PAYNE VS. PAYNE (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's denial of a motion to modify child custody without an evidentiary hearing for abuse of discretion, citing Myers v. Haskins, 138 Nev., Adv. Op. 51, 513 P.3d 527, 531 (Ct. App. 2022). A district court abuses its discretion "only when 'no reasonable judge could reach a similar conclusion under the same circumstances.'" Id. (quoting In re Guardianship of Rubin, 137 Nev. 288, 294, 491 P.3d 1, 6 (2021)). The governing substantive standard for modification requires the movant to show "(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." Romano v. Romano, 138 Nev. 1, 3, 501 P.3d 980, 982 (2022) (quoting Ellis v. Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007)), abrogated in part by Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op. 48, 535 P.3d 1167, 1171 (2023). A district court may deny modification without an evidentiary hearing unless the movant has demonstrated "adequate cause," which arises when the movant demonstrates a prima facie case for modification within the affidavit and pleadings. Myers, 138 Nev., Adv. Op. 51, 513 P.3d at 531. 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) (alteration in original) (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. Id. at 529-30, 532. Applying this framework, the court held that the district court abused its discretion. Assuming the truth of Pamela's allegations, they could show a substantial change of circumstances affecting A.P.'s welfare and that A.P.'s best interest could be served by modification. The court pointed to alleged facts suggesting a deteriorated relationship with Dale manifesting in stomach issues, coparenting conflict, and concerns with A.P.'s emotional needs, citing NRS 125C.0035(4) (outlining the best interest factors). Addressing the district court's finding that most allegations duplicated Pamela's October 2021 therapy motion, the Court of Appeals explained that a substantial change in circumstances requires the movant to "allege facts that have occurred since the last custody determination." Myers, 138 Nev., Adv. Op. 51, 513 P.3d at 533 n.10. The court noted that a child custody determination includes orders providing "for the legal custody, physical custody or [parenting time] with respect to a child," citing NRS 125A.045(1). Because Pamela's October 2021 motion sought therapy—not modification of custody—and no custody determination was made based on those allegations, her allegations were not cumulative or impeaching under Arcella, 133 Nev. at 871, 407 P.3d at 345. The court expressly declined to opine on the merits, acknowledging that Dale's challenges "may eventually be proven correct or found more credible." Because no evidence had been taken and the district court had also denied the motion for A.P.'s testimony, the court held the motion could not properly be denied without an evidentiary hearing. The court reversed and remanded for proceedings consistent with its order.

In plain language

Pamela and Dale Payne divorced in Utah in 2018 and agreed to share both legal and physical custody of their child, A.P., who is now 12. After the family moved to Reno, the Utah divorce order was registered in Nevada in 2019. Over the following years, the parents reached several agreements—modifying the parenting schedule (while keeping shared physical custody) and arranging for A.P. to attend therapy. In 2023, Pamela filed the motion at the center of this appeal, asking the court to give her primary physical custody and to adjust child support. She listed many concerns: that A.P. was fearful of Dale and got stomachaches before spending time with him, that Dale talked to A.P. about the custody dispute and read one of Pamela's court filings to her, that Dale made hurtful comments about Pamela and about A.P.'s weight, that Dale told his male friends A.P. had gotten her period, that Dale did not follow parts of the divorce order, and that Dale blocked A.P. from contacting Pamela during his parenting time. Pamela argued these facts showed Dale was emotionally abusive and that conflict between the parents was high. Dale opposed the motion, saying Pamela was simply repeating allegations she had already raised in a 2021 filing about therapy, and he disputed whether her claims were true. Without holding a hearing, the district court denied Pamela's requests. The judge found many of the allegations were "stale," identical to the 2021 filing, and too broad or conclusory—for example, that Pamela did not provide specific dates for events like when A.P. cried or had stomach issues. The court identified only a few genuinely new allegations but concluded they did not show a substantial change in circumstances. The Court of Appeals disagreed with how the district court handled the motion. Under Nevada law, when a parent asks to change custody, the trial court must generally accept the parent's specific factual allegations as true when deciding whether to hold a hearing. Taking Pamela's allegations as true, the appeals court concluded they could show a substantial change affecting A.P.'s welfare—such as a deteriorating relationship with Dale, coparenting conflict, and concerns about A.P.'s emotional needs. The court also explained that Pamela's earlier 2021 motion was about therapy, not custody, and did not result in a custody decision, so her current allegations were not merely repetitive in the legal sense. The Court of Appeals stressed that it was not deciding whether Pamela's claims are true or whether she should win. It noted Dale's challenges to her allegations "may eventually be proven correct or found more credible." But because no evidence had yet been taken and the court had also refused to let A.P. testify, the appeals court held the district court could not properly deny the motion without an evidentiary hearing. It reversed and sent the case back for further proceedings.