PEDERSON VS. JETER (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the custody decision for an abuse of discretion, declining to disturb findings supported by substantial evidence, citing Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009), overruled on other grounds by Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 984 (2022), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op. 43, 535 P.3d 1167, 1171 (2023). The sole consideration in a custody determination is the best interest of the child, NRS 125C.0035(1), and the district court is presumed to have properly exercised its discretion, Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). The denial of a modification motion without an evidentiary hearing is likewise reviewed for abuse of discretion. Myers v. Haskins, 138 Nev., Adv. Op. 51, 513 P.3d 527, 531 (Ct. App. 2022) (citing Bautista v. Picone, 134 Nev. 334, 338, 419 P.3d 157, 160 (2018)). The court noted that a child custody determination includes orders providing for legal custody, physical custody, or parenting time, citing NRS 125A.045(1). On the evidentiary-hearing issue, appellant argued that although the district court found he failed to demonstrate a prima facie case for modification under Rooney v. Rooney, 109 Nev. 540, 542-43, 853 P.2d 123, 124-25 (1993), respondent had also not demonstrated a prima facie case. The court rejected this framing because the burden of presenting a prima facie case falls on the movant, not the nonmoving party. See Myers, 138 Nev., Adv. Op. 51, 513 P.3d at 531 (quoting Rooney, 109 Nev. at 542, 853 P.2d at 124). Because appellant did not otherwise address the district court's conclusion that no evidentiary hearing was warranted, the court declined further consideration under Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (claims not cogently argued need not be considered). On the merits of modification, the court restated the two-part test: the movant must demonstrate 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." 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)). Appellant's arguments - that state and federal law encourage parent-child interaction and that he had completed parenting and behavioral courses while incarcerated - did not address the district court's primary conclusion that there was insufficient evidence a modification would serve the children's best interest. His only best-interest-related argument, that his convictions had nothing to do with his biological children, was belied by the record and conflicted with the express findings in the unappealed 2018 custody decree. See Verner v. Jouflas, 95 Nev. 69, 70-71, 589 P.2d 1025, 1026 (1979) (a party waives the right to challenge an appealable order by failing to appeal it). On reconsideration, the court held there was no abuse of discretion in ruling without a reply brief: under WDGCR 12(4), a reply is optional, and appellant chose to submit the matter for decision. See AA Primo Builders, LLC v. Washington, 126 Nev. 578, 589, 245 P.3d 1190, 1197 (2010) (denial of a timely reconsideration motion may be reviewed, on appeal from the judgment, for abuse of discretion). To the extent appellant challenged the reconsideration denial and his therapist-records request on other grounds, he did not challenge the district court's rationale - failure to establish a legal basis for reconsideration and raising new claims improperly in a reconsideration motion - and thus waived those challenges. See Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (issues not raised on appeal are deemed waived).

In plain language

Eli Pederson and Krystina Jeter have two minor children. In 2017, Krystina began custody proceedings alleging that Eli violently attacked and assaulted her in front of the children. In September 2018, the district court awarded Krystina sole physical and legal custody, based on its analysis of the children's best interests and findings that Eli had been convicted - through a guilty plea - of attempted sexual assault against Krystina and child abuse or neglect against the children. Eli, who is incarcerated at Lovelock Correctional Center, did not appeal that 2018 order. In 2022, Eli filed a "Petition for an Order to Establish a Correspondence with Minor Children," saying he had not been allowed contact with the children since his incarceration and wanted to begin repairing the relationship through phone calls, gifts, and letters. He stated that he had completed parenting classes in prison and had grown physically, spiritually, and mentally. Krystina opposed, arguing that Eli had not shown enough of a change in circumstances to justify modifying custody, and pointing to the children's therapist and a recent psychological report indicating the children were still having problems with their father's actions. Instead of filing a reply brief, Eli submitted the matter for decision. The district court denied his motion, finding he had not set forth a sufficient basis to modify the prior custody order and had not shown that an evidentiary hearing - a court proceeding where witnesses testify and evidence is presented - was necessary. Eli then sought reconsideration, arguing among other things that ruling without giving him a chance to reply violated his due process rights, and asking the court to force the children's therapist to produce treatment records. The district court denied that motion too. On appeal, the Court of Appeals explained that when a parent asks to change a custody arrangement, the burden is on the parent making the request - not the other parent - to show a preliminary (prima facie) case for modification. Eli's argument that Krystina had also failed to make such a showing therefore missed the mark, and because he did not otherwise address the district court's conclusion that no evidentiary hearing was warranted, the court declined to consider that issue further. The court also noted that Eli's arguments did not address the district court's central finding: that there was insufficient evidence a modification would serve the children's best interest. His contention that his convictions had nothing to do with his biological children was, in the court's words, belied by the record and conflicted with express findings in the 2018 custody decree - which he never appealed and therefore could no longer challenge. As for the reconsideration motion, the court found no due process problem: under the local rule (WDGCR 12(4)), filing a reply brief is optional, and Eli chose to submit the matter for decision without one. Because Eli did not challenge the district court's stated reasons for denying reconsideration - that he failed to establish a legal basis for it and improperly raised new claims for the first time in that motion - the court deemed those challenges waived. The Court of Appeals affirmed both denials.