SANTOS GARCIA VS. DORADO ROSALES (CHILD CUSTODY)

Key holdings

Practitioner summary

The Court of Appeals reviewed the denial of attorney fees and costs for abuse of discretion, citing Gunderson v. D.R. Horton, Inc., 130 Nev. 67, 80, 319 P.3d 606, 615 (2014), and noted that a district court abuses its discretion when it applies an incorrect legal standard, citing In re Halverson, 123 Nev. 493, 510, 169 P.3d 1161, 1173 (2007). Because the case turned on the meaning of a federal statute, the court applied de novo review to statutory construction under Leven v. Frey, 123 Nev. 399, 402, 168 P.3d 712, 714 (2007), and reiterated that where a statute's language is plain, the court generally applies that plain language, id. at 403, 168 P.3d at 715. The court acknowledged the Supremacy Clause, U.S. Const. art. VI, § 2, and the doctrine of federal preemption, citing Nanopierce Techs., Inc. v. Depository Tr. & Clearing Corp., 123 Nev. 362, 370, 168 P.3d 73, 79 (2007). The operative statute, 22 U.S.C. § 9007(b)(3), provides that a court ordering the return of a child under 22 U.S.C. § 9003 "shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner," including court costs and legal fees, "unless the respondent establishes that such order would be clearly inappropriate." The court characterized this as a "mandatory obligation to impose necessary expenses, unless the respondent establishes that to do so would be clearly inappropriate," quoting Noergaard v. Noergaard, 271 Cal. Rptr. 3d 905, 915 (Ct. App. 2020). The prevailing petitioner is presumptively entitled to necessary costs, and the statute shifts the burden of proof to the losing respondent to show why an award would be clearly inappropriate. Id. at 915. The court noted the presumptively mandatory nature of "shall," citing State v. Am. Bankers Ins. Co., 106 Nev. 880, 882, 802 P.2d 1276, 1278 (1990). The court surveyed factors other courts have used to assess whether an award is clearly inappropriate: the respondent's financial circumstances (Rydder v. Rydder, 49 F.3d 369, 373-74 (8th Cir. 1995)); intimate partner violence prompting removal (Souratgar v. Lee Jen Fair, 818 F.3d 72, 79 (2d Cir. 2016)); and whether a parent had a reasonable basis for believing they could remove the child (Ozaltin v. Ozaltin, 708 F.3d 355, 375-76, 378 (2d Cir. 2013)). Applying this framework, the court held that the district court summarily denied the fee request without considering the statutory presumption favoring a prevailing petitioner and made no findings regarding either that presumption or whether Hugo had established that an award would be clearly inappropriate. This failure to apply the full, applicable legal analysis constituted an abuse of discretion, citing Gunderson, 130 Nev. at 82, 319 P.3d at 616. The court rejected Hugo's waiver argument premised on NRCP 54(d). It reasoned that the plain language of 22 U.S.C. § 9007(b)(3) does not require a separate motion, quoting Noergaard for the proposition that "the only absolute prerequisite for an award of fees and costs to the prevailing party is an order for the return of the child." It further noted that NRCP 54(d)(2)(B) requires a motion "[u]nless a statute ... provides otherwise," and that a further motion would have been futile given the district court's oral and written denials. The court cited Soonhee Kim v. Ferdinand, 287 F. Supp. 3d 607, 632 (E.D. La. 2018), and Cartes v. Phillips, 240 F. Supp. 3d 669, 684 (S.D. Tex. 2017), aff'd, 865 F.3d 277 (5th Cir. 2017), as illustrations of courts directing later submission of fee itemizations. On remand, the district court should permit Florentina to file a memorandum of fees and costs, determine the amount necessarily incurred to prevail, and then shift the burden to Hugo to show an award would be clearly inappropriate under federal law. The court denied Hugo's January 4, 2024, motion for sanctions against Florentina's counsel but cautioned counsel to adhere to the Nevada Rules of Appellate Procedure. The court did not address the return-of-children ruling because neither party challenged it.

In plain language

Florentina Santos Garcia and Hugo Angel Dorado Rosales were never married but had two children, one born in Nevada in 2007 and one born in Mexico in 2009. After the couple's relationship ended in 2009, Florentina moved to Mexico and raised both children there from 2009 to 2019. When the children came to Nevada to visit Hugo and other family, Hugo kept them in Nevada beyond the scheduled visit. Hugo then went to court in Nevada seeking sole legal and primary physical custody. Florentina responded by asking the same court to order the children returned to Mexico under the Hague Convention, an international agreement (put into effect in the United States by a federal law) that generally requires a child who has been wrongfully removed from their home country to be sent back. She argued Hugo had wrongfully kept the children in the United States. The district court agreed with Florentina and ordered the children returned to Mexico, finding Hugo had wrongfully retained them. But the court refused to make Hugo pay Florentina's attorney fees and costs, saying it believed both parties' positions were reasonable. Florentina appealed only that fee decision; nobody challenged the return of the children. The federal statute Florentina relied on says a court that orders a child returned "shall" order the losing party to pay the winning party's necessary expenses - including court costs and legal fees - unless the losing party shows such an order would be "clearly inappropriate." In everyday terms, the person who wins a return petition is presumed to get their expenses paid, and it is the losing party's job to prove why that would be unfair. The Court of Appeals concluded that the district court did not apply this rule. The lower court simply denied fees at the hearing without addressing the presumption that Florentina was entitled to an award or considering whether Hugo had shown an award would be "clearly inappropriate." Because the district court did not perform this required analysis, the appellate court held it had abused its discretion and sent the case back so the correct standard could be applied. The court also rejected Hugo's argument that Florentina gave up her fee claim by not filing a separate written motion. The appellate court explained the federal statute does not require a separate motion, that the Nevada rule requiring a motion applies only unless a statute provides otherwise, and that asking again would have been pointless because the court had already denied the request orally and in writing. On remand, the district court should allow Florentina to file a statement of her fees and costs, determine the amount necessarily incurred to win her petition, and then decide whether Hugo has shown an award would be clearly inappropriate.