Rennels v. Rennels

Statutes cited

Key holdings

Practitioner summary

Standard of review. The court reviews custody decisions, including visitation schedules, for an abuse of discretion, Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 218, 226 (2009); Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996), and will not set aside factual findings supported by substantial evidence, Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). Purely legal questions are reviewed de novo, Waldman v. Maini, 124 Nev. 1121, 1128, 195 P.3d 850, 855 (2008), and the court held that whether a stipulated visitation order is final is a question of law subject to de novo review. Finality of the stipulated order. An order is final if it "disposes of the issues presented in the case...and leaves nothing for the future consideration of the court." Valley Bank of Nevada v. Ginsburg, 110 Nev. 440, 445, 874 P.2d 729, 733 (1994). Finality turns on what the order "actually does, not what it is called." Drawing on Montenegro v. Diaz, 27 P.3d 289 (Cal. 2001), the court explained that it is irrelevant whether the order results from a judicially approved stipulation or from litigation; the inquiry is whether the order fully resolved the issues between the parties. Citing Ingram v. Knippers, 72 P.3d 17, 22 (Okla. 2003), the court noted that a consent judgment receives the same preclusive treatment as a contested judgment, consistent with Nevada's res judicata-based changed-circumstances doctrine, Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004); Hopper v. Hopper, 113 Nev. 1138, 1143-44, 946 P.2d 171, 174-75 (1997); Mosley v. Figliuzzi, 113 Nev. 51, 58, 930 P.2d 1110, 1114 (1997). Here, the stipulation resolved "all pending issues," set specific visitation parameters, provided a mechanism for modification through the guardian ad litem and psychologist, contemplated mediation before any return to court, and led the parties to vacate the scheduled evidentiary hearing. The court concluded the stipulated visitation order was a final judgment precluding relitigation of Audrey's visitation rights on the same facts. (The court noted an exception, not at issue here, for previously unknown evidence of domestic violence, citing Castle.) The parental presumption. Under Troxel v. Granville, 530 U.S. 57, 68 (2000) (plurality opinion), "there is a presumption that fit parents act in the best interests of their children," and courts "must accord at least some special weight" to a fit parent's wishes. NRS 125C.050(4) codifies a rebuttable presumption against nonparental visitation once a parent has denied or unreasonably restricted visits, with NRS 125C.050(6) listing the threshold requirements to overcome it. The statute is silent on modification or termination of previously granted nonparent visitation. Extending Hudson v. Jones, 122 Nev. 708, 713, 138 P.3d 429, 432 (2006) - which held the parental presumption inapplicable to modification of court-ordered nonparent custody because applying it "would only 'weaken the substantial change requirement'" (quoting C.R.B. v. C.C., 959 P.2d 375, 380 (Alaska 1998)) - the court held that once a nonparent obtains visitation through court order or judicial approval, the nonparent has overcome the parental presumption, and the presumption no longer controls a parent's request to modify or terminate. The court also rejected any distinction between grandparents and other nonparents, noting that under NRS 125C.050(2) Nevada does not distinguish grandparents from other nonparents. In a footnote, the court observed that other jurisdictions generally agree, citing Albert v. Ramirez, 613 S.E.2d 865 (Va. Ct. App. 2005), Deem v. Lobato, 96 P.3d 1186 (N.M. Ct. App. 2004), Ingram v. Knippers, and In Interest of Ferguson, 927 S.W.2d 766 (Tex. App. 1996). The Ellis test. The court adopted the two-prong Ellis test for modifying or terminating judicially approved nonparent visitation: "modification of primary physical custody is warranted only when (1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child's best interest is served by the modification." 123 Nev. at 150, 161 P.3d at 242. The district court is to evaluate both prongs without regard to the parental preference. The changed-circumstances prong is grounded in res judicata principles (Ellis; Castle; Mosley), and the court cautioned that hostility between parent and nonparent is, by itself, insufficient, since some animosity is inherent whenever visitation must be litigated. See Mosley, 113 Nev. at 58, 930 P.2d at 1114; Poppe v. Ruocco, 869 N.Y.S.2d 767, 773 (Fam. Ct. 2008). The best-interest prong follows the statutory command that "the sole consideration of the court is the best interest of the child," Ellis, 123 Nev. at 151-52, 161 P.3d at 243 (quoting NRS 125.480(1)); NRS 125A.045(1), (2), with courts considering the NRS 125.480(4) factors and any other relevant considerations, and treating custodial stability as a significant concern. The court also noted, per NRS 125A.045, that child custody determinations include visitation and modifications of visitation. Application and disposition. Neither the parties nor the district court addressed changed circumstances before termination; the district court instead deferred to the parental presumption under Troxel and stated only that "acrimony between the parties...remains and rather than diminish it appears said acrimony has increased." The Supreme Court held such acrimony alone insufficient, reversed the termination order, and remanded. The stipulated visitation order remains in full force and effect until modified or terminated consistently with the opinion, and the district court must appoint a new guardian ad litem before evaluating whether Audrey's supervised visitation should be modified under the stipulated order or terminated under the two-prong test.

In plain language

This case is about whether parents can undo a court-approved visitation arrangement with a grandparent simply because they are the parents. After Roger Rennels divorced in 2001, he and his daughter Martina lived for five months with his mother, Audrey Rennels, in northern California, and Martina and Audrey developed a close relationship that continued after Roger and Martina moved away. According to Audrey, Roger stopped allowing Martina to see her in June 2004, so Audrey went to court under NRS 125C.050, a Nevada statute that lets a nonparent ask for visitation rights with a child. Before the court could hold an evidentiary hearing, Audrey and Roger settled. They signed a stipulation - a formal written agreement - stating that "all pending issues" between them were resolved, and the court entered an order adopting it. Under that order, Audrey received four supervised visits per year, a guardian ad litem (a person appointed to represent the child's interests) was appointed, and a psychologist would counsel the family. If the guardian ad litem and the psychologist concluded supervision was no longer needed, Roger agreed to abide by that determination. The parties followed this arrangement until 2008, when the psychologist, Dr. John Paglini, recommended unsupervised visits and Roger refused. Audrey asked the court to enforce the order; Roger and his wife Jennifer (who had adopted Martina in 2006) countered by asking the court to end Audrey's visitation entirely, relying on Troxel v. Granville, a U.S. Supreme Court decision recognizing that fit parents are presumed to act in their children's best interests. The district court sided with the parents and terminated Audrey's visitation. The Nevada Supreme Court reversed. It held, first, that the stipulated visitation order was a final judgment - meaning it resolved the dispute and could not simply be relitigated on the same facts. Second, the court held that while the parental presumption applies when a nonparent first seeks visitation, it no longer controls once a court has approved a visitation arrangement. At that point, a parent who wants to change or end the arrangement must satisfy the same two-part test that applies when parents seek to modify custody between themselves: show (1) a substantial change in circumstances affecting the child's welfare, and (2) that the change serves the child's best interest. Because neither the parents nor the district court identified any substantial change in circumstances - the court pointed only to increased "acrimony" between the parties, which the Supreme Court said is not enough by itself - the termination order was reversed. The stipulated visitation order remains in effect, and on remand the district court must appoint a new guardian ad litem before deciding whether Audrey's visitation should be modified or terminated under the new test.