STUCKE VS. STUCKE (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's disposition of community property and its child custody determination for abuse of discretion, citing Kogod v. Cioffi-Kogod, 135 Nev. 64, 75, 439 P.3d 397, 406 (2019), and Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009). In divorce proceedings, rulings supported by substantial evidence will not be disturbed on appeal, Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004), with substantial evidence defined as "evidence that a reasonable person may accept as adequate to sustain a judgment," Rivero, 125 Nev. at 428, 216 P.3d at 226. **West Maule property.** Property acquired during marriage — or during a domestic partnership, per NRS 122A.200(1)(a) — is community property except for limited exceptions, NRS 123.220. The court held that West Maule was community property because it was acquired after the parties entered their domestic partnership; David's contention that the sale finalized in March (when he signed the purchase agreement) rather than July was unsupported by relevant authority and not cogently argued, so the court declined to consider it under Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). On the requested Malmquist apportionment, the court explained that a Malmquist apportionment is available only where "either separate property has increased in value through community efforts, or conversely, community property value has been enhanced by separate property contributions," Kerley v. Kerley, 111 Nev. 462, 466, 893 P.2d 358, 360 (1995). David neither argued below nor on appeal that his separate contributions enhanced the property's value, and identified nothing in the record establishing such enhancement; the district court could therefore have found the evidence insufficient to perform the apportionment. The court noted in a footnote that unequal disposition to reimburse David under NRS 125.150(1)(b) or (2) was available in the district court's discretion, but David did not request it below or argue for it on appeal, so it was waived under Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981), and Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011). **Birkland property.** Marital property is not community property where "[a]n agreement in writing between the spouses" provides otherwise, NRS 123.220(1), and "[t]ransmutation from separate to community property must be shown by clear and convincing evidence," Sprenger v. Sprenger, 110 Nev. 855, 858, 878 P.2d 284, 286 (1994). David purchased Birkland with separate funds, and Christie signed vesting instructions titling it in David as "A Married Man as his Sole and Separate Property." The district court found the property was initially David's separate property and that transferring it to JD Investments, LLC, did not transmute it. Christie pointed to nothing establishing transmutation by clear and convincing evidence, so substantial evidence supported the ruling and there was no abuse of discretion. The court noted, in a footnote, that NRS 123.220(1) does not require the agreement to take the form of a pre- or post-nuptial agreement, as Christie argued. **Grandview property.** Christie signed a quitclaim deed in October 2017, and title was held in David as "a married man, as his sole and separate property." The district court found no evidence that community funds satisfied the debt and found David spent more than $80,000 of separate funds while proceeds equaled only $63,077.55. Christie did not argue that the initial designation as separate property was error, provided no authority for placing the burden on David to prove no community funds paid the mortgage, and had argued below only that the property was community property. The court declined to consider the argument under Edwards and Old Aztec Mine. On the merits, substantial evidence supported the ruling, particularly because Nevada law "consistently held that a spouse to spouse conveyance of title to real property creates a presumption of gift that can only be overcome by clear and convincing evidence," Kerley v. Kerley, 112 Nev. 36, 37, 910 P.2d 279, 280 (1996). **Marital waste.** A district court must make an equal disposition of community property absent a compelling reason under NRS 125.150(1)(b), and marital waste can supply that compelling reason, Lofgren v. Lofgren, 112 Nev. 1282, 1283, 926 P.2d 296, 297 (1996). Dissipation "generally... refers to one spouse's use of marital property for a selfish purpose unrelated to the marriage in contemplation of divorce or at a time when the marriage is in serious jeopardy or is undergoing an irretrievable breakdown," Kogod, 135 Nev. at 75-76, 439 P.2d at 406-07. The district court heard conflicting testimony about Christie's gambling (including her advantage-gambling and use of promotional money) and about alleged business devaluation, found David's financial summaries lacked requisite information and were not reliable for making a finding of waste, and found it impossible to determine an actual amount of waste. Although it found Christie's credibility "questionable," it declined to award a sum certain and instead ordered her responsible for business expenses and tax ramifications. Substantial evidence supported the ruling under Rivero, Kogod, and Williams. **Joint physical custody.** The sole consideration is the best interest of the children, NRS 125C.0035(1), and the court must "consider and set forth its specific findings concerning" the nonexhaustive best interest factors of NRS 125C.0035(4)(a)-(l), which permits consideration of unenumerated factors as well, see Nance v. Ferraro, 134 Nev. 152, 158, 418 P.3d 679, 685 (Ct. App. 2018). The decree "must tie the child's best interest, as informed by specific, relevant findings... to the custody determination made," Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015). The district court made detailed findings on each statutory factor, largely adopted Dr. Paglini's recommendations, found the sexual-abuse and rape allegations unsubstantiated but could not conclude they were fabricated for secondary gains — a credibility finding not reweighed on appeal under Ellis v. Carucci, 123 Nev. 145, 152, 161 P.3d 239, 244 (2007). The court acknowledged that "a different court may have reached a different conclusion" but found the order supported by substantial evidence, sufficiently thorough and specific under Nance, and tied to the custody determination under Davis; there was no abuse of discretion. **Custody designation.** A court may designate an arrangement as joint physical custody even if one parent's timeshare falls below 40 percent, if joint custody is in the child's best interest, Bluestein v. Bluestein, 131 Nev. 106, 109, 345 P.3d 1044, 1046 (2015), and 40 percent (at least 146 days per calendar year) may serve as a guideline, Bluestein, 131 Nev. at 112-13, 345 P.3d at 1048-49. Courts presume the district court properly exercised its discretion, Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). David provided no relevant authority and did not cogently argue error (declined under Edwards); on the merits, Christie had the children roughly 40 percent of the time and more than 146 days per year under the 4/3 schedule, which was appropriately designated joint physical custody. **Child support / imputation.** District courts may impute income to an obligor who is underemployed or unemployed without good cause, NAC 425.125; Rosenbaum v. Rosenbaum, 86 Nev. 550, 554, 471 P.2d 254, 256-57 (1970). The district court did not reach whether Christie was underemployed; rather, it found her disclosed income (figures ranging from $4,100 to $7,233) unreliable and "almost impossible to discern," implicitly found she could earn more, and set both parties' income at David's $8,333 monthly figure, ordering equal support netting to zero — thereby imputing income to Christie, contrary to David's argument. The court declined to address the exact amount imputed in the first instance because David provided no figures or calculations below or on appeal, citing 9352 Cranesbill Tr. v. Wells Fargo Bank, N.A., 136 Nev. 76, 82, 459 P.3d 227, 232 (2020). On the merits, the district court added $1,100 to Christie's highest disclosed figure to equalize income; substantial evidence supported that finding, and there was no abuse of discretion. Christie did not appeal the imputation of income to her.

In plain language

David and Christie Stucke entered a domestic partnership in May 2015, married in May 2016, and have two children together. After about two and a half years of marriage, David filed for divorce. The case was, in the district court's words, "hotly contested and litigated," with a five-day trial that included testimony from both spouses and a jointly retained custody expert, psychologist Dr. John Paglini. Both sides asked the appeals court to review parts of the final divorce decree. The disputes fell into two groups: how property was split, and how the children's custody and support were handled. On property, David argued that a house on West Maule Avenue should not have been divided equally. He said he had used his own money — poker winnings earned before the domestic partnership — for the down payment and for repairs, and that the house was meant to stay his. Because the parties acquired the house after entering their domestic partnership, the law presumed it was community property (property both partners own together). David wanted the court to use a formula from an older Nevada case, called Malmquist, to give him credit for his separate contributions. The appeals court explained that this formula only applies when separate property increased in value through community effort, or community property increased in value because of separate contributions. David never argued that his contributions increased the home's value, and he did not provide the supporting evidence needed to run that calculation. So the court upheld the equal division. Christie, in turn, challenged the district court's decision to give David all the sale proceeds from two other houses — one on Birkland Court and one on Grandview Place — as his separate property. For the Birkland property, David had bought it with separate funds and set up a rental business through an LLC; Christie had signed paperwork acknowledging the house was David's separate property. The law says that once property is separate, turning it into community property ("transmutation") must be proven by clear and convincing evidence — a high standard. Christie did not point to anything in the record meeting that standard, so the appeals court upheld that award. For the Grandview property, Christie had signed a quitclaim deed giving up any interest, David had used pre-marriage retirement funds, and there was no evidence community funds paid the mortgage. Nevada law treats a spouse-to-spouse transfer of real estate as a presumed gift that also requires clear and convincing evidence to undo. The appeals court upheld that award too. David also asked that Christie repay the community for "marital waste" — money he claimed she wasted, mostly through gambling and by allegedly devaluing her businesses. The district court found Christie's credibility about her finances "questionable" but also found it "impossible" to figure out how much money, if any, was actually wasted, partly because David's financial summaries were incomplete and he had no accounting background. Because the court could not determine an actual amount of waste, it declined to order reimbursement (though it did make Christie responsible for the businesses' expenses and taxes). The appeals court found this supported by the evidence and upheld it. On custody, David argued that he should not have to share joint physical custody, pointing out that several of the district court's findings were unfavorable to Christie. The expert, Dr. Paglini, had spent extensive time with the family, produced an 88-page report, found both parents fit, and recommended joint physical custody with roughly a 60/40 split in David's favor. Dr. Paglini noted Christie's unsubstantiated allegations that David had raped her and molested their daughter, and said that if the court found she fabricated those claims for advantage in the divorce, David should get primary custody — but Dr. Paglini himself did not reach a conclusion that she had fabricated them. The district court found the allegations unsubstantiated but also could not conclude Christie had fabricated them. It went through each statutory "best interest" factor and adopted Dr. Paglini's recommendation. The appeals court noted that "a different court may have reached a different conclusion," but concluded this was not an abuse of discretion, and it upheld the joint-custody award. It also upheld the label "joint physical custody" for the roughly 60/40 schedule, because Christie had the children at least 40 percent of the time and more than 146 days per year. Finally, David argued the district court should have imputed more income to Christie and ordered her to pay child support. The court found Christie had not accurately reported her income and that her actual income was "almost impossible to discern." It concluded she could earn at least as much as David, set both incomes at David's monthly figure of $8,333, and ordered equal child support, netting to zero. The appeals court pointed out that the district court had actually imputed income to Christie — the opposite of what David claimed — and that David never provided figures showing what the correct amount should have been. Finding the decision supported by the evidence, the court affirmed the entire judgment.