513 P.3d 527 (Ct. App. 2022). In its subsequent thirty-page order, the district court found that Moten had established a prima facie case to modify custody under Romano v. Romano, 138 Nev. 1, 7, 501 P.3d 980, 985 (2022), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op. 48, 535 P.3d 1167, 1171 (2023), concluding that Moore's withholding of the children and her act of domestic violence against Moten in front of the children constituted a substantial change in circumstances affecting the welfare of the children. Applying the best-interest factors, the court found clear and convincing evidence of domestic violence, an inability to coparent, and a diminished likelihood that Moore would foster the children's sibling relationships. On the evidentiary challenges, the Court of Appeals applied the waiver rule of Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981), which holds that "[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." Because Moore lodged no objection at the hearing to the presentation or form of the evidence used (which included exhibits attached to the parties' prior motions for an order to show cause) or to the alleged hearsay statements, those arguments were waived. As to the video of the domestic violence incident - the only evidence Moore objected to below - the court applied the rule against raising new theories on appeal, citing Schuck v. Signature Flight Support of Nev., Inc., 126 Nev. 434, 437, 245 P.3d 542, 544 (2010) ("[P]arties may not raise a new theory for the first time on appeal, which is inconsistent with or different from the one raised below."). Moore's trial-level objection was that the video related to her criminal trial; her appellate objection was that the video was improperly disclosed under EDCR 5.506. Because the appellate theory differed from the objection preserved below, it was not properly before the court. On the Confrontation Clause claim, the court held the argument to be without merit because the Confrontation Clause does not apply in civil proceedings. The court cited U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." (emphasis added by the court)) and Austin v. United States, 509 U.S. 602, 608 n.4 (1993), for the proposition that the Confrontation Clause does not apply in civil cases. The court additionally found waiver under Old Aztec Mine and Ringle v. Bruton, 120 Nev. 82, 95, 86 P.3d 1032, 1040 (2004), noting that Moore never asserted inadequate notice, never attempted or requested to cross-examine Moten, and presented no objection to the form of the hearing. In a footnote, the court addressed Moore's related due process argument, observing that it was tied to her Confrontation Clause challenge and invoking the principle that where a particular Amendment "provides an explicit textual source of constitutional protection" against particular government behavior, that Amendment, rather than "the more generalized notion of 'substantive due process,'" governs the analysis, citing Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).

In plain language

Antonecia Moore and Christopher Moten have three children together. Under a partial parenting agreement and a custody order signed in June 2022, the two shared joint legal and physical custody of the children. After an incident at the children's school, Moore was arrested for domestic violence against Moten. Moten then asked the court to hold Moore in contempt for violating the parenting agreement, and Moore filed her own request to hold Moten in contempt. In his response, Moten also asked the court to give him primary physical custody, arguing that the domestic violence and Moore's withholding of the children amounted to a "substantial change in circumstances" - a legal threshold that must be met before a court will reconsider an existing custody arrangement. The district court denied both contempt requests and set an evidentiary hearing (a hearing where each side presents testimony and evidence) on whether to change custody. At that hearing, both parents represented themselves without lawyers. Neither side had properly prepared or exchanged exhibits ahead of time, so the court used documents each side had already filed with their earlier motions. Neither parent objected to the court using those earlier documents. Moore did object to one item - a video of the alleged domestic violence at the school - saying it was tied to her pending criminal case. The court reviewed the video after confirming Moore had earlier received a copy by email. The district court issued a thirty-page order giving Moten primary physical custody. It found that Moten had shown a "substantial change in circumstances affecting the welfare of the children" based on Moore's withholding the children and her act of domestic violence committed in front of them. Analyzing the best-interest factors, the court found clear and convincing evidence that Moore committed domestic violence, that the parents could not co-parent, and that Moore was less likely to support the children's relationship with their siblings. On appeal, Moore raised two main complaints. First, she said the court improperly considered evidence that had not been properly disclosed and relied on hearsay (out-of-court statements). Second, she said that because the judge led the questioning at the hearing, she was denied her right to confront and cross-examine witnesses, which she framed as a constitutional violation. The appeals court rejected both arguments. On the evidence issue, the court explained that Moore did not object at the hearing to most of the evidence or the alleged hearsay, so she gave up (waived) the right to raise those complaints on appeal. As for the video - the one item she did object to - her objection at the hearing was that it related to her criminal case, but on appeal she argued something different: that it was improperly disclosed under a court rule. Because a party cannot switch to a new argument on appeal, the court would not consider it. On the confrontation and due process argument, the court held that the Confrontation Clause - part of the Sixth Amendment to the U.S. Constitution - applies only to criminal prosecutions, not civil proceedings like this custody case. The court also noted that Moore never argued she lacked adequate notice of the hearing, never tried to cross-examine Moten, and never objected to how the hearing was run, so those points were waived as well. The court therefore affirmed the custody decision.