ROWLAND VS. YZAGUIRRE (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Jurisdiction. The court first dismissed Rowland's challenges to the initial custody decree as untimely under NRAP 4(a)(1), citing Healy v. Volkswagenwerk Aktiengesellschaft, 103 Nev. 329, 331, 741 P.2d 432, 433 (1987), for the proposition that an untimely notice of appeal fails to invoke the court's jurisdiction. Legal custody modification. Custody decisions, including legal custody, are reviewed for abuse of discretion. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007); Mack-Manley v. Manley, 122 Nev. 849, 858 (2006). Review focuses on whether the district court "reached its conclusions for the appropriate [legal] reasons" and whether its findings are "supported by substantial evidence." Ellis, 123 Nev. at 149, 161 P.3d at 241-42; see also Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993). The court presumes proper exercise of discretion in best-interest determinations. Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). Applying Rivero v. Rivero, 125 Nev. 410, 420, 216 P.3d 213, 221 (2009) (as modified by Romano v. Romano, 138 Nev. 1, 501 P.3d 980 (2022), and Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op. 43, 535 P.3d 1167, 1171 (2023)), and the two-prong modification standard of Romano - "(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" - the court held the district court's findings were supported by substantial evidence and declined to second-guess resolution of conflicting evidence or credibility findings. See Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009). Parenting-time modification. Applying the same abuse-of-discretion standard (Rivero, 125 Nev. at 428, 216 P.3d at 226) and the Romano test, the court emphasized that the changed-circumstances prong "is based on the principle of res judicata" and prevents dissatisfied litigants from filing serial motions "based on essentially the same facts." Ellis, 123 Nev. at 151, 161 P.3d at 243. The court concluded Rowland "did exactly what the changed-circumstances prong is designed to prevent" - moving to modify just a few months after the decree without identifying a substantial change since the October 2023 order, and instead attacking the findings in that order. The court also noted Rowland offered no cogent argument on appeal as to changed circumstances, invoking Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). Due process. Constitutional challenges are reviewed de novo. Sw. Gas Corp. v. Pub. Utils. Comm'n of Nev., 138 Nev. 37, 45, 504 P.3d 503, 511 (2022). The court cited the Fourteenth Amendment of the United States Constitution and Article 1, Section 8(5) of the Nevada Constitution (Rico v. Rodriguez, 121 Nev. 695, 702-03, 120 P.3d 812, 817 (2005)), the fundamental liberty interest of parents (Blanco v. Blanco, 129 Nev. 723, 731, 311 P.3d 1170, 1175 (2013)), the notice requirement (Wiese v. Granata, 110 Nev. 1410, 1412, 887 P.2d 744, 745 (1994); Sw. Gas Corp., 138 Nev. at 46, 504 P.3d at 511), and the right to a full and fair hearing (Moser v. Moser, 108 Nev. 572, 576, 836 P.2d 63, 66 (1992)). Because the district court's January 26, 2024 order gave the parties "prior specific notice" of the February 27, 2024 evidentiary hearing (see Dagher v. Dagher, 103 Nev. 26, 28, 731 P.2d 1329, 1330 (1987)), and both parties attended and presented evidence and argument, no due process violation was shown. Judicial bias. Relief was denied because Rowland did not show the court's decisions rested on knowledge acquired outside the proceedings or reflected "a deep-seated favoritism or antagonism that would make fair judgment impossible." Canarelli v. Eighth Jud. Dist. Ct., 138 Nev. 104, 107, 506 P.3d 334, 337 (2022); see In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988); Rivero, 125 Nev. at 439, 216 P.3d at 233 (burden on party asserting bias). The record showed the court listened to the testimony and considered the evidence, and did not close its "mind to the presentation of all the evidence." Cameron v. State, 114 Nev. 1281, 1283, 968 P.2d 1169, 1171 (1998).

In plain language

Wendy Rowland and Barry Yzaguirre share one minor child. According to the opinion, the child was born in Alabama, where Yzaguirre sought to establish paternity, but Rowland took the child to New Zealand and Yzaguirre lost contact. Rowland later moved with the child to Nevada, where she was arrested and convicted of an offense of child abuse and neglect involving the child. Child Protective Services took custody of the child, contacted Yzaguirre, and later returned the child to Rowland's care. Rowland then filed a petition in Nevada asking for sole legal and physical custody. After an evidentiary hearing (a hearing where the parties present testimony and other evidence), the district court found that Rowland had committed an act of domestic violence against the child and had repeatedly frustrated Yzaguirre's relationship with the child, including abducting the child after the Alabama custody proceedings began. The court awarded Yzaguirre sole legal and primary physical custody, allowed the child to relocate to Illinois to live with him, and gave Rowland weekly supervised remote parenting time plus calls on major holidays. A few months later, Rowland filed several motions asking the court to change its custody decisions - she wanted more supervised parenting time, more contact between the child and her half-siblings in Nevada, joint legal custody so she could contact the child's school and medical providers, and an order holding Yzaguirre in contempt for not allowing a phone call on President's Day. After another evidentiary hearing at which both parents testified, the district court denied her requests, finding she had not shown that a substantial change in circumstances justified modifying the custody arrangement, and declined to hold Yzaguirre in contempt, explaining that President's Day was not a major holiday. The court did, however, direct Yzaguirre to give Rowland weekly updates about the child, including documents from teachers, doctors, and other care providers. On appeal, the Nevada Court of Appeals reached four conclusions. First, it dismissed Rowland's attempt to challenge the original October 2023 custody decree because she did not appeal within the 30-day deadline, which means the appellate court had no jurisdiction (legal authority) to review that order. Second, it found no abuse of discretion in the denial of her requests to modify legal custody and parenting time, because a parent seeking to change custody must show a substantial change in circumstances affecting the child's welfare - and Rowland instead essentially re-argued the earlier custody decision. Third, it rejected her due process argument, because the district court gave both parties advance, specific notice of the evidentiary hearing and both attended and presented evidence. Fourth, it rejected her claim that the judge was biased, because she did not show the judge relied on information from outside the case or displayed the kind of deep-seated favoritism or antagonism that would make fair judgment impossible.