SILVA FILHO VS. BELAY DA SILVA

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's child support order for an abuse of discretion, deferring to and upholding findings that are not clearly erroneous and are supported by substantial evidence. Hargrove v. Ward, 138 Nev. 116, 117, 506 P.3d 329, 331 (2022); Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009); Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). The court noted it does not defer "to legal error or to findings so conclusory that they may mask legal error." Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). Questions of statutory construction are reviewed de novo, and where a statute's language is plain, the court applies that plain language. Miller v. Miller, 134 Nev. 120, 122, 412 P.3d 1081, 1083 (2018); Leven v. Frey, 123 Nev. 399, 403, 168 P.3d 712, 715 (2007). On the entitlement to arrears for December 2013 through July 2016, the court held substantial evidence supported the district court's enforcement of the parties' verbal agreement that Alfredo would pay $600 per month, the amount he proposed in his own custody complaint. Relying on the treatment of pleading concessions as judicial admissions, the court cited Reyburn Lawn & Landscape Designers, Inc. v. Plaster Dev. Co., Inc., 127 Nev. 331, 343, 255 P.3d 268, 278 (2011) (citing Scalf v. D.B. Log Homes, Inc., 128 Cal.App.4th 1510, 27 Cal.Rptr.3d 826, 833 (2005)), and Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). Because Alfredo's complaint was not in the record, the court applied NRAP 30(b)(3) and Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007), presuming the missing portions supported the district court's decision. On the statute of limitations, the court applied NRS 125B.050(1), which provides that where there is no court order for support, a written demand mailed to the last known address of the noncustodial parent tolls the running of the statute of limitations. The court concluded Cristiane initiated an action for child support with her 2013 complaint, which was personally served on Alfredo, and that her May 2016 opposition and countermotion mailed to Alfredo qualified as a demand under the statute. On the pre-June 2016 recovery period, the court applied NRS 125B.030, which permits a physical custodian to recover not more than four years' support furnished before bringing the action in the absence of a court order. The court determined the arrears from December 2013 through July 2016 fell within four years before the district court first granted child support in its June 27, 2016, order, and were therefore not barred by NRS 125B.030. The court declined to reach Alfredo's laches argument because it was raised for the first time on appeal, citing Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981), while noting it was not persuaded on the merits in any event. The court did not address the attorney fees and costs issue because the appeal from that order was not before it, citing NRAP 3A(b)(8). On calculation, the court held the district court erred. Both parties agreed the second amended schedule of arrears correctly calculated arrears at $27,600 and interest at $9,128.41, whereas the order found $47,160 in arrears and $24,360 in interest. The record was also unclear whether the $14,890 lump sum from Alfredo's America's Got Talent earnings had already been paid such that it should not have been part of the obligation. The court reversed and remanded in part for correct calculation.

In plain language

Alfredo and Cristiane have two children together but never married. When their relationship ended, the children lived with Cristiane while Alfredo lived in Australia working as a circus performer. In December 2018, Cristiane filed a complaint asking for child custody, future child support, and arrears (past-due child support) dating back to 2007. Alfredo also filed his own custody complaint, in which he proposed paying $600 per month in child support. The district court combined the two cases. Because Alfredo was in Australia and did not answer, the court entered a default order in May 2014 giving Cristiane custody but leaving child support unresolved. After Alfredo moved to Las Vegas in 2016, the court granted him parenting time and set his child support at $600 per month in a June 27, 2016, order. Cristiane also filed a separate motion to review arrears going back to January 2014, but the court vacated that hearing. Alfredo then moved to reduce his support to $300, and at an August 18, 2016, hearing the court reduced his support and ordered him to pay $30 per month toward arrears. The written order from that hearing was not filed until June 2017 and left out language the court had stated at the hearing about how Cristiane should pursue arrears. In April 2022, Cristiane asked the court to hold Alfredo in contempt for failing to pay arrears and to modify his support based on his income. In August 2022, she asked the court to amend the August 2016 order to make clear she was entitled to arrears. Alfredo opposed, arguing the statute of limitations (a legal deadline for bringing a claim) had run out. After an October 2022 evidentiary hearing, the court amended the 2016 order "nunc pro tunc" - a Latin phrase meaning "now for then," used to correct a record to reflect what was actually decided earlier - to add the language that Cristiane could seek arrears. The court found the parties had a verbal agreement that Alfredo would pay $600 per month, that he was current until December 2013, and that he owed $47,160 in arrears plus $24,360 in interest. It also awarded $14,890 as a lump sum from Alfredo's "America's Got Talent" earnings and said attorney fees and costs were warranted. On appeal, the Court of Appeals agreed with the district court that Cristiane was entitled to arrears for December 2013 through July 2016. The court explained that the parties had a verbal agreement, that Alfredo had admitted in his own custody complaint that he would pay $600 per month, and that filing deadlines did not bar the claim because Cristiane's 2013 complaint tolled (paused) the statute of limitations. The court declined to consider Alfredo's laches argument because he raised it for the first time on appeal, and did not address the attorney fees issue because the fee order was not part of this appeal. However, the court agreed with both sides that the district court got the math wrong. Both parties agreed that a second amended schedule of arrears correctly listed $27,600 in arrears and $9,128.41 in interest, not the higher $47,160 and $24,360 figures in the order. It was also unclear from the record whether the $14,890 lump sum had already been paid. For those reasons, the court sent the case back for the district court to recalculate the amounts.