SOLINGER VS. SOLINGER (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

**Custody.** Child custody decisions are reviewed for abuse of discretion, Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996), and will not be set aside if supported by substantial evidence, Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). A district court abuses its discretion when its decision is clearly erroneous. Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018). Findings of fact supported by substantial evidence are not disturbed. Bedore v. Familian, 122 Nev. 5, 9-10, 125 P.3d 1168, 1171 (2006). Appellate courts do not determine witness credibility or reweigh evidence. Castle v. Simmons, 120 Nev. 98, 108, 86 P.3d 1042, 1046 (2004). The court rejected Adam's argument that the district court was prejudiced and made unsupported findings, characterizing most of his contentions as challenges to credibility determinations and evidence weighing. Where Adam challenged the district court's findings that the neutral evaluator's report was incomplete and about the rebuttal expert's opinions, he failed to include those reports in the record. See NRAP 30(b)(3). The court presumed the missing portions supported the district court's rulings. Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007). As to NRS 125C.0035(4)(k), the court held the district court did not err by not applying that factor to the boyfriend's abusive conduct because the provision looks to "the parents or another person seeking custody of the child," and the boyfriend was neither. The district court nonetheless properly considered the boyfriend's post-trial conduct within its overall best-interest analysis, because NRS 125C.0035(4) is not an exclusive list. See Snyder v. Walker, No. 85088-COA, 2023 WL 2658074, at *6 (Nev. Ct. App. Mar. 24, 2023) (Order of Affirmance). The court declined to reach Adam's contention that the district court should have extended trial for additional post-trial testimony because he cited no authority requiring it. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). The court acknowledged that two challenged findings - regarding Adam's alleged domestic violence and purported lack of financial support - were clearly erroneous, but held under NRCP 61 that they did not affect Adam's substantial rights, because the district court's thorough best-interest analysis found several factors favored Chalese and still awarded Adam joint physical custody. Even treating the domestic violence factor as neutral or favoring Adam, a majority of factors still favored Chalese. See Ellis, 123 Nev. at 149, 161 P.3d at 242. Adam did not show that but for the alleged error a different result might reasonably have been reached. See Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010). **Child support.** Reviewed for abuse of discretion, Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 985 (2022), which occurs upon an obvious error of law, Franklin v. Bartsas Realty, Inc., 95 Nev. 559, 562-63, 598 P.2d 1147, 1149 (1979), or a clearly erroneous decision, Bautista, 134 Nev. at 336, 419 P.3d at 159, or a finding not supported by substantial evidence, Real Estate Div. v. Jones, 98 Nev. 260, 264, 645 P.2d 1371, 1373 (1982). The district court's finding of $9,799 gross monthly income was unsupported: Adam's financial disclosure reported $7,839.86 per month and his trial testimony of roughly $94,000 per year matched, and Chalese appeared to agree with Adam's figures. The court remanded for recalculation with offsets for any overpayments. **Medical/educational/extracurricular costs.** The court applied Matkulak v. Davis, 138 Nev., Adv. Op. 61, 516 P.3d 667, 671 (2022), holding that separately ordering these costs removes them from the child support calculation under NAC 425.150(1); because these expenses were addressed separately in the decree, no NAC 425.150(1) findings were required. However, the district court was required to make more than conclusory findings supporting the 65 percent allocation - particularly where Adam pays 100 percent of health insurance and the parties had requested an equal split of unreimbursed medical expenses. Lacking an adequate explanation, meaningful appellate review was impossible. See Davis v. Ewalefo, 131 Nev. 445, 450, 452, 352 P.3d 1139, 1142, 1143 (2015); Henry Prods. Inc. v. Tarmu, 114 Nev. 1017, 1020, 967 P.2d 444, 446 (1998). Reversed and remanded. **PERS survivorship interest.** Divorce dispositions, community property dispositions, and separate property handling are all reviewed for abuse of discretion. Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004); Kogod v. Cioffi-Kogod, 135 Nev. 64, 75, 439 P.3d 397, 406 (2019); Smith v. Smith, 94 Nev. 249, 252, 578 P.2d 319, 320 (1978). Property acquired after marriage is presumptively community property under NRS 123.220(1), a presumption rebuttable by clear and convincing evidence. Pryor v. Pryor, 103 Nev. 148, 150, 734 P.2d 718, 719 (1987). Although the argument was not litigated below and was largely developed in the reply brief, the court exercised plain-error discretion to reach it. See City of Las Vegas v. Eighth Judicial Dist. Court, 133 Nev. 658, 660, 405 P.3d 110, 112 (2017); Bradley v. Romeo, 102 Nev. 103, 105, 716 P.2d 227, 228 (1986). The court noted Adam did not rebut the community interest in the PERS account for the period from the start of his Attorney General's Office employment until November 2021. But under Henson v. Henson, 130 Nev. 814, 815-16, 334 P.3d 933, 934 (2014), an allocation of a community property interest in a pension does not, unless specifically set forth in the decree, entitle the nonemployee spouse to survivor benefits. The survivorship interest is not community property, and awarding it created an unequal distribution requiring factual findings - because Adam would continue paying into the account for years after November 2021 while Chalese contributed nothing. See Holguin v. Holguin, No. 81373, 2021 WL 3140576, at *1 (Nev. July 23, 2021) (Order Affirming in Part, Reversing in Part and Remanding); cf. NRS 125.150(1)(b) (compelling reason and written findings required for unequal disposition). The district court made no findings, including why Chalese should be preferred over a future spouse or child, especially given the short period the spouses were married while separated during his state employment. Detailed findings are critical for review, Davis, 131 Nev. at 450, 452, 352 P.3d at 1142, 1143, and an appellate court does not make such findings in the first instance, Ryan's Express Transp. Servs., Inc. v. Amador Stage Lines, Inc., 128 Nev. 289, 299, 279 P.3d 166, 172 (2012). Reversed. **Attorney fees.** Because portions of the decree were reversed and the district court's fee award (of $200,875) rested on a prevailing-party characterization, the award was vacated for reconsideration on remand after proper findings. See Iliescu v. Reg'l Transp. Comm'n of Washoe Cty., 138 Nev., Adv. Op. 72, 522 P.3d 453, 462 (Ct. App. 2022); Halbrook v. Halbrook, 114 Nev. 1455, 1460, 971 P.2d 1262, 1266 (1998). The court addressed one recurring argument: Chalese's fee requests did not violate NRCP 54 because, although that rule requires a fee claim by motion, NRS 18.010(3) permits a court to pronounce its decision on fees at the conclusion of trial without written motion, and both firms filed memorandums of fees and costs before final judgment. The court expressly declined to address Adam's remaining fee-related arguments (including his Brunzell, EDCR 7.60(b), separate-property, and trust-account contentions) at this time. **Expert witness fees.** Under NRS 18.005(5), a prevailing party may recover expert fees of up to $1,500 per witness (max five) unless the court determines circumstances required a larger fee. A decision to exceed $1,500 is reviewed for abuse of discretion, Frazier v. Drake, 131 Nev. 632, 644, 357 P.3d 365, 373 (Ct. App. 2015), which identifies 12 nonexhaustive factors, id. at 650-51, 357 P.3d at 377-78. The district court awarded $4,750 for the rebuttal expert without properly addressing all required factors, especially given the court's prior appointment of a neutral expert. Reversed and remanded. **Reassignment.** The court declined to direct assignment to a different judge, applying In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988) (a judge's rulings and actions during official proceedings do not establish legally cognizable grounds for disqualification).

In plain language

Adam and Chalese Solinger married in May 2012 and had two young children. Adam filed for divorce in January 2019, and the case took nearly three and a half years to resolve. Trial was held over five nonconsecutive days between May 2021 and March 2022, and eight witnesses testified, including a court-appointed custody evaluator, a rebuttal expert Chalese hired, a private investigator, family members, and both parents' romantic partners. After the trial ended but before the divorce decree was entered, Chalese's boyfriend became violent at the home they shared during her parenting time - he broke a television and threatened to keep her from leaving. Chalese took the children, left, and called the police; the boyfriend was arrested for domestic violence, and Chalese obtained a temporary protection order. Chalese asked to present testimony about this incident, which Adam did not oppose, and the district court considered it in deciding custody. The final decree gave the parents joint legal and joint physical custody on a week-on/week-off schedule, ordered Adam to pay child support, required Adam to pay all of the children's health insurance and 65 percent of their other medical, educational, and extracurricular costs, divided the couple's assets and debts, and awarded attorney fees to Chalese. On appeal, the Court of Appeals agreed with Adam on several money-related points but not on custody. The court affirmed the joint physical custody arrangement. Even though it agreed that two of the district court's findings (about alleged domestic violence by Adam and his supposed lack of financial support for Chalese) were mistaken, it concluded those mistakes did not change the outcome because the district court had done a thorough analysis of the child's best-interest factors and a majority still favored Chalese - yet the court still gave Adam joint physical custody. The court also explained that the statute Adam relied on for considering a partner's violent behavior applies to parents or others seeking custody, and Chalese's boyfriend was neither; but the district court was still allowed to consider the boyfriend's behavior as part of the broader best-interest analysis, and it did. The court found several errors in the financial parts of the decree. On child support, the district court said it used Adam's financial disclosure form and his own statements to find his income, but the number it used ($9,799 per month) did not match the figures in the record (Adam reported about $7,839.86 per month, and both sides agreed he earns roughly $94,000 a year). So the court sent the child support calculation back to be redone, with credit for any overpayments. On the 65 percent share of the children's medical, educational, and extracurricular costs, the court found the district court had not adequately explained its reasoning, especially since Adam already pays 100 percent of the children's health insurance and both parents had asked to split unreimbursed medical costs equally. Without a real explanation, the appeals court could not review the decision, so it reversed and sent it back. On the pension, the district court had awarded Chalese a "survivorship interest" in Adam's future state pension (PERS) and required him to choose a payout option that keeps paying a beneficiary after his death. The Court of Appeals explained that a survivorship interest is not itself community property, and giving Chalese this benefit was an unequal division of property because Adam would keep paying into the account for years after the marriage ended while Chalese contributed nothing. The district court had not made the findings needed to justify that unequal division - including why Chalese should be preferred over a possible future spouse or child - so the court reversed that award. Because the attorney-fee award (about $200,875) rested partly on the district court calling Chalese the "prevailing party," and because parts of the decree were being reversed, the court vacated the fee award so it could be reconsidered on remand. The court did reject one of Adam's fee arguments now, holding that Chalese's fee requests complied with the rules because her firms filed memorandums of fees and costs before final judgment. The court declined to reach Adam's other fee-related arguments at this time. On expert witness fees, the court reversed the $4,750 award for Chalese's rebuttal expert because the district court did not properly address all the required factors, particularly given that a neutral expert had already been appointed by the court. Finally, the court refused to order that a different judge handle the case on remand, explaining that a judge's rulings and actions during official proceedings are not, by themselves, grounds for disqualification.