SLADER VS. COLLEY (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Jurisdiction. The court dismissed the portions of the appeal challenging trial bifurcation, alimony, and child support because no final judgment exists - the community property and debt division remains unresolved. A final judgment "resolves all of the parties' claims and rights in the action, leaving nothing for the court's future consideration except for post-judgment issues." Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000); see NRAP 3A(b)(1); Brown v. MHC Stagecoach, LLC, 129 Nev. 348, 345, 301 P.3d 850, 851 (2013). The July 14, 2023, order was appealable under NRAP 3A(b)(7) as an order that "finally establishes or alters the custody of minor children," and the custody rulings in the decree were reviewable in that appeal. Cf. Consol. Generator-Nev., Inc. v. Cummins Engine Co., Inc., 114 Nev. 1304, 1312, 971 P.2d 1251, 1256 (1998). The court rejected Cheryl's request to convert the appeal to an original writ petition for lack of cogent argument and authority, Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006), and because the availability of an appeal from the custody order is an adequate legal remedy, citing Pan v. Eighth Jud. Dist. Ct., 120 Nev. 222, 224, 88 P.3d 840, 841 (2004) ("the right to appeal is generally an adequate legal remedy that precludes writ relief"). Record deficiencies. Cheryl's challenges to the time allotted for discovery and the three-hour trial failed because she omitted the relevant discovery and pretrial orders, motions, and transcripts; under Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007), the appellant is responsible for an adequate record, and missing documents are presumed to support the district court's decision. The same presumption applied to her substantial-evidence and domestic-violence challenges because she omitted her answer and counterclaim, pretrial memorandum, admitted trial exhibits, and portions of transcripts showing her arguments below, making it impossible to determine what arguments were preserved. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). The court also upheld the district court's decision striking exhibits Cheryl filed with her post-trial closing brief, which did not contain exhibits admitted at trial; on appeal she failed to cogently argue an abuse of discretion. See Edwards, 122 Nev. at 330 n.38, 130 P.3d at 1288 n.38. Merits standard and application. Child custody decisions are reviewed for abuse of discretion and affirmed if supported by substantial evidence - evidence a reasonable person may accept as adequate to sustain a judgment. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). The sole consideration is the best interest of the child, NRS 125C.0035(1); Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015), and the district court is presumed to have properly exercised its discretion, Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). Under NRS 125C.003, a "court may award primary physical custody to a parent if the court determines that joint physical custody is not in the best interest of a child," and joint physical custody is presumed not in the child's best interest upon a finding, by clear and convincing evidence after an evidentiary hearing, of domestic violence. NRS 125C.003(1)(c). The district court found most NRS 125C.0035(4) factors equal or inapplicable, identified NRS 125C.0035(4)(h) (the nature of the child's relationship with each parent) as "the tiebreaker," and found the domestic-violence evidence did not satisfy the clear-and-convincing standard. The Court of Appeals held the limited record - the partial trial transcripts - showed substantial evidence supporting these findings and declined to reweigh evidence or credibility. See Ellis, 123 Nev. at 149, 152, 161 P.3d at 242, 244; Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000). NRS 125C.003(1)(a) argument. The court rejected Cheryl's contention that an award of primary physical custody requires an express finding that the other parent is unable to care for the child for over 146 days per year, holding that "the language of NRS 125C.003(1)(a) does not require the district court to find a parent is unable to take care of a child for over 146 days per year to award primary physical custody," and that the best-interest determination controls.

In plain language

Cheryl Slader and Cory Colley married in 2007 and have one child. Cory filed for divorce in 2019, and after a trial on custody issues, the district court entered a divorce decree in June 2022 that gave both parents joint legal custody but gave Cory primary physical custody, with parenting time for Cheryl. The decree left some things unfinished - the holiday and parenting-time schedule, and the division of the couple's property and debts. Cheryl tried to appeal that decree right away, but the Nevada Supreme Court dismissed the appeal because the decree was not a "final" order that could be appealed. In July 2023, a different district judge entered an order finishing the custody scheduling issues, and Cheryl appealed again. The Court of Appeals first sorted out what it could and could not review. Because the property-and-debt issues still had not been resolved, there was no final judgment in the case, so the court dismissed the parts of Cheryl's appeal that challenged the bifurcation (splitting) of the trial and the alimony and child support decisions - it had no jurisdiction over those. But a court rule, NRAP 3A(b)(7), allows an appeal from an order that "finally establishes or alters the custody of minor children," so the court could review the custody rulings. The court also declined Cheryl's request to convert the appeal into a petition for a writ of prohibition (an extraordinary court order directed at a lower court), because she cited no supporting authority and because she could already appeal the custody order. On the merits, the court repeatedly ran into a problem with the appellate record - the set of documents an appellant must give the appeals court. Cheryl did not include the district court's discovery or pretrial orders, her answer and counterclaim, her pretrial memorandum, or the trial exhibits. Under Nevada law, when an appellant leaves out documents the appeals court needs, the court presumes the missing documents support the lower court's decision. That presumption defeated her arguments about discovery time, the three-hour trial limit, and much of her evidence-based challenge to the custody ruling. On the custody decision itself, the district court had weighed the statutory "best interest of the child" factors and found most of them equal or inapplicable, but concluded that the nature of the child's relationship with each parent "is the tiebreaker" - the child reported feeling comforted and validated with his father and found his mother "argumentative and unrelenting." Cheryl also argued that Cory had committed domestic violence, which under Nevada law can create a presumption against awarding custody to that parent - but only if proved by clear and convincing evidence after an evidentiary hearing. The district court found her evidence (video without audio that did not show the alleged incident, a notarized letter, and a couples' therapist's testimony about an aggressive outburst in a counseling session) did not meet that standard. The Court of Appeals held that, on the limited record before it, substantial evidence supported those findings, and it would not reweigh evidence or credibility on appeal. Finally, Cheryl argued the district court had to make an express finding under NRS 125C.003(1)(a) that she was unable to care for the child at least 146 days per year before awarding primary physical custody to Cory. The Court of Appeals disagreed, explaining that the statute does not require such a finding and that the sole consideration in a custody determination is the child's best interest. The court affirmed the custody determination.