PHILLIPS VS. PHILLIPS

Statutes cited

Key holdings

Practitioner summary

The court reviewed the custody order for abuse of discretion under Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996), and reviewed factual findings for substantial evidence under Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). Constitutional challenges were reviewed de novo per Jackson v. State, 128 Nev. 598, 603, 291 P.3d 1274, 1277 (2012). The judge's recusal decision was reviewed for clear abuse of discretion under Canarelli v. Eighth Judicial Dist. Court, 138 Nev., Adv. Op. 12 (2022). Attorney-fee awards were reviewed for abuse of discretion per Blanco v. Blanco, 129 Nev. 723, 732, 311 P.3d 1170, 1176 (2013). On the NRS 125C.0035(5) domestic-violence rebuttable presumption, the court held that the district court properly took judicial notice of the prior TPO action under NRS 47.150(1) and NRS 47.130(2), invoking the closely-related-cases exception described in Mack v. Estate of Mack, 125 Nev. 80, 91-92, 206 P.3d 98, 106 (2009). The court emphasized that NRS 125A.355(2) and NRS 125A.385 actually required consideration of the prior proceeding. Procedural due process was satisfied under J.D. Constr., Inc. v. IBEX Int'l Grp., 126 Nev. 366, 376, 240 P.3d 1033, 1040 (2010). Substantive collateral attacks on the expired TPO were unavailable per In re Temp. Custody of Five Minor Children, 105 Nev. 441, 444, 777 P.2d 901, 902 (1989), and claim preclusion did not bar the domestic-violence finding because custody was not at issue in the TPO action under Five Star Cap. Corp. v. Ruby, 124 Nev. 1048, 1052, 194 P.3d 709, 711 (2008), holding modified by Weddell v. Sharp, 131 Nev. 233, 350 P.3d 80 (2015). Substantial evidence supported the domestic-violence finding, including TPO-action evidence, school records, and Amber's testimony, which the district court found credible. Citing Castle v. Simmons, 120 Nev. 98, 102-03, 86 P.3d 1042, 1045-46 (2004), the court declined to reweigh credibility and held the totality-of-evidence analysis adequate. Arguments under NRS 432B.157 were not addressed because no Chapter 432B proceedings were involved. On SCR 251's six-month deadline for resolving contested custody issues, the court held the district court made the required findings of extraordinary circumstances justifying extensions, including Todd's four continuance requests, failed disqualification motions, and pandemic-related continuances. The court rejected Todd's constitutional challenge to NRS 125C.0035 under Rico v. Rodriguez, 121 Nev. 695, 704, 120 P.3d 812, 818 (2005), reaffirming that between two fit parents, fundamental rights are equal and best-interest analysis governs without strict scrutiny. The due-process challenge to the divorce complaint was rejected under Wiese v. Granata, 110 Nev. 1410, 1412, 887 P.2d 744, 745 (1994), because custody rights were affected by later orders, not the complaint. The NRCP 12(b)(5) ruling was affirmed under Edgar v. Wagner, 101 Nev. 226, 228, 699 P.2d 110, 112 (1985). The right-to-jury-trial argument was rejected based on In re Parental Rights as to M.F., 132 Nev. 209, 215, 371 P.3d 995, 999-1000 (2016), and Barelli v. Barelli, 113 Nev. 873, 879, 944 P.2d 246, 249 (1997). Double-jeopardy claims failed under Hudson v. United States, 522 U.S. 93, 99 (1997), and statute-of-limitations arguments failed under NRS 125C.230. On recusal, the court applied NCJC Rule 1.2 and NCJC Rule 2.11(A), noting the duty to sit under NCJC Rule 2.7 and Millen v. Eighth Judicial Dist. Court, 122 Nev. 1245, 1253, 148 P.3d 694, 699 (2006). Most arguments failed because intra-proceeding rulings rarely constitute "deep-seated favoritism or antagonism," citing Liteky v. United States, 510 U.S. 540, 555 (1994), through Canarelli. The party-created federal lawsuit could not generate disqualifying grounds, citing City of Las Vegas Downtown Redevelopment Agency v. Hecht, 113 Nev. 644, 649, 940 P.2d 134, 138 (1997). The TPO-falsification claim was unpreserved under Truesdell v. State, 129 Nev. 194, 200, 304 P.3d 396, 400 (2013). Campaign-contribution arguments failed under Ivey v. Eighth Judicial Dist. Court, 129 Nev. 154, 162, 299 P.3d 354, 359 (2013), and In re Petition to Recall Dunleavy, 104 Nev. 784, 790, 769 P.2d 1271, 1275 (1988), because contributions within statutory limits do not require disqualification, and Todd did not develop the due-process recusal factors from Ivey, 129 Nev. at 159, 299 P.3d at 357. The transcript-deficient claim regarding the judge's alleged advice to Amber failed under NRAP 3E(c)(2)(A). On attorney fees, the court relied on NRS 125.150(3) as the statutory basis required by Frantz v. Johnson, 116 Nev. 455, 471, 999 P.2d 351, 361 (2000); applied the disparity-of-income consideration under Miller v. Wilfong, 121 Nev. 619, 623, 119 P.3d 727, 730 (2005); and analyzed the Brunzell factors from Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 455 P.2d 31 (1969). The court declined to reach NRS 18.010(2)(b) given the alternative statutory basis.

In plain language

This case arises from a divorce in which the parents disputed custody of their minor child. After an evidentiary hearing, the district court gave the mother, Amber, sole legal custody and primary physical custody, and ordered the father, Todd, to pay some of her attorney fees. Todd appealed both decisions. Todd's main objection to the custody ruling was that the trial judge looked at materials from an earlier temporary protection order case (a short-term restraining order proceeding) to find that Todd had committed acts of domestic violence. Under Nevada law, when a court finds by clear and convincing evidence that a parent committed domestic violence, there is a "rebuttable presumption" - a starting assumption the parent can try to disprove - that giving that parent custody is not in the child's best interest. The Supreme Court held that the trial judge was permitted to take "judicial notice" of the earlier TPO records (a process where a court accepts certain reliable facts without requiring formal evidence to re-prove them) because the cases were closely related and Nevada law actually requires courts to consider other proceedings affecting custody. The court also pointed to additional evidence supporting the domestic-violence finding, including Amber being fired from a job over safety concerns related to Todd, two California restraining orders against Todd, a letter from the child's school describing Todd's hostile behavior and alleged threats to shoot Amber and the child, and Amber's testimony that the trial judge found credible. Todd also argued the case took too long under a Nevada Supreme Court rule requiring custody disputes to be resolved within six months. The court rejected this because the rule allows extensions in extraordinary circumstances, and the trial judge documented reasons - including Todd's own four requests to continue the trial, his unsuccessful motions to disqualify the judge, and the COVID-19 pandemic. The court rejected Todd's various constitutional arguments. Because both fit parents have equal rights to their child, the only question is the child's best interest, so strict scrutiny does not apply. The divorce complaint itself did not violate due process because it was the later court orders that affected his custody rights. There is no right to a jury trial in family-court proceedings such as divorce. Double jeopardy and statute of limitations do not apply because no criminal charges were involved. Todd argued the trial judge should have recused himself for a number of reasons - including events during the proceedings, the fact that Todd had sued the judge in federal court, allegations the judge falsified TPO documents, the fact that Amber's lawyer had contributed to the judge's campaign, and a claim the judge had told Amber to "file a motion." The Supreme Court rejected each, noting that judges generally cannot be forced off a case based on things that happened during the case itself, parties cannot manufacture grounds for recusal by suing the judge, lawful campaign contributions within statutory limits do not require recusal, and Todd had not provided trial transcripts that would let the court evaluate the alleged comment to Amber. On attorney fees, the Supreme Court held that the trial judge had a proper statutory basis (the divorce statute permitting fee awards), considered the income disparity between the parties, and walked through the factors Nevada courts use to assess whether requested fees are reasonable. The trial court actually reduced the fees requested by nearly half. The Supreme Court found no abuse of discretion and affirmed both orders.