PLATA VS. GUTIERREZ (CHILD CUSTODY)

Statutes cited

Key holdings

• -A party seeking custody modification must satisfy both prongs of the Romano/Ellis test, and failure to demonstrate the best-interest prong is fatal to the modification request, rendering any error on the substantial-change prong harmless.
• -The rebuttable presumption against awarding physical custody under NRS 125C.0035(5) applies only when acts of domestic violence have been established by clear and convincing evidence, and the appellate court will not reweigh evidence or credibility determinations underlying the district court's domestic violence findings.
• -A district court's failure to acknowledge or make findings on a properly raised request to modify child support requires reversal and remand, because deference is not owed to legal error or to findings so conclusory they may mask legal error.
• -Before holding a party in contempt for failure to pay child support, the district court must determine that the party had the ability to comply with the child support order but failed to make an effort to do so, per Rodriguez v. Eighth Jud. Dist. Ct.
• -Issues not raised on appeal — here, a separate contempt finding regarding the refinance-or-sale order — are deemed forfeited.

Practitioner summary

Custody modification. The court of appeals reviewed the custody ruling for a clear abuse of discretion, quoting Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007), that district courts enjoy "broad discretionary powers to determine child custody matters," and affirming factual findings supported by substantial evidence, "which is evidence that a reasonable person may accept as adequate to sustain a judgment." Id. The sole consideration in custody determinations is the children's best interest, NRS 125C.0035(1); Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015), and the court presumes the district court properly exercised its discretion, Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). Legal questions are reviewed de novo. Rennels v. Rennels, 127 Nev. 564, 569, 257 P.3d 396, 399 (2011). Under Romano v. Romano, 138 Nev. 1, 5, 501 P.3d 980, 983 (2022), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev. 401, 404-05, 535 P.3d 1167, 1171 (2023), the movant must show "(1) there has been a substantial change in circumstances affecting the welfare of the child[ren], and (2) the child[ren]'s best interest is served by the modification," and bears the burden on both prongs. Ellis, 123 Nev. at 150-51, 161 P.3d at 242-43. The district court's findings that factors under NRS 125C.0035(4)(c), (4)(e), (4)(g), and (4)(h) favored Gutierrez were supported by substantial evidence, including Plata's own testimony that he deviated from the decree at the children's request, took the children during Gutierrez's custodial time without notice or consent, and saw no harm in his noncompliance with court orders. The court of appeals cited Nance v. Ferraro, 134 Nev. 152, 153, 418 P.3d 679, 681 (Ct. App. 2018), for the proposition that district courts may review facts underpinning prior rulings in deciding whether modification serves the children's best interest. In a footnote, the court observed that the district court actually found the abuse-or-neglect factor, NRS 125C.0035(4)(j), in Plata's favor based on the July 2024 incident, while declining to make an abuse-or-neglect finding against Gutierrez because CPS did not remove the children, found Gutierrez a safe placement, and her criminal charges were dismissed. The court rejected Plata's contention that the July 2024 incident triggered the NRS 125C.0035(5) rebuttable presumption or should have swung the domestic violence factor, NRS 125C.0035(4)(k), in his favor. It cited Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009) ("credibility determinations and the weighing of evidence are left to the trier of fact"), and Soldo-Allesio v. Ferguson, 141 Nev., Adv. Op. 9, 565 P.3d 842, 848 (Ct. App. 2025) (NRS 125C.0035(5)'s presumption applies when domestic violence "has been established by clear and convincing evidence"). Substantial evidence — CPS's closure of the case, its findings that the incident was isolated and the children safe, and the dismissal of charges — supported the neutral finding. See Schwartz v. Schwartz, 126 Nev. 87, 91, 225 P.3d 1273, 1276 (2010) ("we will not substitute our judgment for that of the district court"); In re J.D.N., 128 Nev. 462, 477, 283 P.3d 842, 852 (2012); Roggen v. Roggen, 96 Nev. 687, 689, 615 P.2d 250, 251 (1980). Because failure on the best-interest prong is fatal, the court declined to reach the substantial-change prong; any error there was harmless. See Ellis, 123 Nev. at 150-51, 161 P.3d at 242-43; Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010); cf. NRCP 61. Child support. Reviewing for abuse of discretion, Romano, 138 Nev. at 7, 501 P.3d at 985, the court reversed because the district court's order incorrectly stated that Plata did not request modification of his child support obligation and included no findings on his hardship-based request, and it was unclear whether the court's credibility findings related to that request. Deference is not owed to legal error or to findings so conclusory they may mask legal error, Davis, 131 Nev. at 450, 352 P.3d at 1142, and "An appellate court is not particularly well-suited to make factual determinations in the first instance," Ryan's Express Transp. Servs., Inc. v. Amador Stage Lines, Inc., 128 Nev. 289, 299, 279 P.3d 166, 172 (2012). Contempt. Contempt orders are reviewed for abuse of discretion, Lewis v. Lewis, 132 Nev. 453, 456, 373 P.3d 878, 880 (2016), and although contempt orders are not independently appealable, the court has jurisdiction to review contempt findings included in an otherwise appealable order, Vaile v. Vaile, 133 Nev. 213, 217, 396 P.3d 791, 794-95 (2017). NRS 22.010(3) makes disobedience of a lawful court order contempt, punishable by fine under NRS 22.100(2). But before holding a party in contempt for failing to pay child support, the court must determine that the party "ha[d] the ability to comply with the child support order but failed to make an effort to do so." Rodriguez v. Eighth Jud. Dist. Ct., 120 Nev. 798, 811, 102 P.3d 41, 50 (2004). The district court made no ability-to-pay findings, and the court of appeals — bound by supreme court precedent, Eivazi v. Eivazi, 139 Nev. 408, 418 n.7, 537 P.3d 476, 487 n.7 (Ct. App. 2023) — reversed and remanded for the necessary findings, citing Davis and Bland v. Bland, No. 49197, 2008 WL 6099075, *4 (July 11, 2008). A separate contempt finding based on Plata's failure to refinance or sell his residence was not addressed on appeal and was deemed forfeited. See Palmieri v. Clark County, 131 Nev. 1028, 1033 n.2, 367 P.3d 442, 446 n.2 (Ct. App. 2015).

In plain language

Jose Adrian Plata and Alondra Holguin Gutierrez married in 2020, have three minor children, and divorced in 2024. In the divorce, Gutierrez received primary physical custody, and Plata was ordered to pay $1,126 per month in child support. After the divorce, Gutierrez filed motions asking the court to enforce the decree, alleging Plata was not paying child support or reimbursing her for the children's medical expenses. Meanwhile, Child Protective Services (CPS) looked into a July 2024 incident involving Gutierrez and the parties' youngest child. Gutierrez faced a criminal charge over the incident in February 2025, but the charge was dismissed after she completed a class. Based on that incident, Plata asked the district court to change custody. He also asked the court to lower his child support, saying he was in financial hardship and could not pay. After a hearing where both parents testified and submitted evidence, the district court refused to change custody, found Plata in contempt (meaning he was found to have disobeyed a court order) for not paying child support, and fined him. The Nevada Court of Appeals decided the appeal in three parts. First, it upheld the refusal to change custody. Under Nevada law, a parent seeking to change custody must show both a substantial change in circumstances and that the change would serve the children's best interest. The district court found several "best interest" factors favored Gutierrez — for example, that she allowed Plata extra parenting time while Plata took time unilaterally and testified he would violate court orders if the children asked, that Gutierrez met the children's needs, and that she provided stability. As to the July 2024 incident, the district court found the domestic violence factor neutral: CPS closed the case, found the incident isolated and the children safe with Gutierrez, and the criminal charge was dismissed. The appellate court explained that it cannot reweigh evidence or second-guess who the trial judge found believable, and that the record contained enough evidence to support the trial court's findings. Because the best-interest requirement was not met, the court did not need to decide whether Plata showed a substantial change in circumstances. Second, the appellate court reversed on child support. Plata had asked to modify his support obligation because of unemployment and the seasonal nature of his work, but the district court's order incorrectly stated that he never made that request and included no findings about it. The Court of Appeals sent that issue back for the district court to actually consider the request and make factual findings. Third, the appellate court reversed the contempt finding for nonpayment of child support. Under Nevada Supreme Court precedent, before a court can hold someone in contempt for not paying child support, it must find the person had the ability to pay but failed to make an effort to do so. The district court made no such findings here, so the Court of Appeals sent that issue back too. (Plata was also held in contempt for failing to refinance or sell his residence as ordered, but because he did not raise that issue on appeal, the court deemed any arguments about it forfeited.)