OLLERTON VS. AYALA

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's resolution of a relocation motion for abuse of discretion, citing Monahan v. Hogan, 138 Nev. 58, 69, 507 P.3d 588, 596 (Ct. App. 2022), and reviewed the denial of a motion to modify custodial orders without an evidentiary hearing for abuse of discretion under Myers v. Haskins, 138 Nev., Adv. Op. 51, 513 P.3d 527, 531 (Ct. App. 2022). An abuse of discretion occurs only when "no reasonable judge could reach a similar conclusion under the same circumstances." Id. (quoting Matter of Guardianship of Rubin, 137 Nev. 288, 294, 491 P.3d 1, 6 (2021)). The court applied the "adequate cause" framework governing when an evidentiary hearing is required. Adequate cause "arises if the movant demonstrates a prima facie case for modification" within the movant's affidavit and pleadings. Id. at 531-32. To demonstrate a prima facie case, 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." Arcella v. Arcella, 133 Nev. 868, 871, 407 P.3d 341, 345 (2017) (quoting Rooney v. Rooney, 109 Nev. 540, 543, 853 P.2d 123, 125 (1993)). Under Myers, the district court may generally only consider "the properly alleged facts in the movant's verified pleadings, affidavits, or declarations" and "must accept the movant's specific allegations as true" when determining whether a prima facie case has been established. Myers, 138 Nev., Adv. Op. 51, 513 P.3d at 529-30, 532. On the substantive relocation framework, the court explained that a primary physical custodian seeking to relocate outside Nevada with the children without the noncustodial parent's written consent must petition the district court under NRS 125C.006(1). The district court must first determine whether the relocating parent established a sensible, good faith reason for relocating not intended to deprive the non-relocating parent of parenting time; that the best interest of the children is served; and that relocation will result in an actual advantage benefiting the children and relocating parent, pursuant to NRS 125C.007(1). In making the best interest determination, courts should consider the enumerated NRS 125C.0035(4) factors and any applicable nonenumerated factors. See Monahan, 138 Nev. at 67-68, 507 P.3d at 595. If the threshold standard is met, the court must consider the five factors set out in NRS 125C.007(2); Monahan, 138 Nev. at 59, 507 P.3d at 589-90. Applying this framework, the court held that Yvonne presented facts relevant to relocation and not merely cumulative or impeaching, sufficient to demonstrate adequate cause for an evidentiary hearing. See Arcella, 133 Nev. at 871, 407 P.3d at 345; Pelkola v. Pelkola, 137 Nev. 271, 272, 487 P.3d 807, 809 (2021). Specifically, her motion argued the parties had difficulty co-parenting, implicating NRS 125C.0035(4)(d) and (e), and asserted a greater ability to provide for the children in Ohio due to lower cost of living and housing, a recognized nonenumerated factor under Monahan, 138 Nev. at 67, 507 P.3d at 595. The district court denied the motion without an evidentiary hearing and without specific findings on the relocation factors or the children's best interest. See Druckman v. Ruscitti, 130 Nev. 468, 473, 327 P.3d 511, 515 (2014). The court further observed that the district court did not appear to consider the domestic violence incidents that Rigoberto acknowledged, implicating NRS 125C.0035(4)(k), and did not explain how relocation would not benefit the children in light of those undisputed incidents. See Nance v. Ferraro, 134 Nev. 152, 162, 418 P.3d 679, 687 (Ct. App. 2018); McGuinness v. McGuinness, 114 Nev. 1431, 1436, 970 P.2d 1074, 1078 (1998). The court concluded the district court abused its discretion in denying the motion without conducting an evidentiary hearing, and reversed and remanded.

In plain language

Yvonne Ollerton and Rigoberto Ayala were never married but have two children together, born in 2008 and 2009. In 2016, a court gave the parents joint legal custody and gave Yvonne primary physical custody, meaning the children live mainly with her, while Rigoberto had scheduled parenting time. In December 2022, Yvonne asked the court for permission to move to Ohio with the children in the summer of 2023. She said she wanted to move for her own safety and well-being, describing a history of domestic violence by Rigoberto, including incidents in August 2020 and August 2021 where she said she had to physically defend herself in front of the children. She also said Ohio offered a better education system, a lower cost of living, and cheaper housing, and she attached a cost-of-living and housing comparison between Columbus, Ohio and Las Vegas. She tried to get Rigoberto's written permission by email, but he did not respond. Rigoberto opposed the move, arguing that Yvonne's reasons were personal to her rather than in the children's best interest, and that the children had family support in Las Vegas. However, he acknowledged that the domestic violence occurred, stating "for the domestic [violence] I will hold myself accountable," and at the hearing admitted he was "definitely in the wrong." At a March 2023 hearing, the district court said its job was to decide whether Yvonne had shown "adequate cause" to hold a fuller evidentiary hearing (a hearing where witnesses testify and evidence is presented). The court found she had "sensible good faith reasons" for wanting to move, but was not convinced she had shown that the children would gain an actual advantage from the move or that the move would serve their best interest. The court denied her motion without holding an evidentiary hearing. On appeal, the Court of Appeals of Nevada disagreed with how the district court handled the request. The appeals court explained that when a parent's written filings lay out a prima facie case - meaning enough relevant, non-repetitive facts that, if true, would support the request - the court should hold an evidentiary hearing rather than deny the motion outright. The appeals court concluded that Yvonne's filings did present relevant facts, including the parents' difficulty co-parenting and the financial benefits of moving to Ohio. The appeals court also noted that the district court did not appear to consider the domestic violence incidents - which Rigoberto himself acknowledged - when deciding the motion, and did not explain how relocation would fail to benefit the children given those incidents. For these reasons, the appeals court reversed the district court's order and sent the case back for further proceedings.