PHILLIPS VS. PHILLIPS (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

**Standard of review.** The court reviewed the child custody order for abuse of discretion, leaving factual findings undisturbed if supported by substantial evidence. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996); Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). Constitutional issues were reviewed de novo. Jackson v. State, 128 Nev. 598, 603, 291 P.3d 1274, 1277 (2012). Recusal decisions were reviewed for clear abuse of discretion. Canarelli v. Eighth Judicial Dist. Court, 138 Nev., Adv. Op. 12 (2022). Attorney fee awards were reviewed for abuse of discretion. Blanco v. Blanco, 129 Nev. 723, 732, 311 P.3d 1170, 1176 (2013). **NRS 125C.0035(5) domestic-violence presumption.** The district court applied the rebuttable presumption against awarding physical custody to a perpetrator of domestic violence after taking judicial notice of the 2018 TPO proceedings. The court approved this approach, noting NRS 47.150(1) (sua sponte judicial notice) and NRS 47.130(2) (criteria for judicial notice), and citing the closely-related-cases exception recognized in Mack v. Estate of Mack, 125 Nev. 80, 91-92, 206 P.3d 98, 106 (2009). The court further noted that NRS 125A.355(2) and NRS 125A.385 require examination of related proceedings before a custody hearing. Substantive challenges to the expired TPO were unavailable on appeal because no appeal lies from a temporary order subject to periodic mandatory review, 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, 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 (TPO record, school correspondence, Amber's credibility-credited testimony) supported the presumption's application under the totality-of-the-evidence approach articulated in Castle v. Simmons, 120 Nev. 98, 102-03, 86 P.3d 1042, 1045-46 (2004). The court noted that no transcripts were requested, citing NRAP 3E(c)(2)(A). Arguments under NRS 432B.157 were inapt because no Chapter 432B proceeding was involved. **SCR 251 timing.** Although SCR 251 generally requires resolution of contested custody issues within six months, the rule permits extensions for "[e]xtraordinary cases that present unforeseeable circumstances" with specific findings. The district court's findings - Todd's multiple continuance requests, repeated unsuccessful disqualification motions, and a March-October 2020 COVID-19 continuance - sufficed. **Constitutional challenges.** The court rejected a strict-scrutiny challenge to NRS 125C.0035, reaffirming that in disputes between two fit parents the constitutional right to care and custody is equal and best-interest is the governing standard. Rico v. Rodriguez, 121 Nev. 695, 704, 120 P.3d 812, 818 (2005). The due-process challenge to the divorce complaint failed because subsequent orders, not the complaint, affected custodial rights. Wiese v. Granata, 110 Nev. 1410, 1412, 887 P.2d 744, 745 (1994). The NRCP 12(b)(5) ruling was proper under Edgar v. Wagner, 101 Nev. 226, 228, 699 P.2d 110, 112 (1985). No jury trial right exists in family-division proceedings. In re Parental Rights as to M.F., 132 Nev. 209, 215, 371 P.3d 995, 999-1000 (2016); Barelli v. Barelli, 113 Nev. 873, 879, 944 P.2d 246, 249 (1997). Double jeopardy and statute-of-limitations theories were inapplicable absent criminal charges, Hudson v. United States, 522 U.S. 93, 99 (1997), and NRS 125C.230 imposes no time limit on consideration of domestic-violence evidence in custody determinations. **Recusal.** Applying NCJC Rule 1.2 (and cmt. 5) and NCJC Rule 2.11(A), and citing Canarelli's adoption of the extrajudicial-source rule from Liteky v. United States, 510 U.S. 540, 555 (1994), the court found no deep-seated favoritism or antagonism. Conduct created by Todd himself - including suing Judge Ochoa in federal court - could not support recusal. City of Las Vegas Downtown Redevelopment Agency v. Hecht, 113 Nev. 644, 649, 940 P.2d 134, 138 (1997). The alleged TPO falsification claim was unpreserved. Truesdell v. State, 129 Nev. 194, 200, 304 P.3d 396, 400 (2013). Campaign-contribution arguments failed because contributions within statutory limits cannot ground disqualification, Ivey v. Eighth Judicial Dist. Court, 129 Nev. 154, 162, 299 P.3d 354, 359 (2013); see also In re Petition to Recall Dunleavy, 104 Nev. 784, 790, 769 P.2d 1271, 1275 (1988); the court also rejected any due-process-based recusal claim under the Ivey factors. Todd did not challenge Chief Judge Bell's denials of disqualification motions. See NCJC Rule 2.7; Millen v. Eighth Judicial Dist. Court, 122 Nev. 1245, 1253, 148 P.3d 694, 699 (2006). **Attorney fees.** The award rested on a valid statutory basis, NRS 125.150(3); Frantz v. Johnson, 116 Nev. 455, 471, 999 P.2d 351, 361 (2000). The district court considered income disparity and Amber's Brunzell brief, see Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 455 P.2d 31 (1969), and the pro-bono-fee considerations of Miller v. Wilfong, 121 Nev. 619, 623, 119 P.3d 727, 730 (2005). The court analyzed each Brunzell factor, accounted for Todd's litigation conduct, and reduced the requested fees by nearly half. Because NRS 125.150(3) supplied the basis, the court did not address NRS 18.010(2)(b).

In plain language

This case involves a divorce and a fight over custody of the couple's minor child. After an evidentiary hearing, the district court gave the mother, Amber, sole legal and primary physical custody, and ordered the father, Todd, to pay some of her attorney fees. Todd appealed both rulings. The Nevada Supreme Court affirmed - meaning it left both rulings in place. A central issue was a Nevada law (NRS 125C.0035(5)) that creates a presumption against giving custody to a parent who has committed domestic violence. The district court had relied on findings from an earlier 2018 temporary protection order (TPO) case, plus testimony and school records, to conclude that Todd had engaged in acts of domestic violence. The school records included a letter from the school's lawyer warning security about Todd's hostile language and alleged threats to shoot Amber and the child. The Supreme Court held the district court was allowed to take "judicial notice" (officially recognize as established) of the related TPO proceedings and that there was substantial evidence supporting the domestic-violence finding. Todd also argued the case took too long under SCR 251, which generally requires custody issues to be resolved within six months. The Supreme Court explained that the rule allows extensions in extraordinary cases with appropriate findings, and pointed out that Todd himself had asked for several continuances and filed multiple unsuccessful motions to disqualify the judge, and that the COVID-19 pandemic also caused delay. Todd raised several constitutional arguments, including a claim that the custody decision should have been reviewed under "strict scrutiny" (the toughest legal test) and that he was entitled to a jury trial. The Supreme Court rejected these. It explained that when two fit parents fight over custody, both have equal constitutional rights, so courts decide based on the child's best interest. Nevada law does not provide for jury trials in family-court cases like divorce or custody. Todd also argued the trial judge should have stepped aside (recused himself) for several reasons, including that Amber's lawyer had contributed to the judge's election campaign and that Todd had sued the judge in federal court. The Supreme Court rejected these arguments, noting among other things that lawful campaign contributions within statutory limits do not by themselves require recusal, and that a litigant cannot manufacture grounds for recusal by suing the judge. On attorney fees, the court found that the district court had a proper statutory basis (NRS 125.150(3), allowing fees in divorce cases), considered the income disparity between the parties, analyzed the relevant fee factors from a case called Brunzell, and actually cut the requested fees by nearly half.