PINTO VS. GUARDADO-PINTO (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

This is an unpublished order of affirmance from the Court of Appeals reviewing a divorce decree and a child custody order out of the Eighth Judicial District Court, Family Court Division. **Standard of review (property).** The court reviews the characterization and disposition of property in divorce proceedings for abuse of discretion. Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004); Kogod v. Cioffi-Kogod, 135 Nev. 64, 75, 439 P.3d 397, 406 (2019). An abuse of discretion occurs when the decision is clearly erroneous or not supported by substantial evidence. Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018). Substantial evidence is evidence that "a sensible person may accept as adequate to sustain a judgment." Williams, 120 Nev. at 556, 97 P.3d at 1129. **Community property framework.** Under NRS 123.220(1), all property acquired after marriage by either spouse is community property unless a written agreement specifies otherwise; property acquired after marriage is presumed community property, rebuttable by clear and convincing evidence. Pryor v. Pryor, 103 Nev. 148, 150, 734 P.2d 718, 719 (1987). **Colour Magic property.** A spouse-to-spouse conveyance of real property creates a presumption of a gift. Kerley v. Kerley, 112 Nev. 36, 37, 910 P.2d 279, 280 (1996). Vanessa rebutted the community-property presumption with Francis's quitclaim deed, shifting to Francis the burden to rebut the resulting separate-property (gift) presumption by clear and convincing evidence. The district court credited Francis's testimony about the deed, his lack of English comprehension, and his intent to maintain his interest. Because appellate courts do not reweigh witness credibility, Castle v. Simmons, 120 Nev. 98, 103, 86 P.3d 1042, 1046 (2004), the court held the property remained community property. Vanessa's contention that she paid the mortgage and utilities with separate funds failed for lack of a written agreement under NRS 123.220(1). Her argument that imputation was impermissible because a third party (her mother) now held title was unsupported by authority and thus not considered. Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). **Kensington property.** The court found the Kensington property community property because purchased during the marriage with community funds. NRS 123.220(1); Pryor. NRS 125.150(1)(b) requires an equal disposition of community property if practicable. Because the Colour Magic value was imputed to Vanessa (who resided there), awarding Francis the Kensington property to equalize net community value was not clearly erroneous, and Vanessa did not show any error affected her substantial rights. Cf. NRCP 61. **Earnings.** Vanessa failed to rebut the community-property presumption by clear and convincing evidence. Pryor; NRS 123.220(1). Maintaining separate bank accounts, without a written agreement, does not overcome NRS 123.220(1). **Honduras property/funds.** The district court's determination rested on credibility; no corroborating evidence definitively established a $40,000 transfer or Francis's ownership of a Honduran home. The court declined to reweigh credibility. Castle, 120 Nev. at 103, 86 P.3d at 1046. **Student loan debt.** The party claiming a student loan is community debt bears the burden to prove the debt existed and was incurred for the benefit of the community. Barry v. Lindner, 119 Nev. 661, 670-71, 81 P.3d 537, 543 (2003), overruled on other grounds by LaBarbera v. Wynn Las Vegas, LLC, 134 Nev. 393, 395, 422 P.3d 138, 140 (2018). Vanessa did not prove the loans existed or that her degree benefited the community; where the record was incomplete, the court presumed the missing portions supported the district court's decision. Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007). **Jewelry.** Factual findings are left undisturbed unless clearly erroneous or unsupported by substantial evidence. Wells Fargo Bank, N.A. v. Radecki, 134 Nev. 619, 621, 426 P.3d 593, 596 (2018). The only evidence was competing testimony; the credibility finding was not reweighed. Castle. **Credibility of Francis (Lodge Pole abandonment).** Credibility rests within the trier of fact's sound discretion and is not reweighed on appeal. Castle. **Standard of review (custody).** Child custody decisions are reviewed for abuse of discretion. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). A district court abuses its discretion when its decision is clearly erroneous. Bautista, 134 Nev. at 336, 419 P.3d at 159. Custody determinations supported by substantial evidence will not be set aside. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). **Best interest analysis.** The court must consider the best interest of the child under NRS 125C.0035(1), analyzing the factors enumerated in NRS 125C.0035(4). The district court found four factors inapplicable, seven neutral, one favoring Francis, and none favoring Vanessa. The children (both under nine) were found "not of sufficient age and capacity to form an intelligent preference as to physical custody"; Vanessa's contrary argument was conclusory and unsupported by authority. Edwards. The district court's findings on high conflict and poor communication were supported by substantial evidence. Ellis. **Therapy records.** Evidentiary decisions are reviewed for abuse of discretion. Abid v. Abid, 133 Nev. 770, 772, 406 P.3d 476, 478 (2017). The records were excluded because the proper authenticating witness was not called. Errors in excluding evidence are reviewed for effect on substantial rights. NRS 47.040(1)(b); Hallmark v. Eldridge, 124 Nev. 492, 505, 189 P.3d 646, 654 (2008). Vanessa did not argue her substantial rights were affected, so no reversible error occurred. **Childcare inquiry.** Not raised below and therefore waived. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981); see also Edwards; NRAP 10(A). **Week on/week off schedule.** The court considered the children's emotional, developmental, and physical needs and found the schedule would minimize exchanges and permit parallel parenting given the parties' conflict and inability to co-parent. Substantial evidence supported this. Ellis; Bautista.

In plain language

Vanessa Pinto and Francis Guardado-Pinto married in February 2007 and had two minor children who were 8 and 5 years old at the time of trial. During the marriage they kept separate bank accounts and acquired three homes: a residence on Kensington Street (2010), a residence on Lodge Pole Court (2012), and a residence on Colour Magic Street (2015). When the marriage broke down, Francis filed for divorce and asked the court to divide the property and grant joint custody. Vanessa wanted sole custody and argued that certain property was hers alone. After a three-day trial, the family court divided the property and set up a custody arrangement. On appeal, Vanessa asked the Court of Appeals to overturn several of those decisions. The appeals court explained that it reviews these kinds of family-court rulings for "abuse of discretion" - meaning it will not overturn the trial judge unless the decision was clearly wrong or lacked adequate evidentiary support. The court also emphasized a rule that appears throughout the opinion: appellate courts do not re-weigh which witness was more believable, because that judgment belongs to the trial judge who heard the testimony. On the property questions, the court applied Nevada's rule that property acquired during a marriage is presumed to be "community property" (property belonging to both spouses) unless there is a written agreement saying otherwise. The Colour Magic home was a close call: Francis had signed a quitclaim deed (a document giving up his interest) to Vanessa, which normally creates a presumption that he gifted the property to her. But the trial judge believed Francis's testimony - including that he did not fully understand English and intended to keep his interest - and found he had overcome that presumption with strong evidence. The appeals court declined to second-guess that credibility call. Because Vanessa had transferred the Colour Magic home to her mother the day before Francis filed for divorce, and because she still lived there, the court assigned that property's value to her and awarded Francis the Kensington home to balance things out. The court also upheld the trial judge's findings that: the couple's earnings during the marriage were community property (Vanessa had no written agreement making her income separate); Vanessa did not prove Francis owned property in Honduras and that he sent $20,000 rather than $40,000 there; Vanessa's student loans were her own separate debt because she did not prove the loans existed or that her education benefited the marriage; and Vanessa did not prove Francis had possession of $20,000 in jewelry. Many of these conclusions rested on the trial judge's credibility findings and on the fact that Vanessa did not submit enough documents or legal authority to support her arguments. On custody, the court explained that Nevada law requires the family court to decide custody based on the "best interest of the child," weighing a list of statutory factors. The trial judge went through each factor and found joint physical custody with a "week on/week off" schedule was best. The judge found the children (both under nine) were too young to express an intelligent preference, that conflict between the parents was high, and that they could not communicate well about the children. The appeals court found these conclusions supported by the evidence. It also upheld the exclusion of one child's therapy records because the proper witness was not called to authenticate them, and it declined to consider several other arguments Vanessa raised without legal authority or that she had not raised in the trial court. Because none of Vanessa's arguments showed the trial court had abused its discretion, the Court of Appeals affirmed all of the rulings.