SENJAB VS. ALHULAIBI (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The court reviewed both subject-matter jurisdiction and statutory interpretation de novo, citing Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704 (2009), and Young v. Nev. Gaming Control Bd., 136 Nev. 584, 586, 473 P.3d 1034, 1036 (2020). It applied a plain-meaning approach, noting that no party argued any exception applied and citing Pelkola v. Pelkola, 137 Nev., Adv. Op. 24, 487 P.3d 807, 809 (2021), for the proposition that the court will not supply arguments not raised. NRS 125.020(2) provides that, "[u]nless the cause of action accrued within the county while the plaintiff and defendant were actually domiciled therein, no court has jurisdiction to grant a divorce unless either the plaintiff or defendant has been resident of the State for a period of not less than 6 weeks preceding the commencement of the action." Prior decisions, most recently Vaile v. Eighth Judicial District Court, 118 Nev. 262, 269-70, 44 P.3d 506, 511 (2002) (quoting Aldabe v. Aldabe, 84 Nev. 392, 396, 441 P.2d 691, 694 (1968)), had treated "residence" as "synonymous with domicile" for divorce jurisdiction. Acknowledging the role of stare decisis and quoting ASAP Storage, Inc. v. City of Sparks, 123 Nev. 639, 653, 173 P.3d 734, 743 (2007), the court concluded that the Vaile rule was "unsound" for three reasons. First, NRS 125.020(2) itself uses "domicile" and "residence" in separate clauses; under the surplusage canon articulated in Berberich v. Bank of America, N.A., 136 Nev. 93, 95, 460 P.3d 440, 442 (2020), the two terms cannot be interpreted as synonymous within the statute. Second, the Ninth Circuit decision relied on by the district court, Park v. Barr, 946 F.3d 1096, 1100 (9th Cir. 2020), itself criticized California authority (In re Marriage of Dick, 18 Cal. Rptr. 2d 743, 746 (Ct. App. 1993)) for "conflat[ing] 'residence' with 'domicile.'" Third, NRS 10.155 supplies a default definition: legal residence "is that place where the person has been physically present within the State or county . . . during all of the period for which residence is claimed." No specific statute provides an alternative definition for divorce. Applying this construction, the court held that the district court's factual finding that Senjab and Alhulaibi had been physically present in Nevada for at least six weeks before the filing satisfies both NRS 125.020(1)(e) and NRS 125.020(2). The court accordingly retreated from the residence-equals-domicile rule and held that "residen[ce]" under NRS 125.020 means "mere residence." The court expressly declined to address the amicus argument concerning whether F-2 visas preclude domicile, the broader domicile question, and the custody and support issues not reached below.

In plain language

Ahed Said Senjab and Mohamad Abulhakim Alhulaibi are Syrian citizens who married in Saudi Arabia and have one child. In 2018, Alhulaibi came to Las Vegas on an F-1 student visa to attend UNLV. In January 2020, Senjab and the child joined him on F-2 dependent visas. Two months later, Senjab filed for divorce in Clark County, also seeking spousal support, child custody, and child support. Alhulaibi moved to dismiss, arguing the Nevada court had no power to hear the case. Nevada's divorce-jurisdiction statute, NRS 125.020, requires that at least one spouse have been a "resident" of Nevada for at least six weeks before filing. Older Nevada Supreme Court decisions had said "residence" in this statute meant the same thing as "domicile" - a true, permanent home where a person intends to stay. Alhulaibi argued that because their student-related visas required them to maintain a foreign residence, they could not legally form the intent to remain in Nevada, so neither spouse could be domiciled here. The district court agreed and dismissed the case. The Nevada Supreme Court reversed. Reading the statute's words plainly, the court held that "residence" means just that - residence - not domicile. The statute itself uses the two terms separately, treating them as different. A separate Nevada statute, NRS 10.155, defines legal residence as the place where a person has been physically present during the period for which residence is claimed. Because the district court had already found that Senjab and Alhulaibi were physically present in Nevada for at least six weeks before the complaint was filed, the residency requirement was met, and the district court had jurisdiction to hear the divorce. The court sent the case back to the district court to proceed with the divorce action. The court did not decide whether F-2 visa holders can or cannot establish domicile, because that question was no longer necessary to resolve the case. The court also did not address the custody and support issues, since the district court had not ruled on them.