ROWBERRY VS. ROWBERRY (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's custody and relocation determinations for abuse of discretion. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007); Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1227 (2004). An abuse of discretion occurs when a decision is not supported by substantial evidence or is clearly erroneous, Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018), when the court disregards controlling law, MB Am., Inc. v. Alaska Pac. Leasing Co., 132 Nev. 78, 88, 367 P.3d 1286, 1292 (2016), or when it makes an obvious error of law, Franklin v. Bartsas Realty, Inc., 95 Nev. 559, 562-63, 598 P.2d 1147, 1149 (1979). Factual findings are upheld if supported by substantial evidence, defined as evidence a reasonable person may accept as adequate to sustain a judgment. Ellis, 123 Nev. at 149, 161 P.3d at 242. The reviewing court must also be satisfied the determination was made for appropriate reasons. Rico v. Rodriguez, 121 Nev. 695, 701, 120 P.3d 812, 816 (2005). NRS 200.359(5): The court held the district court's finding that Trisha violated NRS 200.359(5) was clearly erroneous. That statute prohibits a parent "who has primary physical custody" from relocating with the child under NRS 125C.006 without written consent of the non-relocating parent or the court's permission. When Trisha moved to Texas, the children were physically with Joshua in Las Vegas; Joshua was notified before the children relocated and had the opportunity to contest the move through Trisha's emergency pickup motion but relented. The district court had also earlier found (inaccurately) that no permission was needed for a secondary relocation. Both Joshua and the court were informed of the relocation before the children were actually relocated, and the court granted implicit permission. NRS 125C.0075(1) evidentiary exclusion: Reviewing evidentiary exclusion for abuse of discretion, M.C. Multi-Family Dev., LLC v. Crestdale Assocs., Ltd., 124 Nev. 901, 913, 193 P.3d 536, 544 (2008), the court held the district court erroneously excluded Trisha's post-relocation evidence. NRS 125C.0075(1) bars consideration of post-relocation facts only where a primary-custody parent relocates in violation of NRS 200.359. Because Trisha did not violate the criminal statute, the exclusionary predicate was absent. Threshold relocation requirements and improper evidentiary analysis: NRS 125C.007(1) sets three threshold requirements: (a) a sensible, good-faith reason not intended to deprive the non-relocating parent of parenting time; (b) that the child's best interests are served; and (c) that the child and relocating parent will benefit from an actual advantage. The district court found factors (b) and (c) favored denial. The Court of Appeals found the district court improperly limited its educational comparison to Texas versus Nevada grades, rather than comparing Arizona (the authorized residence) to Texas or evaluating other advantages. The court held that the district judge's revisiting and rejection of the 2020 relocation findings was improper under the law-of-the-case doctrine. Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975). The court noted that Pelkola v. Pelkola, 137 Nev. 271, 487 P.3d 807 (2021), held NRS 125C.006(1)(b) applies to relocations from a place outside Nevada to another place outside Nevada, but that Pelkola did not address the type of evidence a court may consider on a second relocation. Under Hall, findings from the first hearing must not be relitigated. Because it was unclear whether the district court would have reached the same conclusion had it examined only current and applicable evidence, reversal and remand were warranted. In re Guardianship of B.A.A.R., 136 Nev. 494, 500, 474 P.3d 838, 844 (Ct. App. 2020). Substantial-evidence challenges: The court sustained three of Trisha's four challenges. Under NRS 125C.007(2)(c), the finding that Trisha would not comply with substitute visitation orders was unsupported; the underlying incidents were, at worst, isolated and later resolved, with no showing she failed to substantially comply with parenting-time orders from 2020 to 2022. The finding that she refused to file a relocation motion was clearly erroneous, as her April 2021 supreme court writ petition demonstrated a reasonable belief that a second motion was not legally required, and she filed the motion within six weeks of Pelkola's publication. The finding that she violated NRS 200.359(5) was unsupported, and was undermined by the district court's own finding under the abduction best-interest factor, NRS 125C.0035(4)(l), that her relocation did not constitute a criminal act. The court rejected Trisha's challenge to the finding under NRS 125C.007(2)(d) that Joshua's opposition was not intended to harass or gain a financial advantage, finding that determination supported by substantial evidence, particularly since Joshua was not seeking child support and his opposition was strengthened by domestic-violence allegations involving T.R. and T.R.'s custody preference. A.R.'s custodial preference: The court held the district court's findings on A.R.'s preference under NRS 125C.0035(4)(a) were clearly erroneous and unsupported by substantial evidence. A.R. was nearly 13-and-a-half at the January 2022 FMC interview, expressed a desire to remain in Texas, and rated her relationship with Trisha a 9 or 10. The district court found her not of sufficient age and capacity based on her answers to a hypothetical "three wishes" question. The Court of Appeals held the child is not required to articulate and justify the basis for relocation under NRS 125C.007 but need only express her wishes, and may testify by alternative means, citing NRS 50.015, NRS 50.530, NRCP 16.215(b)(3), and NRCP 16.215(a). The court further held the district court improperly combined its analysis of both children under NRS 125C.007(1)(b)-(c) and under NRS 125C.0035(4)(h), and erred by finding the latter factor favored Joshua without individualized findings despite finding A.R. had a closer relationship with Trisha. Domestic violence: In a footnote, the court noted NRS 125C.0035(5) creates a rebuttable presumption requiring a finding by clear and convincing evidence after an evidentiary hearing, but the district court's order referred only to NRS 125C.0035(4)(j) and (k), not NRS 125C.0035(5); thus no rebuttable presumption was applied. The court noted the finding of domestic violence was of lesser impact as to A.R.'s custody because she was not involved in and did not report witnessing any. Pelkola: The court declined to limit Pelkola, stating it is bound by the Nevada Supreme Court's interpretation, citing Hubbard v. United States, 514 U.S. 695, 720 (1995) (Rehnquist, C.J., dissenting) and People v. Solorzano, 63 Cal. Rptr. 3d 659, 664 (Ct. App. 2007). It observed that any change for military families would come from the Nevada Legislature, Congress, the United States Supreme Court, or the Nevada Supreme Court, and noted NRS 125C.007(2)(f) permits consideration of any other factor necessary to the determination.

In plain language

Trisha and Joshua Rowberry divorced in 2012. Trisha received primary physical custody of their two children, and both parents shared joint legal custody. Joshua had weekly parenting time. In 2019 Trisha married Trevyn, a U.S. Air Force officer stationed near Phoenix, Arizona. Trisha asked the court for permission to move the children to Arizona; the district court granted that request in March 2020, and the Court of Appeals affirmed that decision in a 2021 ruling. Not long after, in July 2020, Trevyn received military orders to report to a base near San Antonio, Texas. Trisha and Trevyn moved to Texas. At the time Trisha moved, the children were physically staying with Joshua in Nevada for the summer. Trisha notified Joshua of the move by email, and Joshua initially disagreed. Trisha filed an emergency motion to have the children returned to her, but Joshua relented and let the children go to Texas, so that motion became unnecessary. The children then enrolled in school in Texas. A series of motions followed. At one point the district court told Trisha she needed to file a second relocation motion (to move from Arizona to Texas). Trisha challenged that requirement in the Nevada Supreme Court, but the Court of Appeals denied her challenge because of a recent Nevada Supreme Court decision, Pelkola v. Pelkola, which held that a parent needs permission even when moving from one state outside Nevada to another state outside Nevada. Trisha then filed her second relocation motion. Joshua filed a countermotion asking for primary physical custody in Nevada. At a May 2022 evidentiary hearing, the court heard testimony from Trisha, Joshua, and Trevyn, including testimony about alleged domestic violence in the Texas home involving Trisha, Trevyn, and the older child, T.R. Those incidents had been investigated by Texas child protective services (which reached an "unable to determine" finding), the Air Force (which found the allegation did not meet its criteria), and local law enforcement (which filed no charges). T.R. told a Las Vegas interviewer he preferred to live with Joshua; the younger child, A.R., said she preferred to live with her mother in Texas. After the hearing, the district court issued a 28-page order and a formal decision. It found that Trisha had "relocated from Arizona to Texas without permission," treated that as effectively violating a criminal statute (NRS 200.359), excluded the evidence she had gathered after moving to Texas, and granted Joshua primary physical custody, finding it in the children's best interest. The Court of Appeals reversed. It found several errors. First, the court held that the criminal statute Trisha was accused of violating did not apply to her, because when she moved, the children were with Joshua in Nevada, not in her physical custody, and both Joshua and the court knew about the move before the children were relocated. Because she did not violate that criminal statute, the court also held that the evidence-exclusion rule tied to that statute should not have been used against her, meaning her post-relocation evidence about the children's schooling and activities was wrongly excluded. Second, the court found that the district court analyzed the evidence improperly. It compared the children's grades in Texas to their grades in Nevada, but the relevant comparison in a second relocation case would be between Arizona (where they had been authorized to live) and Texas. The court also found the district judge had improperly revisited and rejected findings from the earlier 2020 relocation decision, which is barred by a rule called "law of the case." Third, the court found several of the district court's factual findings were not supported by the evidence, including findings that Trisha would not comply with visitation orders, that she refused to file a relocation motion, and that she violated the criminal statute. However, the court found that the district court's finding about Joshua's motives in opposing relocation was adequately supported. Fourth, the court found the district court wrongly handled A.R.'s stated preference. A.R. was nearly 13-and-a-half when interviewed and expressed a clear wish to stay in Texas with her mother, but the district court decided she lacked the maturity to form an intelligent preference, based partly on her answers to a question about three wishes (she said she wanted to stop having migraines and to have mind-reading superpowers). The Court of Appeals found the district court applied the wrong legal standard and improperly combined A.R.'s situation with T.R.'s, even though A.R. was not involved in the alleged domestic violence and had a closer relationship with her mother. Finally, the court declined Trisha's request to limit the Pelkola decision for military families. It explained that it is bound to follow the Nevada Supreme Court's interpretation of the statute, and that any change for military families would have to come from the Legislature, Congress, the U.S. Supreme Court, or the Nevada Supreme Court. The case was sent back to the district court for a new determination on Trisha's motion to relocate with A.R. and Joshua's countermotion for primary custody.