SCHAEFER VS. WHITE (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's child custody determinations for abuse of discretion, declining to set aside factual findings supported by substantial evidence, defined as "evidence that a reasonable person may accept as adequate to sustain a judgment." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007). On the physical custody timeshare, Schaefer relied on Rivero v. Rivero, 125 Nev. 410, 426, 216 P.3d 213, 224 (2019), arguing the arrangement was not truly "joint" because his parenting time fell below 40 percent of the calendar year. The court reiterated that the child's best interest is the primary and sole consideration, citing Bluestein v. Bluestein, 131 Nev. 106, 109, 345 P.3d 1044, 1046 (2015), and NRS 125C.0035(1). While Rivero described a 40-percent threshold as generally constituting joint physical custody, Bluestein clarified that the figure is a guideline and evaluative tool rather than a rigid, dispositive, mathematical bright-line rule. Bluestein, 131 Nev. at 113, 345 P.3d at 1049. Because the district court conducted a thorough analysis of the statutory best-interest factors, concluded joint physical custody served the child's best interest, and Schaefer did not argue that determination was an abuse of discretion or unsupported by substantial evidence, the court found no abuse of discretion. On school placement, the court reviewed the best-interest determination regarding a minor child's education for abuse of discretion, citing Arcella v. Arcella, 133 Nev. 868, 870, 407 P.3d 341, 344 (2017) (citing Mack v. Ashlock, 112 Nev. 1062, 1065, 921 P.2d 1258, 1261 (1996)). The court recited the ten illustrative Arcella factors, id. at 872-73, 407 P.3d at 346-47, and the principle that school placement is a "broad-ranging and highly fact-specific inquiry" in which the court considers any other relevant factors and exercises discretion in weighting them, id. at 873, 407 P.3d at 347. Rejecting Schaefer's contention that the court considered only factor nine (commute and logistics), the court noted the district court made specific findings on each factor, found most neutral, found factors one, seven, and eight inapplicable given the child's age (five, in kindergarten), and found the parties offered no evidence of meaningful differences between the two schools other than commute. The court found no abuse of discretion, noting White exercises parenting time during the school week. On child support, the court reviewed for abuse of discretion under Edgington v. Edgington, 119 Nev. 577, 588, 80 P.3d 1282, 1290 (2003), and would not disturb underlying factual findings supported by substantial evidence, citing Miller v. Miller, 134 Nev. 120, 125, 412 P.3d 1081, 1085 (2018). The court noted NAC 425.115(3) and NAC 425.140 govern the joint-physical-custody support calculation. A district court may impute income only after determining a parent is underemployed or unemployed without good cause under NAC 425.125(1), and Rosenbaum v. Rosenbaum, 86 Nev. 550, 554, 471 P.2d 254, 256-57 (1970), permits imputation where a party "purposefully earns less than [their] reasonable capabilities permit," with the key issue being the parent's good faith. Given White's testimony that she was seven or eight months pregnant, the district court's finding that late-stage pregnancy made returning to bartending unsuitable was supported by substantial evidence, and declining to impute income was not an abuse of discretion. The court also rejected Schaefer's reading of the "good faith endeavor" findings as foreclosing future modification, observing that White's ability to stay home is only one aspect of evaluating willful unemployment and that nothing in the order precludes a future modification motion upon a change of circumstances that is in the child's best interest, citing Romano v. Romano, 138 Nev. 1, 7, 501 P.3d 980, 985 (2022), abrogated on other grounds by Killebrew, Tr. of Killebrew Revocable Tr. v. State ex rel. Donohue, 139 Nev., Adv. Op. 43, 535 P.3d 1167 (2023). In a footnote, the court addressed the district court's post-appeal January 2024 order changing the school to Cox Elementary based on an emergency basis under Mack-Manley v. Manley, 122 Nev. 849, 856, 138 P.3d 525, 530 (2006), and noted the district court certified its intent to amend the custody decree but lacked jurisdiction during the pending appeal, citing Huneycutt v. Huneycutt, 94 Nev. 79, 575 P.2d 585 (1978). Because Schaefer did not seek a remand and the January 2024 order was not identified in the notice of appeal, those arguments were not properly before the court, citing Collins v. Union Fed. Sav. & Loan Ass'n, 97 Nev. 88, 89-90, 624 P.2d 496, 497 (1981), and NRAP 12A.

In plain language

Michael Schaefer and Robyn White were never married but share one child, M.S., who is about six years old. For most of the child's life, the two parents shared parenting without a court order, and the child lived mainly with White. According to the opinion, this was due in part to Schaefer working in North Dakota for about nine months in 2018 and to his struggles with substance abuse in 2019 and 2020. By 2022, Schaefer mostly saw the child on weekends. After tensions grew between Schaefer and White's new boyfriend, Schaefer filed a custody complaint in March 2023 and eventually asked for sole legal and sole physical custody. White answered and asked for the same for herself. In June 2023, the district court issued a temporary order giving each parent joint legal and joint physical custody on a week-on/week-off basis, and — because the child was about to start kindergarten — temporarily ordered that the child attend the public school in Schaefer's neighborhood, Roger M. Bryan Elementary School. The court told the parties this temporary school choice was essentially a "coin flip" that would be revisited at trial. After an evidentiary hearing in November 2023, the district court entered a final custody decree. It gave the parents joint legal and joint physical custody but structured the parenting time so that Schaefer generally had the child from Friday after school until Monday morning, while White had the child during the school week (with White also having the second weekend of each school month). The court ordered that the child attend the school in White's neighborhood, Aggie Roberts Elementary School. On child support, the court ordered Schaefer to pay White $1,118 per month and did not require White to pay anything, declining to assign ("impute") income to White because she was seven or eight months pregnant, her prior bartending job was not suitable that late in pregnancy, and the court found she was not unemployed without good cause. Schaefer appealed and raised three main complaints. First, he argued the schedule was not really "joint" physical custody because he had the child for less than 40 percent of the year. The appeals court explained that the 40-percent figure is a guideline, not a strict rule, and that the real question is what is in the child's best interest — a question the district court had analyzed in detail and that Schaefer did not directly challenge. Second, he argued the district court chose the school based only on drive time and logistics rather than the full list of factors Nevada courts use. The appeals court found that the district court had actually made specific findings on each factor, found most of them neutral or inapplicable given that the child was only five and in kindergarten, and that the only meaningful difference the parties presented was the commute. Third, he argued the court wrongly refused to treat White as voluntarily unemployed. The appeals court held that White's late-stage pregnancy provided good cause for not working as a bartender, and that nothing in the order prevents Schaefer from later asking to change child support if circumstances change. The appeals court affirmed the district court's decision on all three points.