ROBERSON VS. ROBERSON (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court addressed two issues under different standards of review. On the decree-interpretation issue, the court reviewed the district court's interpretation of the divorce decree de novo, treating it as a question of law. Henson v. Henson, 130 Nev. 814, 818, 334 P.3d 933, 936 (2014). Settlement agreements in family law cases are enforceable as long as they are not unconscionable, illegal, or in violation of public policy, Mizrachi v. Mizrachi, 132 Nev. 666, 671, 385 P.3d 982, 985 (Ct. App. 2016), and such settlements are contracts subject to general contract principles, Grisham v. Grisham, 128 Nev. 679, 685, 289 P.3d 230, 234 (2012) (citing Mack v. Estate of Mack, 125 Nev. 80, 95, 206 P.3d 98, 108 (2009)). A settlement agreement requires mutual assent, Lehrer McGovern Bovis, Inc. v. Bullock Insulation, Inc., 124 Nev. 1102, 1118, 197 P.3d 1042, 1042 (2008), to the contract's essential terms, Certified Fire Prot., Inc. v. Precision Constr., Inc., 128 Nev. 371, 378, 283 P.3d 250, 255 (2012), and which terms are essential depends on the agreement, its context, and the subsequent conduct of the parties. Id. A court clarifying a disputed term in an agreement-based decree must consider the parties' intent and may look to the record as a whole and surrounding circumstances. Mizrachi, 132 Nev. at 677, 385 P.3d at 989; see also Harrison v. Harrison, 132 Nev. 564, 570, 376 P.3d 173, 177 (2016). Applying this framework, the court found the record showed the parties later unambiguously agreed on the record that Heidi would relocate with the children without any reservation regarding the children's consent, and that the purported consent condition was never mentioned again. The court further observed that Conrad never proposed adding a consent-condition during the drafting process, and that the parties' submissions evinced agreement that relocation would occur, with only the timing disputed. See May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005); Harrison, 132 Nev. at 570, 376 P.3d at 177; cf. Lehrer McGovern Bovis, Inc., 124 Nev. at 1118-19, 197 P.3d at 1042-43. The court concluded the children's consent was neither a condition precedent nor a material term and affirmed the refusal to modify the decree. On the custody-modification issue, the court reviewed the denial of a motion to modify custody without an evidentiary hearing for abuse of discretion, which occurs only when "no reasonable judge could reach a similar conclusion under the same circumstances." Myers v. Haskins, 138 Nev., Adv. Op. 51, 513 P.3d 527, 531 (Ct. App. 2022) (quoting Matter of Guardianship of Rubin, 137 Nev. 288, 294, 491 P.3d 1, 6 (2021)). A district court may deny modification without an evidentiary hearing unless the movant demonstrates "adequate cause," which arises when the movant makes a prima facie case for modification in the movant's affidavit and pleadings. Id. at 531-32. Modification requires a showing that "(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." Romano v. Romano, 138 Nev. 1, 3, 501 P.3d 980, 982 (2022) (quoting Ellis v. Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007)), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op. 48 (2023). Under Myers, in assessing a prima facie case a district court may generally only consider the properly alleged facts in the movant's verified pleadings, affidavits, or declarations, and must accept the movant's specific allegations as true. Id. at 529-30, 532. Conrad alleged that G.R. refused to get into Heidi's car on the day of relocation, called Conrad to pick him up, and wished to remain in Nevada until high school graduation, supported by a declaration incorporating the facts in his motion. The district court nonetheless found no substantial change in circumstances and declined to have G.R., then 15 and available, testify. The court cited NRCP 16.215(a) (requiring the court to use the rule's procedures to achieve its statutory duty to consider the wishes of the child) and NRS 125C.0035(4)(a) (best interest determination includes consideration of the wishes of the child if of sufficient age and capacity to form an intelligent preference as to physical custody). The court held that, under Myers, Conrad's allegations, if proven, could demonstrate a substantial change in circumstances affecting G.R.'s welfare and support a best-interest modification, see id. at 534, and thus the district court abused its discretion by denying modification without an evidentiary hearing. The court expressly disclaimed any opinion on the merits of the motion, acknowledged Heidi's challenges may prove correct or more credible, and left the current custody arrangement in place pending remand, subject to modification to comport with current circumstances. See Davis v. Ewalefo, 131 Nev. 445, 455, 352 P.3d 1139, 1146 (2015).

In plain language

Conrad and Heidi Roberson divorced after Heidi filed in 2018. They have two children, G.R. (born 2006) and J.R. (born 2010). Their case went to trial in 2021, but on the fourth day of trial they reached what they called a "full and final" settlement and read the terms into the record. Part of the deal was that Heidi would move to Arizona with the children, and they agreed this relocation was in the children's best interest. The parties agreed that Heidi's attorney would write the proposed divorce decree, Conrad's attorney would suggest edits, and the judge would settle any disagreements. Early in the settlement hearing, Conrad's attorney had said relocation was agreed "so long as the children are okay with it," but later in the same hearing both parties agreed—without any such condition—that Heidi would move to Arizona with the children. The court entered the divorce decree in October 2021. Conrad did not appeal it or object at the time. Just days before Heidi's planned December 2021 move, Conrad filed motions arguing that the children's consent to relocation was a required condition (a "condition precedent") that had been left out of the decree, and that the older child, G.R., did not want to move. Heidi moved to Arizona with the younger child, J.R., but G.R. refused to get into the car. The parties agreed G.R. could finish the school year in Nevada. Later disputes led the district court to grant Heidi's emergency motion, and G.R. was sent to live with her in Arizona. The district court denied Conrad's motions. It found the decree did not leave out any essential term, that it did not have to analyze the "best interest" factors because the parties had stipulated their agreement was in the children's best interest, and that Conrad had not made a preliminary ("prima facie") case that circumstances had changed enough to justify modifying custody of G.R. On appeal, the Court of Appeals reached two different results. First, it agreed with the district court that the children's consent was never actually part of the parties' agreement. The court noted Conrad relied on a single sentence taken out of context and that Conrad himself never proposed adding a consent-condition to the decree while the parties were exchanging drafts—the only real dispute was over the timing of the move. So the court affirmed the refusal to change the decree. Second, the court disagreed with how the district court handled the request to modify custody of G.R. Conrad had alleged that G.R., then 15, refused to relocate and wanted to stay in Nevada through high school, and he supported those allegations with a declaration. Under the governing standard, a court must accept such specific allegations as true when deciding whether to hold an evidentiary hearing. The court concluded these allegations, if proven, could show a substantial change in circumstances, and that the district court should have held an evidentiary hearing and considered G.R.'s wishes (G.R. was available to testify). The court stressed it was expressing no opinion on whether Conrad should ultimately win—only that a hearing was required first. It left the current custody arrangement in place pending further proceedings.