PERREIRA VS. EISENBERG (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's child custody order for abuse of discretion. Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 284 (Ct. App. 2023). Review focuses on whether the district court "reached its conclusions for the appropriate [legal] reasons" and whether its factual findings were "supported by substantial evidence." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007); see also Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993). Deference is not owed to findings "so conclusory they may mask legal error." Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). The court reiterated that in making a custody determination the district court's sole consideration is the best interest of the child, NRS 125C.0035(1); Davis, 131 Nev. at 451, 352 P.3d at 1143, and that this remains true even in the context of default judgments, Dagher v. Dagher, 103 Nev. 26, 28, 731 P.2d 1329, 1330 (1987). The district court must consider and set forth specific findings concerning the best-interest factors delineated in NRS 125C.0035(4)(a)-(l). Davis, 131 Nev. at 451, 352 P.3d at 1143; see also NRS 125C.001. On the motion to vacate, the court noted the wide discretion afforded under NRCP 60(b), Rodriguez v. Fiesta Palms, LLC, 134 Nev. 654, 656, 28 P.3d 255, 257 (2018), and that orders refusing to set aside default judgments are normally reviewed only for abuse of discretion, Dagher, 103 Nev. at 28, 731 P.2d at 1330. The court emphasized that "the judicial policy favoring decision on the merits is heightened in domestic relations cases," particularly where child custody is at issue. Id.; accord Price v. Dunn, 106 Nev. 100, 105, 787 P.2d 785, 788 (1990). Applying this framework, the court held that the district court abused its discretion in denying the motion to vacate the default judgment because the order failed to make the necessary findings when awarding sole legal and sole physical custody to Samantha. See NRCP 60(b)(6); Davis, 131 Nev. at 451, 352 P.3d at 1143 (requiring "express findings as to the best interest of the child in custody and visitation matters"); Roe, 139 Nev., Adv. Op. 21, 535 P.3d at 288. The district court resolved custody based on the default following Samantha's testimony and a prove-up hearing without analyzing or even mentioning the best-interest factors in NRS 125C.0035(4), and it failed to apply the analysis in Roe, 139 Nev., Adv. Op. 21, 535 P.3d at 281. Under Roe, when entering an order for sole physical custody, the district court must "first find either that the noncustodial parent is unfit for the child to reside with or make specific findings and provide an adequate explanation as to the reason primary physical custody is not in the best interest of the child." Regarding the preliminary injunction, the court affirmed the denial because Eric provided no argument regarding that decision and thus failed to demonstrate entitlement to relief. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 180 P.3d 1280, 1288 n.38 (2006). The court also addressed child support in a footnote, observing that the district court did not rule on the issue other than to state it would be handled by the district attorney's office and would be retroactive to May 2019. Because the district court may not defer the calculation of child support to another entity, see NRS 125B.080(1), the district court must make a determination regarding child support amounts on remand. The court noted that Eric's post-decree motion to modify child custody was not resolved below and remains pending, so his arguments regarding that motion were not properly before the court on appeal. Pending further proceedings on remand, the court left in place the custody arrangement set forth in the custody decree, subject to modification by the district court. See Davis, 131 Nev. at 455, 352 P.3d at 1146.

In plain language

Eric and Samantha were never married but have a child together. Eric went to court asking for primary physical custody and child support. After some back-and-forth motions, the court scheduled a calendar call and an evidentiary hearing to decide custody, and notified both parties. Eric did not show up to the calendar call. The court's minutes reflect that the judge said the evidentiary hearing would still happen, and if Eric again failed to appear, the court would strike his complaint and enter a custody order for Samantha. Eric did not appear at the evidentiary hearing. As a result, the court struck his complaint, entered a default against him (a default is a judgment entered against a party who fails to participate), and — after hearing testimony from Samantha in what the court called a "prove-up hearing" — awarded Samantha sole legal and sole physical custody. The decree also said child support would be handled by the district attorney's office and would be retroactive to May 2019. After the decree, Eric filed several motions, including one asking the court to vacate (cancel) the custody decree and one seeking a preliminary injunction. The court denied both, and Eric appealed. On appeal, the Court of Appeals focused on whether the district court properly explained its custody decision. Under Nevada law, when deciding custody, a court's only consideration is what is in the best interest of the child, and it must make specific written findings about that. The Court of Appeals concluded that the district court did not make these required findings — it decided custody based on the default without analyzing or even mentioning the best-interest factors, and without doing the additional analysis Nevada law requires before awarding sole physical custody. Because of this, the appellate court reversed the denial of Eric's motion to vacate and sent the case back for the district court to redo the custody determination with proper findings. The appellate court also reversed the award of attorney fees and costs to Samantha, since that award was tied to the custody decision. The court affirmed one part of the lower court's rulings: the denial of Eric's motion for a preliminary injunction. Eric provided no argument supporting that part of his appeal, so the court did not disturb it. The appellate court also noted that the district court had improperly deferred the child support calculation to the district attorney's office. Under Nevada law, the court itself must determine child support, so on remand it must make that determination. In the meantime, the existing custody arrangement stays in place, subject to change by the district court.