SEIDLINGER VS. HSIUNG (CHILD CUSTODY)

Key holdings

Practitioner summary

The Court of Appeals reviewed the denial of a motion to modify custody without an evidentiary hearing for abuse of discretion, citing Myers v. Haskins, 138 Nev. 553, 556, 513 P.3d 527, 531 (Ct. App. 2022). A court abuses its discretion if "no reasonable judge could reach a similar conclusion under the same circumstances." Leavitt v. Siems, 130 Nev. 503, 509, 330 P.3d 1, 5 (2014). The court applied the adequate-cause framework: a district court must hold an evidentiary hearing on a motion to modify physical custody if the movant demonstrates "adequate cause," which arises when the movant makes out a prima facie case for modification. Rooney v. Rooney, 109 Nev. 540, 542-43, 853 P.2d 123, 124-25 (1993). A prima facie case requires that the movant show "(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." Romano v. Romano, 138 Nev. 1, 3, 501 P.3d 980, 982 (2022) (internal quotation marks omitted), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev. 401, 535 P.3d 1167 (2023). The changed-circumstances prong rests on res judicata principles and prevents "repetitive, serial motions," requiring that any change "generally have occurred since the last custody determination." Ellis v. Carucci, 123 Nev. 145, 151, 161 P.3d 239, 243 (2007). Demonstrating a prima facie case is "a heavy burden." Myers, 138 Nev. at 560, 513 P.3d at 534. The court reiterated the Myers evidentiary standards governing the prima facie inquiry: the district court "must accept the movant's specific allegations as true," must "generally consider only the properly alleged facts in the movant's verified pleadings, affidavits, or declarations," and "need not consider facts that are irrelevant to the grounds for modification, that are cumulative, or that are impeaching." Myers, 138 Nev. at 556-57, 559, 513 P.3d at 529-30, 532, 533. Courts "are not required to consider a movant's general, vague, broad, or conclusory allegations." Id. at 559, 513 P.3d at 534. Applying these standards, the court found that Julie's motion lacked specific factual allegations regarding Roger's behavior, generally alleging conduct of the type raised before the divorce decree. It credited the district court's determination that "Julie makes vague, nebulous and general allegations" and that the district court evaluated the allegations and supporting documents "[e]ven when the proffered evidence is accepted as true and viewed in a light most favorable to [Julie]." The court found no support in the record for Julie's contentions that the district court made credibility determinations or required admissible evidence. As to the hand-slapping allegation raised in her reply, the court held that a single incident occurring after the motion was filed was insufficient to amount to a substantial change in circumstances, citing the principle that district courts need not "consider allegations which, even if proven, would only permit inferences sufficient to establish grounds for a custody change." Myers, 138 Nev. at 559, 513 P.3d at 533-34. The court concluded Julie failed to demonstrate the district court abused its discretion. On the discovery issue, the court reviewed for abuse of discretion, citing Club Vista Fin. Servs. v. Eighth Jud. Dist. Ct., 128 Nev. 224, 228, 276 P.3d 246, 249 (2012). Under NRCP 16.21(b), postjudgment discovery in family law matters may occur if a court sets an evidentiary hearing or upon a showing of good cause; postjudgment discovery is "generally not permitted in child custody cases without setting a subsequent evidentiary hearing because what is discovered should not be considered in the district court's" hearing determination. Myers, 138 Nev. at 562 n.14, 513 P.3d at 536 n.14. The court invoked Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004), for the presumption that the district court properly exercised its discretion in assessing the children's best interest, and concluded that because no evidentiary hearing was set and Julie failed to show good cause, the denial of postjudgment discovery was not an abuse of discretion. In a footnote, the court noted the district court did not specifically address Julie's NRCP 16.21 discovery request in its orders but effectively denied it by ruling without a hearing, citing Bd. of Gallery of Hist., Inc. v. Datecs Corp., 116 Nev. 286, 289, 994 P.2d 1149, 1150 (2000). To the extent Julie challenged the denial of her motion to amend without a hearing, the court applied the abuse-of-discretion standard from AA Primo Builders, LLC v. Washington, 126 Nev. 578, 589, 245 P.3d 1190, 1197 (2010).

In plain language

This case is about parents disputing custody of their three children after a divorce. Julie Rae Seidlinger and Roger Weibar Hsiung married in 2008 and divorced after Julie filed a complaint in 2018. During the divorce proceedings, Julie alleged that Roger physically, verbally, and emotionally abused the children, which Roger denied. The family went through a child custody evaluation, and the abuse allegations were discussed with the evaluator. Ultimately, the parents agreed to share joint legal and physical custody, and the court approved that agreement as part of the divorce. About three years later, Julie asked the court to change the custody arrangement, requesting that she temporarily be given primary physical custody to keep the children safe. She said the children reported that Roger continued the same troubling behavior she had raised before the divorce, and she attached excerpts from one child's journals, plus other writings and drawings, to support her claim. She acknowledged, however, that she did not have independent proof that Roger committed domestic violence. She also asked the court to allow the children to be interviewed at the Family Mediation Center, believing interviews would give the court insight into the children's experiences. Roger opposed her request, arguing that her allegations were just repeats of what she had said before the divorce. He filed his own request to modify custody, claiming Julie was engaging in "parental alienation" through improper abuse allegations, and asked for primary physical custody himself. In her reply, Julie added an allegation that Roger recently slapped one child's hands to force the child to finish a drawing. The district court denied both parents' requests without holding an evidentiary hearing (a court session where witnesses testify and evidence is examined). The judge found that neither side's allegations were specific enough to justify a hearing. The court also declined to order the children to be interviewed, seeing no advantage in it. After Julie asked the court to reconsider or to make its ruling final so she could appeal, the court added more explanation, again denied her request to change custody, and certified the decision as final. On appeal, Julie argued she had made out a "prima facie case" — meaning enough of a preliminary showing to require a hearing — and that the trial judge wrongly judged her credibility and demanded admissible evidence too early. The Court of Appeals disagreed. It explained that to get a hearing, a parent must show both a substantial change in circumstances affecting the child's welfare since the last custody decision, and that changing custody serves the child's best interest. The court said this is a "heavy burden." It found that Julie's allegations were too vague and general, that they largely repeated her pre-divorce concerns, and that even the single hand-slapping incident — accepted as true — was not enough to amount to a substantial change in circumstances. The court also rejected her discovery argument, noting that postjudgment discovery generally is not allowed in custody cases unless a hearing is set or good cause is shown, and neither applied here. The court affirmed the district court's decision.