OCASIO VS. WIRSZ C/W 87589

Statutes cited

Key holdings

• -Absent a motion for NRCP 60(b) relief from the ASAO or another request to set that order aside, there was no proper basis for the district court to set aside the ASAO based on the alleged fraud.
• -The prior appellate determination that Ocasio was not entitled to an evidentiary hearing on her fraud claim is law of the case.
• -Because the fraud claim provided no basis to modify custody and Ocasio developed no cogent argument tying the requested discovery to the best-interest factors, discovery into Wirsz's Idaho business opportunity was not relevant under NRCP 26(b)(1), and quashing the subpoenas was not an abuse of discretion.
• -A court "may not use changes of custody as a sword to punish parental misconduct."
• -Arguments to compel witness testimony or continue a hearing are forfeited where the party never moved for that relief below, and an unopposed motion to exclude a rebuttal expert forecloses appellate challenge to that exclusion.
• -A district court may rely on expert testimony diagnosing a parent where the diagnosis is supported by substantial evidence, and the appellate court will not reweigh the district court's credibility determinations.
• -The statutory presumption favoring joint legal custody under NRS 125C.002(1) is overcome when the district court finds the parents cannot cooperate, communicate, and compromise in the child's best interest.
• -NRS 125C.250 authorizes reasonable attorney fees in custody actions and requires findings of reasonableness, including the Brunzell factors and any income disparity under Wright; a court that refuses to exercise this discretion abuses it, but an award can be affirmed under NRS 125C.250 even where the district court declined to use that statute.
• -A challenge to a costs award is forfeited where the party fails to timely file a motion to retax and settle costs under NRS 18.110(4) and instead files only an opposition.

Practitioner summary

**Standard of review.** Custody determinations are reviewed for a clear abuse of discretion, and will not be disturbed absent one. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). An abuse of discretion occurs "when a district court's decision is not supported by substantial evidence or is clearly erroneous." Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018). Substantial evidence is "evidence that a reasonable person may accept as adequate to sustain a judgment." Ellis, 123 Nev. at 149, 161 P.3d at 242. Discovery rulings are within the district court's sound discretion. Venetian Casino Resort, LLC v. Eighth Jud. Dist. Ct., 136 Nev. 221, 224, 467 P.3d 1, 4 (Ct. App. 2020) (quoting Club Vista Fin. Servs., LLC v. Eighth Jud. Dist. Ct., 128 Nev. 224, 228, 276 P.3d 246, 249 (2012)). Expert-admissibility decisions are reviewed for abuse of discretion. Hallmark v. Eldridge, 124 Nev. 492, 498-99, 189 P.3d 646, 650-51 (2008). Attorney fees and costs awards are reviewed for abuse of discretion, but questions of law within a fees matter are reviewed de novo. LVMPD v. Yeghiazarian, 129 Nev. 760, 769, 312 P.3d 503, 510 (2013); Thomas v. City of N. Las Vegas, 122 Nev. 82, 90, 127 P.3d 1057, 1063 (2006). **Fraud claim and ASAO-related discovery.** The court declined to reach the NRCP 60(b) timing question, holding instead that because Ocasio never filed a motion for NRCP 60(b) relief from the ASAO and did not otherwise seek to set it aside, there was no proper basis for the district court to set aside the ASAO based on Wirsz's purported fraud. The court further held that its prior decision, Ocasio v. Wirsz, No. 84089-COA, 2022 WL 12469761, at *2 (Nev. Ct. App. Oct. 20, 2022), that Ocasio was not entitled to an evidentiary hearing on the fraud claim, was law of the case. See Geissel v. Galbraith, 105 Nev. 101, 103, 769 P.2d 1294, 1296 (1989), modified on other grounds by Willerton v. Bassham, 111 Nev. 10, 17 n.6, 889 P.2d 823, 827 n.6 (1995). Consequently, discovery into the Idaho business opportunity was not relevant to the motion to modify on the fraud ground under NRCP 26(b)(1). To the extent the discovery was said to bear on the best-interest analysis for Wirsz's custody motion, Ocasio failed to develop a cogent argument and did not directly challenge the district court's NRS 125C.0035(4) best-interest findings, forfeiting those challenges. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006); Palmieri v. Clark County, 131 Nev. 1028, 1033 n.2, 367 P.3d 442, 446 n.2 (Ct. App. 2015). The court also noted that changes of custody may not be used "as a sword to punish parental misconduct." Sims v. Sims, 109 Nev. 1146, 1149, 865 P.2d 328, 330 (1993). It found no showing that precluding discovery affected Ocasio's substantial rights. Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010). **Witness arguments forfeited.** Ocasio's arguments that the district court should have compelled Dr. Bradley's testimony, required live testimony from Freer rather than deposition testimony under NRCP 32(a)(4), and continued the hearing, were forfeited because she never moved to compel their trial testimony below. Allum v. Valley Bank of Nev., 114 Nev. 1313, 1324, 970 P.2d 1062, 1069 (1998); Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). Her contention that the court had to act sua sponte was unsupported by authority. Edwards, 122 Nev. at 330 n.38, 130 P.3d at 1288 n.38. Her challenge to the exclusion of Wygant as a rebuttal expert was forfeited because she filed no opposition to Wirsz's motion to exclude him. Old Aztec, 97 Nev. at 52, 623 P.2d at 983. **Reliance on Dr. Brown.** A decision to allow expert testimony is upheld if supported by substantial evidence. Hallmark, 124 Nev. at 498-99, 189 P.3d at 650-51. Ocasio abandoned in her reply brief any Hallmark challenge to admissibility. Dr. Brown testified he conducted a two-hour interview and mental status examination and reviewed extensive records before diagnosing narcissistic personality disorder under the DSM-5, and gave specific examples of symptoms. His own testimony belied the claim that Dr. Bradley's testing was required; he described updated testing merely as "an additional data point." The district court found the diagnosis credible, and the appellate court declined to reweigh credibility. Ellis, 123 Nev. at 152, 161 P.3d at 244. **Sole legal custody.** Legal custody involves "having basic legal responsibility for a child and making major decisions." Rivero v. Rivero, 125 Nev. 410, 420, 216 P.3d 213, 221 (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. 401, 404-05, 535 P.3d 1167, 1171 (2023). There is a statutory presumption that joint legal custody is in the child's best interest if conditions are met, NRS 125C.002(1), but it is overcome when parents cannot "cooperate, communicate, and compromise to act in the best interest of the child." Rivero, 125 Nev. at 420, 216 P.3d at 221; see Lee v. Perry, No. 90830-COA, 2026 WL 1424741, at *4 (Nev. Ct. App. May 20, 2026). The court held the district court did not rely exclusively on the diagnosis; it made findings under NRS 125C.0035(4)(e) (parents' ability to cooperate, favoring Wirsz largely due to Ocasio's refusal to address issues directly with him) and NRS 125C.0035(4)(f) (physical and mental health, favoring Wirsz). Dr. Brown's testimony connected the diagnosis to an inability to cooperate, communicate, and compromise. Rivero's asserted requirement to find lesser remedies inadequate was rejected as unsupported by that decision. The presumption was overcome and the award was supported by substantial evidence. **Attorney fees.** The court declined to reach Ocasio's challenges under EDCR 5.219 and 5.501, NRS 22.100(3), NRCP 26(c)(3) and 37(a)(5), and the ASAO, because the award could be affirmed under NRS 125C.250. Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987). NRS 125C.250 authorizes reasonable fees of counsel and experts in custody actions and gives "broad discretion." Matkulak v. Davis, 138 Nev. 647, 651, 516 P.3d 667, 671-72 (2022). The district court had abused its discretion by refusing to exercise discretion it "unquestionably ha[d]," Lund v. Eighth Jud. Dist. Ct., 127 Nev. 358, 363, 255 P.3d 280, 284 (2011), when it concluded NRS 125C.250 did not support fees for lack of guidance. Adequate findings of reasonableness are required, Roe v. Roe, 139 Nev. 163, 184, 535 P.3d 274, 294 (Ct. App. 2023); cf. O'Connell v. Wynn Las Vegas, LLC, 134 Nev. 550, 560, 429 P.3d 664, 672 (Ct. App. 2019), including consideration of the Brunzell factors, Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969), and income disparity under Wright v. Osburn, 114 Nev. 1367, 1370, 970 P.2d 1071, 1073 (1998). See Miller v. Wilfong, 121 Nev. 619, 623-24, 119 P.3d 727, 730 (2005). The district court made detailed Brunzell findings (unchallenged, and thus forfeited under Palmieri) and compared the parties' financial disclosure forms (Ocasio's gross monthly income $9,488.61; Wirsz's $1,331.10), finding "there is no disparity in income at this time to consider." Ocasio cited no authority requiring wealth and assets to be included as income under Wright. The $69,214.51 award was affirmed under NRS 125C.250. See Pelz v. Perea, No. 90584-COA, 2026 WL 1017534, at *2-3 (Nev. Ct. App. Apr. 14, 2026). **Costs.** Ocasio filed an opposition rather than a motion to retax and settle costs under NRS 18.110(4), which allows the adverse party three days to so move. Because she did not file the required motion, appellate review was forfeited. Sheehan & Sheehan v. Nelson Malley & Co., 121 Nev. 481, 493, 117 P.3d 219, 227 (2005). Even treated as a motion to retax, it was untimely. Randono v. Turk, 86 Nev. 123, 132, 466 P.2d 218, 224 (1970). The $85,844.22 costs award was affirmed.

In plain language

Magdalena Ocasio and Jonathan Wirsz were never married but have one child together, M.W., born in 2014. Over several years they repeatedly went to court over custody. In 2020, a judge gave Wirsz primary physical custody and both parents shared joint legal custody, but with Wirsz holding "tie-breaking" authority to make decisions when they disagreed. Wirsz later asked to move with M.W. from Nevada to Idaho, saying he had a business opportunity there. Before the court ruled, the parents reached an agreement (called an "amended stipulation and order," or ASAO) that let him move and kept the existing custody arrangement. In that agreement, both parents gave up the right to reconsider or appeal the 2020 custody order or the ASAO, agreed that the winner of any future dispute about the agreement would get attorney fees, and promised to talk to each other about concerns over M.W. before taking those concerns to anyone else. Later, Ocasio claimed Wirsz tricked her into the move because he never actually took the Idaho business job. She also alleged he punished M.W. by making her eat hot sauce or hot peppers. She asked the court to change custody and move M.W. back to Nevada. An earlier appeal sent part of the case back to the trial court for a hearing on some of her claims — but that earlier decision also said Ocasio was not entitled to a hearing on her fraud claims because she had not shown the alleged fraud was a legally significant change, and had not filed the specific kind of motion (an NRCP 60(b) motion) needed to undo the ASAO. Back in the trial court, the fight expanded. Wirsz asked for sole legal custody, for Ocasio's parenting time to be reduced, and for her to undergo a psychiatric evaluation. He also asked the court to hold her in contempt for accusing him of abuse without first raising it with him as the ASAO required. Ocasio tried to subpoena records about Wirsz's Idaho business to prove the alleged fraud. The court blocked those subpoenas, finding the business records irrelevant because Ocasio had never filed a motion to set aside the ASAO and had a history of misusing Wirsz's financial information. At a multi-day hearing, a psychiatrist Wirsz hired, Dr. Gregory Brown, testified that Ocasio met the criteria for narcissistic personality disorder and explained how that condition can make coparenting very difficult. Ocasio wanted to challenge that diagnosis using raw test data from another psychologist, Dr. Bradley, but Dr. Bradley did not appear to testify. Ocasio never formally asked the court to force Dr. Bradley to testify or to delay the hearing for that purpose. The court also excluded Ocasio's rebuttal expert, Wygant, because he was disclosed too late, and Ocasio never filed a written response opposing his exclusion. After the hearing, the court denied Ocasio's request to move M.W. and change custody, kept Wirsz's primary physical custody, gave Wirsz sole legal custody, and held Ocasio in contempt for making abuse claims in a 2021 declaration without first discussing them with Wirsz. The court also awarded Wirsz roughly $69,000 in attorney fees and about $86,000 in costs. On appeal, the Court of Appeals rejected all of Ocasio's arguments. It held that because she never filed the proper motion to undo the ASAO, the trial court did not have to revisit the fraud claim or allow discovery about the Idaho business. It held she gave up (forfeited) her arguments about the witnesses because she did not properly raise them below. It held the court could rely on Dr. Brown's diagnosis, which was supported by the evidence, and that the court properly connected her diagnosis and her refusal to communicate to its decision to give Wirsz sole legal custody. Finally, it upheld the fee and cost awards, though it affirmed the fees on a different legal basis (NRS 125C.250) than the trial court used, and it held Ocasio lost her challenge to the costs because she filed the wrong type of paper (an opposition instead of a motion to retax) and filed it too late.