ROSSER VS. TAYLOR (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review. Child custody decisions are reviewed for abuse of discretion, Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996), and custody determinations supported by substantial evidence will not be set aside, Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). Child support orders are reviewed for abuse of discretion, Edgington v. Edgington, 119 Nev. 577, 588, 80 P.3d 1282, 1290 (2003), with underlying factual findings reviewed for substantial evidence, Miller v. Miller, 134 Nev. 120, 125, 412 P.3d 1081, 1085 (2018). Statutory interpretation is de novo. State Indus. Ins. Sys. v. Snyder, 109 Nev. 1223, 1227, 865 P.2d 1168, 1170 (1993). Attorney fee awards are reviewed for abuse of discretion and affirmed if supported by substantial evidence. Logan v. Abe, 131 Nev. 260, 266, 350 P.3d 1139, 1143 (2015). Legal custody. The statutory presumption that joint legal custody is in the child's best interest, NRS 125C.002(1), can be overcome where the district court finds the parents unable to communicate, cooperate, and compromise in the child's best interest. Rivero v. Rivero, 125 Nev. 410, 420-21, 216 P.3d 213, 221 (2009) (citing Mosley v. Figliuzzi, 113 Nev. 51, 60-61, 930 P.2d 1110, 1116 (1997)), overruled in part on other grounds by Romano v. Romano, 138 Nev. 1, 501 P.3d 980 (2022). The court noted in a footnote that the joint-legal-custody presumption applies only if the conditions of NRS 125C.0025(1) are met, and that neither factor appeared present, but declined to address the issue because it was not raised or briefed and would not change the outcome, citing Badillo v. Am. Brands, Inc., 117 Nev. 34, 42, 16 P.3d 435, 440 (2001). Substantial evidence - including findings that Rosser was dishonest and not credible about income, had little involvement in V.'s schooling, refused to pay support directly to Taylor, and treated disagreement as "a game" - supported the finding of dysfunction rebutting the presumption. Rosser's constitutional challenge failed: a parent's constitutional interest in the care, custody, and control of a child is not infringed when a court awards sole legal custody upon a reasonable best-interest determination, cf. Kelley v. Kelley, 139 Nev., Adv. Op. 39, 535 P.3d 1147, 1151 (2023), and Rosser's argument was not cogently developed, Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). Physical custody and parenting time. The parenting-time schedule was supported by substantial evidence of missed exchanges, months-long disappearances, and absence of bonding attributable to Rosser. Additionally, because Rosser requested twelve hours per week at trial and received nine, his challenge "is akin to invited error," citing Eivazi v. Eivazi, 139 Nev., Adv. Op. 44, 537 P.3d 476, 494 (Ct. App. 2023) ("The doctrine of 'invited error' embodies the principle that a party will not be heard to complain on appeal of errors which he himself has introduced or provoked the court or the opposite party to commit."). Applying Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 280 (Ct. App. 2023), the court held the order was not a de facto sole physical custody award: sole physical custody exists where "the child resides with only one parent and the noncustodial parent's parenting time is restricted to no significant in-person parenting time," whereas primary physical custody "may encompass a wide array of circumstances," including limited in-person parenting time for the nonprimary parent. Rosser's unsupervised, twice-weekly schedule with holiday time did not match Roe's examples of sole custody, the court considered his cancer diagnosis in fashioning the schedule, and he remains free to seek modification, see NRS 125C.0045(1). The court also cited Bluestein v. Bluestein (holding a district court can characterize custody as primary or joint even when the noncustodial parent's time falls below the 40 percent Rivero threshold). A footnoted argument that the court restricted Rosser's best-interest testimony was rejected on the record and for lack of cogent argument, with a citation to NRS 50.115(1) (trial court may reasonably control interrogation of witnesses and presentation of evidence). Child support, retroactive support, and birth expenses. Under NAC 425.125, a court may impute income to an obligor unemployed or underemployed without good cause, considering the obligor's specific circumstances to the extent known, NAC 425.125(2); see also Rosenbaum v. Rosenbaum, 86 Nev. 550, 554, 471 P.2d 254, 256-57 (1970). Rosser's own testimony - that he chose not to work, received six figures annually from his father, paid no rent, and that $4,000-$5,000 monthly could be imputed - supported the $8,333 monthly imputation and $1,147 monthly support award, and the court expressly considered his cancer diagnosis. Retroactive support was proper under NRS 125B.030, which allows a physical custodian to recover "not more than 4 years' support furnished before the bringing of the action"; Rosser's demand for specific findings cited inapplicable statutes and was not cogently presented, and the record did not show abduction or "hiding." On statutory interpretation, NRS 125B.020(3) - "[t]he father is also liable to pay the expenses of the mother's pregnancy and confinement" - is clear and unambiguous, and reading NRS 125B.020 as a whole, see Bldg. & Constr. Trades Council of N. Nev. v. State ex rel. Pub. Works Bd., 108 Nev. 605, 610, 836 P.2d 633, 636 (1992), the use of "father" rather than "they" or "parents" indicates the father must pay all such expenses. Rosser's Equal Protection Clause assertion was unsupported by relevant authority and not considered. Attorney fees. Fees may be awarded only when authorized by rule, statute, or contract, Henry Prods., Inc. v. Tarmu, 114 Nev. 1017, 1020, 967 P.2d 444, 446 (1998); the district court awarded fees under NRS 125C.250 and reviewed the Brunzell factors, Brunzell v. Golden Gate National Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969). Although the court did not expressly address the parties' income disparity, see Wright v. Osburn, 114 Nev. 1367, 1370, 970 P.2d 1071, 1073 (1998), the record as a whole showed it considered it, and express findings on each factor are not required, Logan, 131 Nev. at 266, 350 P.3d at 1143. The $60,000 award - significantly less than the $100,434.81 requested - was affirmed. Reassignment. Rosser's request for reassignment to a different judge was moot: the case was not being remanded, and the trial judge no longer serves on the Eighth Judicial District bench, so any future matter must be reassigned in any event. See Personhood Nev. v. Bristol, 126 Nev. 599, 602, 245 P.3d 572, 574.

In plain language

This case involves a custody dispute over V., a child born in May 2019 to Terry Rosser and Joan Taylor, who briefly dated but never married. According to the opinion, Rosser initially told Taylor she would be the child's primary caregiver, at one point during the pregnancy tried to self-terminate his parental rights, and eventually stopped communicating with Taylor. He was not present at the birth and sent only three messages over the next year. In April 2020, Rosser filed a complaint seeking joint legal and physical custody; Taylor counterclaimed for primary physical custody, sole legal custody, and child support, including retroactive child support. The trial was continued seven times and finally took place in November 2023. In the intervening years, problems accumulated. Rosser missed a large share of his scheduled parenting time - Taylor estimated more than 100 missed exchanges, over half his parenting time, and Rosser himself testified he missed dozens of visits. He refused to cooperate meaningfully in discovery (the pretrial exchange of evidence), refused during his deposition to say how much money he earned, and sent blank HIPAA authorizations when Taylor requested his medical records. He also fell behind on the $84 monthly temporary child support and refused to pay Taylor directly because he "just didn't want to interact ... with the mother at all." At trial, Rosser - who had been diagnosed with cancer - stipulated (formally agreed) that Taylor would have primary physical custody, but he still sought joint legal custody and requested four days a week of three unsupervised hours of parenting time. He also testified that he "[chose] not to [work], let's put it that way," that his father gave him over "six figures" each year, and that the court could impute (attribute) $4,000 to $5,000 a month of income to him. The district court awarded Taylor primary physical custody, gave Rosser two days a week of four-and-a-half unsupervised hours each, plus every Father's Day and Christmas Day and every other Thanksgiving and Easter, and granted Taylor sole legal custody after finding the parties' communication and cooperation were dysfunctional. It imputed Rosser's income at $8,333 per month, set child support at $1,147 per month, ordered $56,507 in retroactive support, required Rosser to pay the remaining medical expenses of V.'s birth and half of her health insurance, and awarded Taylor $60,000 in attorney fees. The Nevada Court of Appeals affirmed on every issue. It held that substantial evidence - evidence a reasonable person would accept as adequate - supported the finding that the parents' dysfunction rebutted the presumption favoring joint legal custody, pointing to the district court's findings that Rosser was dishonest and not credible, had long absences from V.'s life, and "views disagreement on nearly all issues involving [V.], many of which are trivial, [as] a game." On parenting time, the court noted Rosser had never exercised more than three hours a day and had missed a significant amount of his pretrial time; it also observed that the nine hours per week awarded nearly matched the twelve hours he requested, "which is akin to invited error" - a doctrine barring a party from complaining on appeal about something he asked for. The court rejected Rosser's argument that his schedule was really "sole" rather than "primary" physical custody, explaining that his time is unsupervised, occurs twice weekly, and includes holidays - unlike the highly restrictive arrangements that define sole physical custody. On money issues, the court held the imputed income was supported by Rosser's own testimony, that retroactive support was permitted (Taylor sought it when V. was one year old, and the statute allows recovery of up to four years of support furnished before the action), and that the statute making "[t]he father ... also liable to pay the expenses of the mother's pregnancy and confinement" is clear and unambiguous. Finally, the attorney fee award was upheld because the district court reviewed the required reasonableness factors and awarded significantly less than the $100,434.81 Taylor requested. A request to reassign the case to a different judge was deemed moot because the case was not being remanded and the trial judge no longer serves on the district court bench.