SALVATIERRA VS. SALVATIERRA (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's decisions in divorce proceedings for abuse of discretion, citing Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004), and reviewed the child custody determination for abuse of discretion under Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). The court noted it will not disturb a district court decision supported by substantial evidence. Ellis, 123 Nev. at 149, 161 P.3d at 242; Williams, 120 Nev. at 566, 97 P.3d at 1129. In custody determinations, the sole consideration is the best interest of the child, per NRS 125C.0035(1) and Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015), and the court presumes the district court properly exercised its discretion in determining the child's best interest, citing Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). Applying this framework, the court found Walter's assertion that he lacked notice of the trial "belied by the record." The record showed Walter was present at the November 2020 hearing when the trial date was set, and the order following that hearing was mailed to his address in January 2021, before he was taken into custody in April 2021. The court further found that Walter failed to cogently argue why this was insufficient notice or how his rights were violated, citing Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (appellate courts need not consider issues not cogently argued). The court therefore could not conclude that Walter did not receive sufficient notice or that the district court abused its discretion in entering the decree after his failure to appear, citing Ellis, Williams, and Gordon v. Geiger, 133 Nev. 542, 545-46, 402 P.3d 671, 674 (2017) (due process requires notice and an opportunity to be heard). Addressing Walter's contention that his incarceration prevented him from presenting his case, the court observed that "[a]n appellate court is not particularly well-suited to make factual determinations in the first instance," quoting Ryan's Express Transp. Servs., Inc. v. Amador Stage Lines, Inc., 128 Nev. 289, 299, 279 P.3d 166, 172 (2012). The court identified the proper mechanism for challenging a judgment on such grounds as a motion or action under NRCP 60(b) in the district court, citing Schulman v. Bongberg-Whitney Elec., Inc., 98 Nev. 226, 228-29, 645 P.2d 434, 435-36 (1982), and Norris v. Phillips, 86 Nev. 619, 619-20, 472 P.2d 347, 347 (1970). Because Walter did not seek to set aside the decree on those grounds but instead filed the appeal, the district court had no opportunity to consider the argument in the first instance. The court invoked the waiver principle from Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A point not urged in the trial court ... is deemed to have been waived and will not be considered on appeal."), together with Ryan's Express. Concluding that Walter failed to demonstrate that reversal was warranted, the court affirmed. In a footnote, the court stated that any arguments Walter raised that were not specifically addressed either did not present a basis for relief or need not be reached given the disposition.

In plain language

This case arose from a divorce. Marlene Salvatierra filed for divorce in January 2020. Walter filed his answer and a counterclaim, and the couple attended a case management conference. Because of allegations that Walter committed domestic violence, the district court initially gave Marlene temporary sole legal custody and primary physical custody of the couple's two children and allowed Walter supervised parenting time at a facility called Donna's House on Saturdays. At a hearing in November 2020, the court expanded Walter's parenting time to Saturdays and Sundays from noon until 6:00 p.m., ordered him to take a random drug test, and scheduled a trial for May 2021. In March 2021, Marlene asked the court to suspend Walter's parenting time, saying he had failed his drug test and had been convicted of battery constituting domestic violence and attempt child abuse, neglect, or endangerment. The trial went ahead in May 2021, but Walter did not attend and had no lawyer there. In the resulting divorce decree, the court gave Marlene sole legal and sole physical custody of both children. The court noted that after Walter was released from prison, he could ask to change the parenting schedule and begin reunification with his children if he showed six months of sobriety. The decree also divided the couple's shared property and debts. Walter then appealed. Walter's main argument on appeal was that the decree was unfair and violated his rights because he never got notice of the trial, having been taken into custody in April 2021. The Court of Appeals disagreed. The court explained that the record showed Walter was present at the November 2020 hearing when the trial date was set, and that the written order from that hearing was mailed to his address in January 2021 - well before he was taken into custody in April 2021. The court also said Walter did not clearly explain why this was not enough notice or how his rights were violated. The court added that, to the extent Walter was arguing he could not participate because he was in jail, an appeals court is not the right place to sort out that kind of factual question for the first time. The proper way to challenge a judgment on that basis is to file a motion in the district court under a specific rule (NRCP 60(b)), which is designed for asking a trial court to set aside a judgment. Walter did not do that; he appealed instead, so the district court never had a chance to consider that argument. Because Walter did not show that reversal was warranted, the Court of Appeals affirmed the divorce decree.