PERALTA VS. TALLEY (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the child support award under a mixed standard. Matters of custody and support rest in the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion, with abuse occurring when "no reasonable judge could reach a similar conclusion under the same circumstances." Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1227 (2004); Leavitt v. Siems, 130 Nev. 503, 509, 330 P.3d 1, 5 (2014). The court conducts de novo review of the district court's conclusions of law. Blaich v. Blaich, 114 Nev. 1446, 1447-48, 971 P.2d 822, 823 (1998). The court emphasized that the Legislature has limited district court discretion in child support. Anastassatos v. Anastassatos, 112 Nev. 317, 320, 913 P.2d 652, 654 (1996). Under NRS 125B.080, a district court "shall apply the guidelines" to determine or change required child support. Those guidelines are promulgated under NAC Chapter 425, adopted by the Administrator of the Division of Welfare and Supportive Services pursuant to NRS 425.620. See Matkulak v. Davis, 138 Nev. 647, 649, 516 P.3d 667, 670 (2022); NRS 125B.145(2)(b). Applying the framework, the court first addressed custody status. Under NAC 425.115(2), a party with primary physical custody is deemed the obligee and the other party the obligor. Because Peralta undisputedly held sole physical custody, she was properly the obligee and Talley the obligor. The court then turned to the obligor's monthly gross income. Under NAC 425.120(1)(b), a district court must consider "all financial or other information relevant to the earning capacity of the obligor." NAC 425.025(1)(i) provides that "[g]ross income' includes, without limitation[,]" the obligor's "[m]ilitary allowances and veterans benefits," and the court noted that no form of military housing allowance is expressly exempted under NAC 425.025. The district court had calculated Talley's gross income at $3,066, expressly excluding the approximately $2,407.25 per month BAH, based on Talley's representation - posed as a question by the court and answered in the affirmative - that the BAH was housing and not income. The Court of Appeals held that representation was erroneous and that the exclusion was "not supported by statute or legal principles." The court held that the district court erred by failing to apply the plain text of the administrative code, and that the BAH contribution must be considered when determining child support under NAC Chapter 425, because the controlling provision requires inclusion, without limitation, of military benefits and allowances. See NAC 425.025(1)(i). On the arrearages issue, the court explained that arrearages refer to past-due payments a support obligor has failed to make. See NRS 425.560; NRS 125B.140(1)(a); Arrear and In Arrears, Black's Law Dictionary (12th ed. 2024). Such arrearages may be collected through mechanisms such as wage garnishment and income withholding. See NRS 31A.025. The court reasoned that although Talley will owe a monetary sum upon recalculation, that amount has not yet been determined and thus no arrearage yet exists. It left the issue to the district court as factfinder, citing Ryan's Express Transp. Servs., Inc. v. Amador Stage Lines, Inc., 128 Nev. 289, 299, 279 P.3d 166, 172 (2012), for the proposition that an appellate court is not particularly well-suited to make factual determinations in the first instance. The court reversed the amended decree as to the child support award and remanded for proceedings consistent with the order, leaving the balance of the amended decree in place.

In plain language

Lyka Grace Andres Peralta and Chyron Lee Talley married in Utah in December 2021, had a child together, and separated in October 2023 while Peralta was pregnant. Talley filed for divorce in November 2023. After their child, referred to as C.P., was born, the parties resolved most of their disputes through mediation, and Talley agreed that Peralta would have sole physical custody of the child. One issue remained: how much child support Talley would pay. At a July 2024 hearing, the district court calculated Talley's income but left out about $2,407.25 per month that the military pays him as a "basic allowance for housing," or BAH. During the hearing, Peralta noted that Talley appeared to earn more than the figure the court was using. The court and Talley discussed the BAH, and Talley told the court that the BAH was a housing benefit that he does not receive directly as income each month. The court accepted that explanation and used Talley's base pay of $3,066 to calculate child support, arriving at an award of $490 per month. The divorce decree and an amended decree both reflected that amount. Peralta appealed, arguing the court should have counted the BAH as part of Talley's income. The Court of Appeals agreed. It explained that Nevada's child support rules, found in the administrative code, specifically say that "gross income" includes military allowances, without limitation, and that no military housing allowance is exempted. Because the BAH is a military allowance, the court held it should have been included when figuring Talley's income. The Court of Appeals reversed the part of the decree dealing with child support and sent the case back to the district court to recalculate the award with the BAH included. The rest of the divorce decree stays in place. Peralta also asked the court to determine "arrearages" - past-due child support payments. The Court of Appeals declined to do that itself, explaining that while Talley will owe some additional amount once the support is recalculated, no past-due amount yet exists to be called an arrearage. The court left that determination to the district court, which is the factfinder.