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

Statutes cited

Key holdings

Practitioner summary

Standard of review: A district court's custody determinations, child-support decisions, and attorney-fees awards are reviewed for abuse of discretion. Rivero v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009); Kantor v. Kantor, 116 Nev. 886, 8 P.3d 825 (2000). Custody-modification framework. The Court unified the test for modifying physical custody. Regardless of whether the existing arrangement is denominated joint or primary, the movant must show "(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 v. Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007). The Court traced the source of the prior bifurcated approach to Truax v. Truax, 110 Nev. 437, 874 P.2d 10 (1994), which had read NRS 125.510(2) to permit modification of joint custody on best-interest grounds alone. Reviewing Mosley v. Figliuzzi, 113 Nev. 51, 930 P.2d 1110 (1997), and Ellis, the Court concluded that res judicata principles and custodial-stability concerns apply equally to all custody arrangements, and accordingly aligned the joint-custody test with the primary-custody test announced in Ellis. 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," but preserved Rivero's definitions of joint and primary physical custody and its requirement of express factual findings. The Court also reaffirmed that parties may stipulate to a custody designation that does not match Nevada's default time-share thresholds, and that the designation controls until modified - but a party who agreed to a designation cannot move to alter the designation alone without also seeking to modify the underlying time-share under the unified test. See Citicorp Servs., Inc. v. Lee, 99 Nev. 511, 665 P.2d 265 (1983). Nance v. Ferraro, 134 Nev. 152, 418 P.3d 679 (Ct. App. 2018), and Castle v. Simmons, 120 Nev. 98, 86 P.3d 1042 (2004), remain good law on the scope of res judicata in custody cases. Application to custody. Aaron alleged no substantial change in circumstances affecting the children's welfare in the eight months between the stipulated order and his motion. The district court found "nothing was different" from the time the schedule was created, and the record supported that finding. No abuse of discretion. Child-support framework. A district court may modify child support upon a change in circumstances and a showing that modification serves the child's best interest. Rivero, 125 Nev. at 431, 216 P.3d at 228. Aaron's two arguments failed: First, Tracy's $6,018.67 monthly income was already in effect when the MSA was signed; it did not "increase" thereafter. Aaron's reliance on the 20-percent-change rule for an obligor failed for the same reason. Second, the Court rejected Aaron's argument that the new guidelines in NAC Chapter 425 (effective February 1, 2020) themselves constitute a change in circumstances. NAC 425.170(3) expressly provides that the new guidelines alone do not constitute changed circumstances. NRS 425.620 directs the Administrator of the Division of Welfare and Support Services to establish child-support guidelines, and NRS 425.450(1) authorizes the agency to set the formula and the times at which adjustment is appropriate. The Court held NAC 425.170(3) is within the agency's delegated authority, citing State ex rel. Nev. Tax Comm'n v. Saveway Super Serv. Stations, Inc., 99 Nev. 626, 668 P.2d 291 (1983), and Felton v. Douglas County, 134 Nev. 34, 410 P.3d 991 (2018) (quoting Meridian Gold Co. v. State ex rel. Dep't of Taxation, 119 Nev. 630, 81 P.3d 516 (2003)). The Court characterized NAC 425.170(3) as a "minor exception" to the general principle in Rivero and Burton v. Burton, 99 Nev. 698, 669 P.2d 703 (1983), that a legal change in circumstances may justify modification. Aaron's equal-protection challenge to NAC 425.170(3) was deemed waived under Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 623 P.2d 981 (1981), and the Court declined to reach it under Levingston v. Washoe County, 112 Nev. 479, 916 P.2d 163 (1996), citing Edwards v. Emperor's Garden Rest., 122 Nev. 317, 130 P.3d 1280 (2006), for failure to provide cogent argument and authority. Attorney fees. The district court awarded fees and costs to Tracy under the MSA's prevailing-party clause and NRS 18.010(2)(b). Aaron did not challenge reasonableness or the applicability of either basis. Because Tracy was the prevailing party, the award was not an abuse of discretion. NRS 18.010(1); Kantor, 116 Nev. at 896, 8 P.3d at 831.

In plain language

Aaron and Tracy Romano divorced in 2019. They have seven minor children. Before the divorce decree was entered, they signed a stipulated order resolving custody. Under that arrangement, the three oldest children spend roughly 90 percent of their time with Aaron, and the four youngest spend roughly 95 percent of their time with Tracy. Even though those percentages would not normally count as "joint physical custody" under Nevada law (which generally requires each parent to have the children at least 40 percent of the time), the parties agreed to label the arrangement joint physical custody. They also signed a Marital Settlement Agreement (MSA) setting Aaron's child-support payments and Tracy's alimony, and providing that the prevailing party in any litigation over the MSA would get attorney fees. About eight months later, Aaron asked the court to officially relabel the arrangement: he wanted the order to say he had primary physical custody of the three older children and Tracy had primary physical custody of the four younger children. He also asked the court to recalculate child support, both because of the actual time-share and because, he said, Tracy's monthly income had jumped from $0 to about $6,018. Tracy responded that nothing had actually changed - the time-share was exactly what they had agreed to, and her income (alimony plus interest on a promissory note Aaron pays) was already known and built into the deal. The district court denied Aaron's motion. It said there was no change in circumstances justifying a custody change, suggested Aaron was really trying to manufacture a change so he could take advantage of new child-support guidelines, and found Tracy's income had not actually changed. It then awarded Tracy attorney fees and costs. On appeal, the Nevada Supreme Court used the case to clear up a recurring confusion in its own prior decisions. Earlier cases had suggested that courts use one test to modify "joint" physical custody and a different test to modify "primary" physical custody. The Supreme Court held that there is just one test, regardless of label: the parent asking to change the arrangement must show (1) a substantial change in circumstances affecting the children's welfare, and (2) that the change would serve the children's best interest. The Court overruled the part of its earlier Rivero decision that had implied a district court must first figure out which kind of custody actually exists before deciding whether to change it. Applying that single test, the Court agreed with the district court that nothing meaningful had changed in the short time since the parties signed their agreement. The actual time-share was the same one the parties had agreed to. On child support, the Court held that Nevada's new child-support guidelines (in NAC Chapter 425, effective February 2020) do not, by themselves, count as a "change in circumstances" that lets a parent reopen support. A specific regulation, NAC 425.170(3), says exactly that, and the Court ruled the regulation is a valid exercise of the agency's authority. Tracy's income also did not count as a change, because it was already factored into the original agreement. Because Aaron lost on the merits, Tracy was the prevailing party, and the attorney-fees award (based on the MSA's fee-shifting clause and NRS 18.010(2)(b)) was upheld.