NURI VS. JARSO (CHILD CUSTODY)

Key holdings

Practitioner summary

The Court first addressed appellate jurisdiction. Citing NRAP 3A(b)(8), the Court held the order setting aside the divorce decree was a special order after final judgment and therefore appealable. See Brown v. MHC Stagecoach, LLC, 129 Nev. 343, 345, 301 P.3d 850, 851 (2013); Peck v. Crowser, 129 Nev. 120, 123, 295 P.3d 586, 587-88 (2013). Although Jarso styled her motion under NRCP 60(b), the Court looked to the substance of the district court's order and concluded relief was granted under NRCP 60(d)(3), which permits setting aside a judgment for "fraud upon the court." The Court distinguished its limited jurisdiction over NRCP 60(b) orders, citing Vargas v. J Morales, Inc., 138 Nev., Adv. Op. 38, 510 P.3d 777, 778 (2022), and Est. of Adams ex rel. Adams v. Fallini, 132 Nev. 814, 818, 386 P.3d 621, 624 (2016), and held NRAP 3A(b)(8) does not limit jurisdiction over orders granting relief pursuant to NRCP 60(d)(3). On the merits, the Court applied an abuse-of-discretion standard. Price v. Dunn, 106 Nev. 100, 103, 787 P.2d 785, 787 (1990). Factual findings are upheld if not clearly erroneous and supported by substantial evidence. Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). Substantial evidence supported the district court's finding that Nuri obtained the decree by fraud upon the court: knowing Jarso was outside Nevada and when she would return, he nevertheless represented to the court that he did not know where she could be found, in order to secure service by publication under the then-applicable NRCP 4(e)(1)(i) (2018). Relying on Price, 106 Nev. at 103-05, 787 P.2d at 787-88, the Court concluded Nuri "intentionally kept [Jarso] away from the hearing" and "prevented a real trial on the issues." See also Savage v. Salzmann, 88 Nev. 193, 195, 495 P.2d 367, 368 (1972) (quoting Murphy v. Murphy, 65 Nev. 264, 271, 193 P.2d 850, 854 (1948)); NC-DSH, Inc. v. Garner, 125 Nev. 647, 650-51, 218 P.3d 853, 856 (2009). The Court held Nuri waived his timeliness challenge by failing to raise it below, citing Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981), but in any event Jarso's motion was filed "within a reasonable time" - within a week of learning of the default divorce. See Kaur v. Singh, 136 Nev. 653, 655-56, 477 P.3d 358, 361-62 (2020). Finally, the Court rejected Nuri's argument that the district court was required to analyze the Yochum factors. Because relief was granted under NRCP 60(d)(3) rather than NRCP 60(b)(1), the Yochum analysis required by Willard v. Berry-Hinckley Indus., 136 Nev. 467, 470, 469 P.3d 176, 179-80 (2020), did not apply. See Yochum v. Davis, 98 Nev. 484, 486, 653 P.2d 1215, 1216 (1982), overruled on other grounds by Epstein v. Epstein, 113 Nev. 1401, 1405, 950 P.2d 771, 773 (1997).

In plain language

In 2018, Yusuf Nuri filed for divorce from Fasika Jarso. He knew Jarso was on an extended vacation in another state, but he told the district court he did not know where to find her. Based on that representation, the court allowed Nuri to serve Jarso by publication - that is, by publishing notice of the lawsuit in a newspaper rather than handing her the papers directly. When Jarso did not respond (because she did not know about the case), the court entered a divorce by default. After the divorce, the parties continued to live together. Years later, Jarso learned about the divorce and asked the district court to set it aside, arguing she had never been served. The district court agreed and vacated the divorce decree. Nuri appealed. The Nevada Supreme Court affirmed. It found that Nuri had committed a "fraud upon the court" by telling the judge he could not locate Jarso when, in fact, he knew where she was and when she would return. Because Nuri obtained the divorce by deceiving the court about service, the district court was within its discretion to undo it. The Supreme Court also found that Jarso acted promptly, filing her motion within a week of learning about the default divorce.