PEREZ VS. HAYWOOD

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's child support order for abuse of discretion, citing Hargrove v. Ward, 138 Nev., Adv. Op. 14, 506 P.3d 329, 331 (2022), and noting that a court abuses its discretion if "no reasonable judge could reach a similar conclusion under the same circumstances," Leavitt v. Siems, 130 Nev. 503, 509, 330 P.3d 1, 5 (2014). The court further noted that a district court may disregard a hearing master's recommendation only when "the findings are based upon material errors in the proceedings or a mistake in law; or are unsupported by any substantial evidence; or are against the clear weight of the evidence," Russell v. Thompson, 96 Nev. 830, 834 n.2, 619 P.2d 537, 539 n.2 (1980). On the governing statute, the court explained that under NRS 125B.030, district courts have discretion to award child support arrears for the "reasonable portion of the cost of care, support, education, and maintenance provided by the physical custodian," but that "[i]n the absence of a court order for the support of a child, the parent who has physical custody may recover not more than 4 years' support furnished before the bringing of the action to establish an obligation for the support of the child." Bernadette conceded the statute affords discretion but argued that discretion is not unlimited. Regarding DAFS's participation, DAFS initially filed a notice of appearance indicating it represented Cornell, later corrected that error, and was removed as counsel but remained for notice purposes. The court declined to consider DAFS's answering brief because DAFS does not represent any party to the appeal and its arguments exceeded the authority provided under NRS 125B.150 to the extent they opposed Bernadette's efforts to obtain arrearages and medical expenses. The court relied on Hedlund v. Hedlund, 111 Nev. 325, 326-27, 890 P.2d 790, 791 (1995) (holding district attorneys were not allowed to exceed the authority under NRS 125B.150 and that DAFS does not represent the parent or child in child support proceedings), and quoted NRS 125B.150(1). The court further held, in footnote, that DAFS exceeded its authority below when it repeatedly opposed Bernadette's requests, and directed that on remand the district court shall only consider DAFS's filings to the extent DAFS acts within the confines of NRS 125B.150. The court then treated Cornell's failure to file an answering brief—after being instructed to do so within 14 days—as a confession of error under NRAP 31(d)(2), citing Ozawa v. Vision Airlines, Inc., 125 Nev. 556, 563, 216 P.3d 788, 793 (2009). Independent of the confession of error, the court concluded the hearing master's report and the district court's order were unsupported by substantial evidence. Although Bernadette proffered no documentary evidence at the hearing, the hearing master received evidence through unopposed and uncontested testimony regarding Cornell's failure to pay support before the 2017 consent order and his annual income for 2013–2016. The court cited In re DISH Network Derivative Litig., 133 Nev. 438, 445 n.3, 401 P.3d 1081, 1089 n.3 (2017), for the proposition that "evidence need not be in a particular format to qualify as evidence—testimony is evidence whether it is given in court or a deposition." The court observed that the hearing master and district court took no notice of Cornell's concession that he did not pay support, his failure to oppose Bernadette's filings, or his failure to provide a complete income picture, and instead appeared to give great weight to DAFS's arguments. Having received income evidence, the hearing master failed to fully consider awarding constructive arrears or even the statutory minimum, see NRS 125B.080(4) (2001), or directing further discovery, which the court found went against the weight of the evidence, citing Russell. The court noted that NRS 125B.080 was amended in 2017, effective February 1, 2020, and that because the constructive arrears accrued before those amendments became effective, it cited the prior version of the statute. The court reversed and remanded with instructions to remand to the hearing master for a new hearing to determine whether four years of retroactive child support and payment of identified medical expenses is warranted.

In plain language

Bernadette Perez and Cornell Haywood were never married but have one child together, born in 2006. In 2011, Bernadette and the child moved to Texas, and Cornell has had limited contact with the child since. In 2017, Bernadette—with help from the Clark County District Attorney Family Support Division (DAFS), a government office that assists with child support—started a case seeking child support arrears (past-due support) for part of January 2017. The district court entered a consent order setting Cornell's monthly obligation at $462 and requiring him to pay $1,923 in arrears for January through April 2017. Bernadette did not sign that order and says she was never served with the filed copy. She later learned the order awarded only four months of arrears, rather than the maximum of four years that state law allows. In 2019, Bernadette hired a lawyer and asked the court either to modify the 2017 order or to enter a new judgment, seeking constructive arrears (past support the court can order for a period before the case was filed) going back four years. Cornell did not oppose her motion. DAFS, however, appeared and recommended denying it, saying Cornell had a right to rely on the earlier settled arrears. After objections and back-and-forth, the district court sent the matter to the hearing master for an evidentiary hearing on whether to award arrears for February 1, 2013 through December 31, 2016—the four-year window before Bernadette's 2017 support request. Before that hearing, the hearing master told Cornell to provide proof of his 2013–2016 income and told Bernadette to provide a schedule of arrears and medical expenses. Cornell did not object to Bernadette's proposed schedule and gave DAFS some tax documents but filed nothing before the hearing. At the hearing, both parties testified that Cornell provided no support for the child from 2013 to 2016. Cornell testified about his earnings: roughly $14,000 as an entertainer in 2013, about $10,855 in 2014, and around $16 an hour after starting a job in 2015 that continued into 2016. Cornell offered no argument against Bernadette's request. Neither side formally admitted the tax returns into evidence, and Bernadette submitted no additional documents. The hearing master declined to order more arrears, reasoning that Bernadette had failed to present evidence of Cornell's income or support for her medical-expense and insurance requests. Bernadette objected, and the district court affirmed. She then appealed. On appeal, the Court of Appeals reversed for several reasons. First, it declined to consider the brief filed by DAFS because DAFS did not represent any party to the appeal, and its arguments exceeded the authority the law gives it. Second, the court noted that Cornell never filed an answering brief despite being ordered to, and the court treated that failure as a confession of error. Third—and independently—the court concluded that the hearing master's report and the district court's order were not supported by substantial evidence, because the hearing master had actually received evidence (live testimony counts as evidence) about Cornell's failure to pay support and about his income, yet failed to fully consider awarding arrears or even the statutory minimum, or directing more discovery. The court sent the case back for a new hearing to determine whether four years of retroactive child support and payment of identified medical expenses is warranted.