SULLIVAN VS. SULLIVAN (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Standard of review. The court reviews the exclusion of expert testimony for abuse of discretion, citing Hallmark v. Eldridge, 124 Nev. 492, 498, 189 P.3d 646, 650 (2008), and reviews child custody determinations deferentially, disturbing them only for a clear abuse of discretion, citing Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (1999), and Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). Review focuses on whether the district court reached its conclusions for the appropriate legal reasons and whether its factual findings were supported by substantial evidence. Threshold appealability. In a footnote, the court noted that an order denying a motion to amend findings of fact and conclusions of law is not appealable under NRAP 3A, citing Casino Operations, Inc. v. Graham, 86 Nev. 764, 765, 476 P.2d 953, 954 (1970) (decided under former NRCP 72(b)), though an amended final order may be appealable under NRAP 4(a)(5) if the amendments substantively alter it. Because the amendments here did not substantively alter the custody determination, and because Tiffany raised the post-trial orders only summarily, the court deemed those arguments waived under Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011), and Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). Exclusion of the court-appointed interviewer. The court held the district court abused its discretion in excluding Dr. Holland's testimony and report, on two independent grounds. First, James's objection was untimely and barred by laches. Relying on Venetian Casino Resort, LLC v. Eighth Jud. Dist. Ct., 118 Nev. 124, 130, 41 P.3d 327, 331 (2002) (a party with constructive or actual knowledge of potentially disqualifying circumstances who fails to object within a reasonable time waives the objection), and the waiver principle traced through Iowa Mining Co. v. Bonanza Mining Co., 16 Nev. 64 (1881), and Wagon Wheel Saloon & Gambling Hall, Inc. v. Mavrogan, 78 Nev. 126, 369 P.2d 688 (1962), the court applied the three-part laches inquiry from Miller v. Burk, 124 Nev. 579, 598, 188 P.3d 1112, 1125 (2008) (inexcusable delay, acquiescence, and prejudice), with supporting citations to Besnilian v. Wilkinson, 117 Nev. 519, 522, 25 P.3d 187, 189 (2001), and Carson City v. Price, 113 Nev. 409, 412, 934 P.2d 1042, 1044 (1997). James knew of the untimely disclosure a month before the hearing, filed no motion in limine, and on the first day of the hearing agreed to take Dr. Holland out of order so her report could be authenticated—conduct that conveyed acquiescence—while the exclusion prejudiced Tiffany and G.S. Second, independent of estoppel, the court invoked Nevada public policy favoring admission of all evidence relating to the child's best interest, relying on Abid v. Abid, 133 Nev. 770, 406 P.3d 476 (2017) ("The court's duty to determine the best interests of a nonlitigant child must outweigh the policy interest in deterring illegal conduct between parent litigants."), and Nance v. Ferraro, 134 Nev. 152, 418 P.3d 679 (Ct. App. 2018). The court noted that Dr. Holland was appointed as a third-party outsourced provider within the meaning of NRCP 16.215(b)(3), so her testimony and report were presumably intended for the court's consideration, see NRCP 16.215(a). By excluding them, the district court "hindered its own inquiry into G.S.'s best interest; in essence, the court improperly sanctioned G.S. for her mother's procedural misstep." Harmless error and substantial evidence. Applying Khoury v. Seastrand, 132 Nev. 520, 539, 377 P.3d 81, 94 (2016) ("To be reversible, an error must be prejudicial and not harmless."), McClendon v. Collins, 132 Nev. 327, 333, 372 P.3d 492, 495-96 (2016), and Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010), the court held the exclusion error harmless. In the NRS 125C.0035(4) analysis, the court concluded that the findings on factor (e) (ability to cooperate) and factor (h) (relationship with each parent) were not supported by substantial evidence—the factor (h) finding was conclusory under Davis v. Ewalefo because it rested on the February 2022 recording without Dr. Holland's anticipated analysis—but that the remaining findings were supported, including conflict between the parents, factor (g) (needs of the child), factor (i) (sibling relationships, neutral), factor (j) (history of neglect and abuse, favoring James), and the "other" considerations (Tiffany's intentional violation of the June 2013 stipulation and order, and the video she sent Martin demonstrating "a level of immaturity and actual cruelty" toward V.H.). The court also emphasized that Tiffany failed to include Dr. Holland's report in the record on appeal, hampering review, citing Carson Ready Mix, Inc. v. First Nat. Bank of Nev., 97 Nev. 474, 476, 635 P.2d 276, 277 (1981), and analogized to Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 295 (Ct. App. 2023) (substantial evidence supporting most best-interest findings justified affirmance despite other significant errors). Judicial bias/reassignment. Because the court affirmed, the reassignment issue was moot; in any event, judges are presumed unbiased, see Millen v. Eighth Jud. Dist. Ct., 122 Nev. 1245, 1254, 148 P.3d 694, 701 (2006), disqualifying bias must stem from an extrajudicial source, see In re Petition to Recall Dunleavy, 104 Nev. 784, 789-90, 769 P.2d 1271, 1275 (1988), and Tiffany showed no "deep-seated favoritism or antagonism," see Canarelli v. Eighth Jud. Dist. Ct., 506 P.3d 334, 336 (2022); Cameron v. State, 114 Nev. 1281, 1283, 968 P.2d 1169, 1171 (1998).

In plain language

Tiffany and James Sullivan divorced in 2012 and agreed to share joint legal and physical custody of their daughter, G.S. Over the following decade, James filed several motions asking the court to give him primary physical custody. The appeal in this case arises from his third such motion, filed in April 2022. James pointed to three alleged changes: an October 2021 domestic violence incident between Tiffany and her then-boyfriend, Martin (who was later convicted of felony aggravated stalking for violating protective orders Tiffany obtained against him); a February 2022 conversation James recorded with G.S., in which the child said Tiffany often left her alone to care for her younger half-sister, did not prepare her meals, and that she would prefer to live with James; and concerns that G.S. was underweight and possibly not eating properly. Before the trial (called an "evidentiary hearing"), the court ordered that G.S. be interviewed by a neutral professional. The parties settled on Dr. Stephanie Holland, who interviewed the child and sent her report to the court. But Tiffany did not formally list Dr. Holland as a witness until after the deadline the parties had agreed to. On the first day of the hearing, James raised no objection—in fact, he agreed to take witnesses out of order so Dr. Holland could testify the next morning. The next morning, however, James objected that Tiffany had disclosed Dr. Holland too late, and the district court agreed, refusing to let Dr. Holland testify or her report come into evidence. After hearing testimony from Martin, a former babysitter, G.S.'s pediatrician, James, and Tiffany, the district court awarded James primary physical custody, finding that five of the statutory "best interest of the child" factors favored James and none favored Tiffany. The Court of Appeals concluded the district court made mistakes—but not mistakes big enough to change the outcome. First, it held that James waited too long to object to Dr. Holland's testimony. Because he participated in the interview process, knew about the late disclosure a month before the hearing, and even agreed on the first day of the hearing to let Dr. Holland testify out of order, he could not spring the objection at the last minute. The court also emphasized that Nevada public policy strongly favors letting courts consider all evidence bearing on a child's best interest; by excluding the court-appointed interviewer's testimony and report, the district court "hindered its own inquiry into G.S.'s best interest" and, in effect, sanctioned the child for her mother's procedural misstep. Second, the appellate court found that two of the district court's best-interest findings were not backed by substantial evidence: the finding that the parents' "ability to cooperate" factor was neutral (the record showed James was the less cooperative co-parent, including never giving Tiffany the number to G.S.'s phone at his house), and the finding that the "relationship with each parent" factor favored James, which rested on the recorded conversation without the expert analysis Dr. Holland would have provided. Even so, the Court of Appeals affirmed. Under Nevada law, an error justifies reversal only if it likely would have changed the result. Here, the remaining best-interest findings were supported by substantial evidence—particularly that James consistently provided G.S. three meals a day, got her to school on time, and offered a stable home—and Tiffany did not include Dr. Holland's report in the appellate record, which limited the court's ability to assess what difference it might have made. Finally, the court rejected Tiffany's claim of judicial bias: judges are presumed impartial, and rulings formed from what a judge learns during the case itself are not evidence of bias.