ROMANO VS. ROMANO (CHILD CUSTODY) C/W 81439

Statutes cited

Key holdings

Practitioner summary

Standard of review: Custody and child-support determinations are reviewed for abuse of discretion. Rivero v. Rivero, 125 Nev. 410, 428, 438, 216 P.3d 213, 226, 232 (2009). A district court abuses its discretion in a custody determination when it fails to make findings of fact supported by substantial evidence. Id. at 429, 216 P.3d at 226. Attorney-fee awards are likewise reviewed for abuse of discretion. Kantor v. Kantor, 116 Nev. 886, 896, 8 P.3d 825, 831 (2000). Custody-modification framework. The Court resolved a longstanding inconsistency between Truax v. Truax, 110 Nev. 437, 874 P.2d 10 (1994), which suggested joint physical custody could be modified solely on a best-interest showing, and Ellis v. Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007), which required a showing of substantial changed circumstances for primary custody modification. Tracing prior cases, including Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968), Mosley v. Figliuzzi, 113 Nev. 51, 930 P.2d 1110 (1997), Hopper v. Hopper, 113 Nev. 1138, 946 P.2d 171 (1997), and Castle v. Simmons, 120 Nev. 98, 86 P.3d 1042 (2004), the Court held that "regardless of whether a movant requests to modify joint custody or primary physical custody," the movant "must show 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.'" Ellis, 123 Nev. at 150, 161 P.3d at 242. The unified test rests on res judicata and custodial-stability rationales applicable to all custody designations. The Court collected supporting authority from other jurisdictions, including E.F.B. v. L.S.T., 157 So. 3d 917 (Ala. Civ. App. 2014), Mahan v. McRae, 522 S.E.2d 772 (Ga. Ct. App. 1999), and Mimms v. Brown, 856 So. 2d 36 (La. Ct. App. 2003). Effect on Rivero. The Court overruled Rivero "to the extent it indicates that a district court must first determine what type of physical custody arrangement exists before considering whether to modify that arrangement." The portions of Rivero defining joint and primary physical custody and requiring express factual findings on modification criteria remain intact. The Court reaffirmed that parties may stipulate to a custody designation enforceable unless unconscionable, illegal, or against public policy, but a party who agrees to a designation cannot later seek to modify the label without also seeking to modify the underlying timeshare under the unified two-part test. Cf. Citicorp Servs., Inc. v. Lee, 99 Nev. 511, 513, 665 P.2d 265, 266 (1983). The Court also reaffirmed Nance v. Ferraro, 134 Nev. 152, 163, 418 P.3d 679, 688 (Ct. App. 2018), which permits a district court to revisit facts and evidence underlying prior orders when assessing the child's best interest. Application to custody. Aaron failed to allege, much less show, a substantial change in circumstances affecting the welfare of the children in the few months following the stipulated order. The district court's finding that "nothing was different" was supported by the record. Child-support modification. Modification of child support requires a change in circumstances and a showing that modification is in the child's best interest. Rivero, 125 Nev. at 431, 216 P.3d at 228. Tracy's income of $6,018.67 was not a post-MSA increase; it was the income the parties used in setting support. As to the new guidelines under NAC Chapter 425 (effective Feb. 1, 2020), Aaron argued the new formula constituted a legal change in circumstances under Rivero, 125 Nev. at 432, 216 P.3d at 228, and Burton v. Burton, 99 Nev. 698, 669 P.2d 703 (1983). The Court held that NAC 425.170(3) - which provides that enactment of the new guidelines alone is not a change of circumstances sufficient to modify an existing support order - was a valid agency regulation. NRS 425.620 directs the Administrator of the Division of Welfare and Support Services to establish guidelines, and NRS 425.450(1) commands the agency to establish a formula for adjustment and the times at which adjustment is appropriate. Because the regulation does not violate the constitution, conflict with statute, exceed agency authority, or qualify as arbitrary and capricious, it is valid under State ex rel. Nev. Tax Comm'n v. Saveway Super Serv. Stations, Inc., 99 Nev. 626, 630, 668 P.2d 291, 294 (1983), and Felton v. Douglas County, 134 Nev. 34, 38, 410 P.3d 991, 995 (2018) (quoting Meridian Gold Co. v. State ex rel. Dep't of Taxation, 119 Nev. 630, 635, 81 P.3d 516, 519 (2003)). The regulation is "a minor exception" to the general rule that a legal change can be a changed circumstance. Aaron's equal-protection challenge to NAC 425.170(3) was waived under Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981), and not addressed because of the absence of cogent argument under Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006); see also Levingston v. Washoe County, 112 Nev. 479, 482, 916 P.2d 163, 166 (1996). Attorney fees. Because Tracy prevailed, the fee award under the MSA and NRS 18.010(2)(b) was within the district court's discretion. NRS 18.010(1) authorizes fees pursuant to contract or statute. Aaron did not challenge reasonableness or the applicability of NRS 18.010 or the MSA.

In plain language

Aaron and Tracy Romano divorced in 2019 and have seven minor children together. Before the divorce decree was entered, the couple signed a stipulated order spelling out a complicated custody timeshare: the three oldest children spend roughly 90 percent of their time with Aaron, and the four youngest spend about 95 percent of their time with Tracy. Even though those percentages would not normally qualify as "joint physical custody" under Nevada law (which generally requires each parent to have the child at least 40 percent of the time), the parents agreed to call it joint physical custody anyway. They also signed a Marital Settlement Agreement (MSA) that set Aaron's child-support payments and other financial terms. About eight months later, Aaron asked the district court to "confirm" that the actual living arrangement was really primary physical custody (not joint), and to recalculate child support accordingly. He argued two things had changed: the actual time-share with the children, and Tracy's monthly income, which he said had risen from $0 to about $6,018. He also argued that Nevada had adopted new child-support guidelines (NAC Chapter 425, effective February 1, 2020) and that the new guidelines were themselves a change of circumstances justifying a recalculation. The district court denied the motion, found Aaron had not shown any change in circumstances, awarded Tracy her attorney fees, and Aaron appealed. The Nevada Supreme Court affirmed. The Court used the case to clean up an inconsistency in Nevada custody law. For years, courts had applied two different tests depending on whether parents had "joint" or "primary" physical custody. The Court now holds there is just one test: to modify any physical custody arrangement, the parent asking for the change must show (1) a substantial change in circumstances affecting the welfare of the child, and (2) that the modification serves the child's best interest. The Court overruled portions of its earlier decision in Rivero v. Rivero to the extent that case suggested a district court must first figure out whether the existing arrangement is "really" joint or primary before ruling on a motion to modify. Applied to Aaron's case, the Court held the district court reasonably found nothing had substantially changed in the few months between the stipulated order and Aaron's motion. The custodial timeshare was the same one the parents had agreed to, and Tracy's income reflected payments (alimony and interest on a promissory note from Aaron) that were part of the same global settlement. On child support, the Court held that Tracy's income had not actually increased post-MSA - it was already what the parties used when they set support. As to the new state child-support guidelines, the Court pointed to NAC 425.170(3), a regulation stating that adoption of new guidelines, by itself, is not a change in circumstances sufficient to modify an existing child-support order. The Court held that regulation is a valid exercise of the agency's authority delegated by NRS 425.620 and NRS 425.450(1), and it carves out a narrow exception to the general rule that a change in the law can be a change in circumstances. Finally, because Tracy was the prevailing party and the MSA and NRS 18.010(2)(b) authorized fees, the Court upheld the attorney fees award.