STEWART VS. STEWART (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

**Custody.** The court reviewed the custody determination for abuse of discretion, citing Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009), overruled on other grounds by Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 984 (2022). The sole consideration is the best interest of the child under NRS 125C.0035(1), and the order "must tie the child's best interest, as informed by specific, relevant findings respecting the [best interest factors] and any other relevant factors, to the custody determination made," per Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015). Sandra argued the district court failed to make findings that her actions adversely impacted the children. The court held that although the best interest factors are nonexhaustive (NRS 125C.0035(4); Nance v. Ferraro, 134 Nev. 152, 158, 418 P.3d 679, 685 (Ct. App. 2018)), Sandra cited no authority requiring such a specific finding, and thus did not demonstrate entitlement to relief under Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). The court rejected Sandra's argument that the custody ruling was punitive, citing Sims v. Sims, 109 Nev. 1146, 1149, 865 P.2d 328, 330 (1993), and found the record showed a detailed best interest analysis: eight of twelve factors favored Curtis, with the remaining four neutral or inapplicable. The court addressed the domestic violence factor under NRS 125C.0035(4)(k), (5), noting the district court declined to apply the rebuttable presumption against joint custody because Sandra's own history of domestic violence was not proven by clear and convincing evidence, but nevertheless weighed the factor for Curtis. Finding substantial evidence, the court affirmed. Because the custody determination was affirmed and child support was not challenged, the child support award was also affirmed as waived under Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011). **Alimony.** Reviewing for abuse of discretion under Kogod v. Cioffi-Kogod, 135 Nev. 64, 66, 439 P.3d 397, 400 (2019), the court held that a district court must consider the eleven factors in NRS 125.150(9) when determining whether alimony is just and equitable, citing Devries v. Gallio, 128 Nev. 706, 711-13, 290 P.3d 260, 264-65 (2012), and that where the court does not indicate adequate consideration of the factors, remand is required under Forrest v. Forrest, 99 Nev. 602, 606, 668 P.2d 275, 278 (1983). The district court awarded $1,000 per month for six months but included no analysis of the relevant factors. Citing Davis, 131 Nev. at 450, 352 P.3d at 1142, and In re Parental Rights as to C.C.A., 128 Nev. 166, 169, 273 P.3d 852, 854 (2012), the court reversed and remanded for the statutory analysis under NRS 125.150(9). The parties agreed on appeal that the $6,000 award, referred to inconsistently in the decree as both alimony and an equalization payment, was in fact alimony. **Community property.** Under NRS 125.150(1)(b), a court must make an equal disposition of community property but may make an unequal disposition "as it deems just if the court finds a compelling reason to do so and sets forth in writing the reasons for making the unequal disposition." Review is for abuse of discretion under Kogod, 135 Nev. at 75, 439 P.3d at 406. The district court awarded Curtis the marital residence to provide the children a stable home during the COVID-19 pandemic but failed to explain why that award could not be offset by other assets or future payments to give Sandra an equal share, and failed to calculate Sandra's share of the residence. The court held this failure to provide adequate written findings was an abuse of discretion. The court further held it was improper for the district court to offset the unequal distribution by crediting the $38,661.25 in attorney fees and child support arrears awarded to Curtis toward Sandra's community share, because those amounts were not part of the community estate. The court reversed and remanded, expressing no opinion on the ultimate division and noting nothing prohibited awarding the residence to Curtis upon proper reconsideration. **Attorney fees.** The court addressed the fee award under NRS 125.150(4), which permits an award of "a reasonable attorney's fee to either party to an action for divorce." Although the court could summarily reverse the fee award given its disposition, citing Frederic & Barbara Rosenberg Living Tr. v. MacDonald Highlands Realty, LLC, 134 Nev. 570, 571, 427 P.3d 104, 106 (2018), it held the district court abused its discretion by awarding fees without complying with Miller v. Wilfong, 121 Nev. 619, 623, 119 P.3d 727, 730 (2005), which requires both consideration of the Brunzell factors (Brunzell v. Golden Gate National Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969)) and consideration of "the disparity in income of the parties when awarding fees." The court reversed the fee award for reconsideration on remand.

In plain language

Sandra and Curtis Stewart married in 2010 and have three minor children. During the marriage, Curtis worked in mining and Sandra was a stay-at-home mother. In 2018, Curtis filed for divorce and asked for sole custody of the children, saying Sandra was unfit because of mental health issues, addiction, and erratic behavior. Sandra responded by asking for joint custody, child support, and alimony (financial support paid by one former spouse to the other). After years of contested custody litigation, the case went to trial in January 2021. The trial judge awarded Curtis sole legal and primary physical custody and gave Sandra supervised parenting time. The judge also decided Sandra had been deliberately earning less than she could ("willfully underemployed"), assigned her an assumed income for calculating child support, ordered her to pay a small amount in child support arrears (past-due support), awarded her a limited amount of alimony, and awarded Curtis a large sum in attorney fees. When dividing the couple's property, the judge gave Curtis the marital home and most of the vehicles, tools, and guns, while making Curtis responsible for the community debt, and gave Sandra a retirement account and one handgun. Sandra appealed, challenging almost everything. The Court of Appeals split its decision. On custody, the court sided with the trial judge. Sandra argued the judge did not make enough findings and that the judge was really punishing her rather than protecting the children. The Court of Appeals disagreed, explaining that the trial judge had gone through the statutory "best interest of the child" factors in detail, found that eight of twelve favored Curtis, and grounded the decision in concerns such as alleged domestic violence in Sandra's home and Sandra's arrest for driving under the influence with a crash during her parenting time. Because the decision was supported by the evidence and was not made to punish Sandra, the court affirmed it. The court also noted Sandra did not challenge the child support ruling on appeal, so that ruling was treated as waived and affirmed too. On the other three issues, the court found problems and sent them back to the trial court. First, on alimony, the trial judge did not explain how it applied the eleven factors the law requires, so the appeals court reversed the alimony award and ordered the trial court to do the required analysis. Second, on the division of property, the judge gave Curtis a much larger share without adequately explaining why an unequal split was justified, and never calculated what Sandra's share of the marital home would be. The court also said the judge improperly tried to balance things out by treating attorney fees and child support arrears as if they were part of the couple's shared property, which they were not. So the court reversed the property division and sent it back. Third, on attorney fees, the judge awarded Curtis fees without going through the required legal factors, including the difference in the parties' incomes, so the court reversed that too.