OCASIO VS. WIRSZ (CHILD CUSTODY)

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's decision not to hold an evidentiary hearing before denying a motion to modify custody for abuse of discretion, citing Bautista v. Picone, 134 Nev. 334, 338, 419 P.3d 157, 160 (2018). A district court abuses its discretion when its findings of fact are not supported by substantial evidence, per Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 984 (2022). The governing framework: under Rooney v. Rooney, 109 Nev. 540, 542, 853 P.2d 123, 124 (1993), a district court has discretion to deny a motion to modify custody without a hearing unless the moving party demonstrates "adequate cause" for a hearing, which arises when the movant demonstrates a prima facie case for modification. In assessing a prima facie case, the district court may generally consider only "the properly alleged facts in the movant's verified pleadings, affidavits, or declarations" and must accept the movant's specific allegations as true, per Myers v. Haskins, 138 Nev., Adv. Op. 51, 513 P.3d 527, 529-30, 532 (Ct. App. 2022). The court typically must not consider the nonmovant's factual allegations or offers of proof, but "may look to the nonmovant's evidentiary support when it 'conclusively establishes' the falsity of the movant's allegations." Id. at 530. To demonstrate a prima facie case, per Arcella v. Arcella, 133 Nev. 868, 871, 407 P.3d 341, 345 (2017) (quoting Rooney), a movant must show that "(1) the facts alleged in the affidavits are relevant to the [relief requested]; and (2) the evidence is not merely cumulative or impeaching." To modify physical custody, the movant must show, per Romano, 138 Nev., Adv. Op. 1, 501 P.3d at 983 (quoting Ellis v. Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007)), that "(1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child's best interest is served by the modification." Applying this framework, the court analyzed Ocasio's two claims separately. On the fraud claim (that Wirsz never took the job underlying the Idaho relocation), the court declined to consider the argument because Ocasio provided no relevant authority that discovery of alleged fraud constitutes a substantial change of circumstances affecting the child's welfare, citing Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). The court also noted Ocasio did not file a motion under NRCP 60(b)(3). On the parenting-time and alienation claim, the court held the allegations were not previously raised and not cumulative or impeaching, citing Arcella, 133 Nev. at 871, 407 P.3d at 345, and could show a substantial change of circumstances affecting the child's welfare with the child's best interests potentially served by modification, citing Romano, 138 Nev., Adv. Op. 1, 501 P.3d at 983. Because Wirsz had not conclusively refuted the allegations at this stage, "especially as to the joint legal custody issue," the court concluded the district court abused its discretion in refusing to hold an evidentiary hearing. The court noted the district court did not have the benefit of the Myers opinion when it ruled. The court also declined to reach Ocasio's argument that the litigation moratorium was improperly relied upon, finding the district court relied on the Rooney and Ellis standards rather than the moratorium, and citing Douglas Disposal, Inc. v. Pelkola, 123 Nev. 552, 557 n.6, 170 P.3d 508, 512 n.6 (2007), for the proposition that issues not decided by the district court need not be reached. On attorney fees, pursuant to the Nevada Supreme Court's order, Ocasio could only appeal the denial of new claims for attorney fees denied in the December 2021 order. Ocasio argued the district court erred in denying relief under NRCP 52 for findings relative to income disparity and the attorney fees denial. Because Ocasio did not reply to Wirsz's argument that she failed to raise any new attorney fees claims, the court treated the non-response as a concession, citing Ozawa v. Vision Airlines, Inc., 125 Nev. 556, 563, 216 P.3d 788, 793 (2009), and Colton v. Murphy, 71 Nev. 71, 72, 279 P.2d 1036, 1036 (1955). The court also noted the record did not appear to reveal a new claim for attorney fees.

In plain language

This case concerns a custody dispute between two parents, Magdalena Ocasio and Jonathan Jordan Wirsz, who share a minor child referred to as M.W. In June 2020, Wirsz was granted primary physical custody, joint legal custody, and "tie breaking decision-making authority" - meaning the ability to make the final call when the parents disagree on decisions about the child. In September 2020, the parents agreed to an amended arrangement (called the ASAO) that let Wirsz and the child move to northern Idaho while keeping the same custody structure. That agreement also set a parenting-time schedule and a three-year pause on further court fights, with exceptions for emergencies and serious breaches. After the agreement took effect, Ocasio came to believe that Wirsz should not have primary custody and decision-making power. In August 2021 she asked the court to change the custody arrangement. The district court denied her request without holding an evidentiary hearing - that is, a hearing where evidence and testimony are presented. The court's order essentially stated that Ocasio had not made "a prima facie case of a substantial change in circumstance" affecting the child's welfare. A "prima facie case" means enough of an initial showing, taken as true, to justify a fuller look at the issue. Ocasio raised two main claims. First, she argued the original relocation agreement was based on fraud because Wirsz never took the job that supposedly justified the move to Idaho. The Court of Appeals declined to consider this argument, explaining that Ocasio provided no legal authority showing that discovering alleged fraud counts as a substantial change of circumstances affecting the child, and noting she did not file a motion under the rule that allows setting aside an order for fraud. Second, Ocasio alleged that Wirsz was limiting her parenting time and turning the child against her - including disrupting Skype calls, blocking her from medical information, limiting her access to information about the child's education, refusing to investigate potential medical issues, and scheduling flights to interfere with her parenting time. The Court of Appeals concluded that these allegations were new, not merely repetitive, and could show a substantial change in circumstances affecting the child's welfare. Because Wirsz had not conclusively disproven these allegations at this stage, the court held that the district court should have held an evidentiary hearing. The court reversed and sent the case back for further proceedings. The Court of Appeals also addressed Ocasio's request for attorney fees. It concluded she did not raise a new claim for attorney fees in her November 2021 motion, and that her failure to respond to Wirsz's argument on that point was treated as a concession that his argument had merit.