SOLDO-ALLESIO VS. FERGUSON

Statutes cited

Key holdings

Practitioner summary

Standard of review. The Court of Appeals reviews a child custody order for abuse of discretion, Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007); Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 284 (Ct. App. 2023). Factual findings are upheld if supported by substantial evidence, but "deference is not owed to legal error, or to findings so conclusory they may mask legal error," Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). Evidentiary rulings are reviewed for abuse of discretion. M.C. Multi-Family Dev., L.L.C. v. Crestdale Assocs., Ltd., 124 Nev. 901, 913, 193 P.3d 536, 544 (2008); LVMPD v. Yeghiazarian, 129 Nev. 760, 764-65, 312 P.3d 503, 507 (2013). Two evidentiary standards under NRS Chapter 125C. The court clarified that NRS Chapter 125C contains two distinct evidentiary thresholds for domestic violence in custody disputes: (1) Rebuttable presumption: To trigger the rebuttable presumption against awarding sole or joint physical custody to a perpetrator of domestic violence, the court must find domestic violence by clear and convincing evidence. NRS 125C.003(1); NRS 125C.0035(5); NRS 125C.230(1). The court further observed that, although these statutes only explicitly reference "sole or joint physical custody," it logically follows that the presumption applies to primary physical custody as well, citing Ramos v. State, 137 Nev. 721, 722, 499 P.3d 1178, 1180 (2021), to avoid an absurd result. (2) Best interest factor: When evaluating domestic violence as a best interest factor under NRS 125C.0035(4)(k), the standard is preponderance of the evidence. The statute is silent as to a standard, and "preponderance of the evidence is still the default evidentiary standard in family law absent clear legislative intent to the contrary." Monahan v. Hogan, 138 Nev. 58, 69, 507 P.3d 588, 597 (Ct. App. 2022); see also Mack v. Ashlock, 112 Nev. 1062, 1066, 921 P.2d 1258, 1261 (1996). The court relied on Franklin v. Franklin, No. 84334, 2024 WL 3085490 (Nev. June 20, 2024), as illustrating that domestic violence may be established by a preponderance for the best interest factor even when not established by clear and convincing evidence for the presumption. Application. The district court applied the clear-and-convincing standard to both the rebuttable presumption and the best interest factor, which was legal error under Davis, and an abuse of discretion under Lewis v. Lewis, 132 Nev. 453, 459-60, 373 P.3d 878, 882 (2016) (requiring specific findings on best interest factors). The error was not harmless given indications that E.F. may have been present during the January 2022 incident, see Roe, 139 Nev., Adv. Op. 21, 535 P.3d at 284; Nance v. Ferraro, 134 Nev. 152, 159, 418 P.3d 679, 685 (Ct. App. 2018), and reversal was required because the court could not conclude the result would have been the same. In re Guardianship of B.A.A.R., 136 Nev. 494, 500, 474 P.3d 838, 844 (Ct. App. 2020); Crosier v. Crosier, No. 87206-COA, 2024 WL 4660838 (Nev. Ct. App. Oct. 31, 2024); cf. NRCP 61. No conviction required. The district court appeared to treat Ferguson's lack of a domestic violence conviction as dispositive. The Court of Appeals held that a criminal conviction, which requires proof beyond a reasonable doubt under NRS 175.191, is not required to find civil domestic violence under NRS Chapter 125C. See Kuhn v. Danes, 821 A.2d 335, 338 (Del. Fam. Ct. 2001); cf. Myers v. Haskins, 138 Nev. 553, 561-62, 513 P.3d 527, 535 (Ct. App. 2022). A victim's testimony alone may suffice even under the higher clear-and-convincing standard. Cf. Franklin, 2024 WL 3085490, at *2. Exclusion of trial exhibits as a discovery sanction. The court held that excluding trial exhibits as untimely operates as a discovery sanction, citing Lopez v. Lopez, 139 Nev., Adv. Op. 54, 541 P.3d 117, 128-29 (Ct. App. 2023), and Pizarro-Ortega v. Cervantes-Lopez, 133 Nev. 261, 265, 396 P.3d 783, 787 (2017). In custody actions between unmarried persons, NRCP 16.205 governs disclosure, and NRCP 16.205(g) mandates an award of sanctions for failure to disclose unless the violator shows good cause or undue hardship by a preponderance of the evidence; the court must impose an "appropriate sanction" and consider alternative remedies. NRCP 37(c)(1)(C) likewise requires the court to consider whether the failure was substantially justified or harmless before precluding evidence, and permits sanctions under NRCP 37(b)(1)(B). The district court here did not undertake either analysis. Cf. Eby v. Johnston Law Office, P.C., 138 Nev. 660, 672, 518 P.3d 517, 528 (Ct. App. 2022). Harmlessness considerations. Some of the excluded materials - including the TPO, its extension, four of the police reports, and the photographs - had been previously disclosed in connection with Soldo-Allesio's countermotion for custody during the discovery period, supporting an argument that any late disclosure was harmless. See Sheehan & Sheehan v. Nelson Malley & Co., 121 Nev. 481, 492-93, 117 P.3d 219, 226-27 (2005); Camp Bird Colo., Inc. v. Bd. of Cnty. Comm'rs, 215 P.3d 1277, 1292 (Colo. App. 2009); cf. NRCP 61. The Court of Appeals also reiterated that "[a] district court must hear all information regarding domestic violence in order to determine the child's best interests," quoting Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004), and that custody decisions should be resolved on the merits, citing Blanco v. Blanco, 129 Nev. 723, 730, 311 P.3d 1170, 1174 (2013). Authentication, hearsay, and judicial notice. The court flagged for remand that NRCP 16.205(i) requires written objection to authenticity within 21 days, after which documents are presumed authentic. See also Rodriguez v. State, 128 Nev. 155, 162, 273 P.3d 845, 849 (2012). Police reports may be admissible as business records under NRS 51.135(1), Miranda v. State, 101 Nev. 562, 566, 707 P.2d 1121, 1124 (1985), overruled on other grounds in Bejarano v. State, 122 Nev. 1066, 146 P.3d 265 (2006), but the business records exception does not by itself permit introduction of the substance of witness statements within the report. Certain statements in the reports may nonetheless be admissible as nonhearsay, see, e.g., NRS 51.035(2)(a). The district court may also take judicial notice of the TPO proceedings under Mack v. Est. of Mack, 125 Nev. 80, 91-92, 206 P.3d 98, 106 (2009); see also Phillips v. Phillips, Nos. 82414 & 82693, 2022 WL 1302184 (Nev. Apr. 29, 2022). Credibility findings insufficient to affirm. While appellate courts do not reweigh credibility, Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009), the district court's credibility assessments could not save the decree because the court might have weighed credibility differently under the correct legal standards. Local rules note. Although EDCR 5.506(b), EDCR 5.219, and EDCR 7.60 address admissibility and sanctions, the court analyzed the issue under NRCP 16.205 and NRCP 37(c), citing Nev. Power v. Fluor Ill., 108 Nev. 638, 643 n.4, 837 P.2d 1354, 1358 n.4 (1992), for the principle that district court rules must be consistent with the NRCP.

In plain language

Cheyenne Soldo-Allesio and Kevin Alan Ferguson were never married but share a young child, E.F. After their final separation in February 2022, Soldo-Allesio obtained a temporary protective order (TPO) - a short-term court order intended to protect a person from alleged abuse - against Ferguson based on allegations of domestic violence and moved with E.F. to Florida. Ferguson then filed for primary physical custody in Nevada. Soldo-Allesio responded that Ferguson had a long history of domestic violence, attaching exhibits including the TPO and its extension, police reports, and photos of injuries. At trial, the district court excluded all of Soldo-Allesio's exhibits, mainly because she disclosed her trial exhibit list only three days before trial. Soldo-Allesio still testified about several incidents of alleged abuse. The court ultimately found there was no "clear and convincing evidence" of domestic violence and largely awarded the custody outcome Ferguson requested. Soldo-Allesio asked the court to reconsider, arguing it had used the wrong burden of proof on the domestic violence question and had wrongly thrown out all her exhibits. The district court denied that motion. The Court of Appeals reversed. It explained that Nevada law uses two different burdens of proof when domestic violence comes up in a custody case. To trigger the legal "rebuttable presumption" - a starting assumption a parent can try to overcome - that an abuser should not get custody, the abuse must be proven by "clear and convincing evidence" (a high standard). But when the court is simply weighing domestic violence as one of the statutory "best interest" factors used to choose a custody arrangement, the standard is the lower "preponderance of the evidence" (more likely than not). The district court used the higher standard for both purposes, which the Court of Appeals held was legal error. The Court of Appeals also held that the district court was wrong to suggest Soldo-Allesio needed to show Ferguson had been criminally convicted of domestic violence. A criminal conviction is not required to prove domestic violence in a civil custody case; a victim's testimony alone can be enough. Finally, the Court of Appeals concluded that excluding all of Soldo-Allesio's exhibits effectively was a discovery sanction, and the district court did not follow the rules (NRCP 16.205(g) and NRCP 37(c)) governing such sanctions - rules that require the court to consider whether the failure to disclose was justified or harmless and whether exclusion is an appropriate penalty. That mattered especially because some of the excluded exhibits had already been served on Ferguson earlier in the case, and because the Nevada Supreme Court has said courts must hear "all information regarding domestic violence" when deciding what is best for a child. The case was sent back to the district court to apply the right legal standards and reconsider the evidence.