SUMMIT VS. SUMMIT (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the child custody determination for abuse of discretion under Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). It applied the two-part framework from Romano v. Romano, 138 Nev. 1, 3, 501 P.3d 980, 982 (2022): whether "(1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child's best interest is served by the modification." The court will not disturb factual findings supported by substantial evidence—"evidence that a reasonable person may accept as adequate to sustain a judgment"—but gives no deference to conclusory findings that may mask legal error, citing Ellis and Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142-43 (2015). On custody, the court rejected Mark's argument that the district court ignored or mis-weighed his evidence. Materials attached to motion practice but not admitted at the evidentiary hearing could not be considered substantive evidence, citing EDCR 5.205(g) (pre-2022 version), Ellis, and Cramer v. State, Dep't of Motor Vehicles, 126 Nev. 388, 395, 240 P.3d 8, 12 (2010) (district court's "gatekeeping" function). Because Mark offered no specific argument challenging the district court's evidentiary rulings, the court deemed that challenge waived under Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011). The court declined to reweigh evidence or credibility on appeal, citing Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000) and Ellis. Reviewing the hearing transcript and the district court's 25-page written order, the court found the district court reached its conclusions "for the appropriate reasons" and made findings supported by substantial evidence, including an evaluation of the best interest factors under NRS 125C.0035(4)—with a thorough examination of the domestic violence allegation—as required by Lewis v. Lewis, 132 Nev. 453, 459-60, 373 P.3d 878, 882 (2016) and Davis. The court rejected Mark's judicial bias claim under Canarelli v. Eighth Judicial Dist. Court, 138 Nev. 104, 107, 506 P.3d 334, 337 (2022), because Mark did not show the decision was based on extrajudicial knowledge or reflected "a deep-seated favoritism or antagonism that would make fair judgment impossible." The court also cited In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988) (rulings in official proceedings generally do not establish grounds for disqualification) and Rivero v. Rivero, 125 Nev. 410, 439, 216 P.3d 213, 233 (2009) (burden on party asserting bias), the latter overruled on other grounds by Romano. On child support, the court reviewed for abuse of discretion under Romano, 138 Nev. at 7, 501 P.3d at 985, applying the substantial evidence standard from Rivero, 125 Nev. at 428, 431, 216 P.3d at 226, 228, and again declining to defer to conclusory findings under Davis. The court held substantial evidence supported the district court's finding that Mark failed to submit all ordered financial documents (incomplete business bank statements, no personal bank statements, no proof of business expenses, and a 2020 tax return without schedules), and by extension supported the finding that Mark was intentionally attempting to delay the proceedings. The court acknowledged the district court overlooked certain earlier-filed documents (the 2018 and 2019 tax returns and 16 months of business bank statements) and framed the issue as one of prejudice, citing NRCP 61. Applying that standard, the court held Mark failed to show the overlooked documents may have warranted a different result, particularly because Mark offered no cogent argument connecting those documents to his income claims, and he himself characterized the $133,000 PPP figure as a "projection of [his] income." The court invoked Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (declining to consider issues unsupported by cogent argument) and Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007) (appellant's burden to prepare the record; missing materials presumed to support the district court's decision). In a footnote, the court noted the district court did not address whether Mark was current on his prior $200 monthly obligation when calculating arrears, but declined to reach the issue because Mark raised no argument on it, citing Powell, and observed that NRCP 60(a) permits correction of clerical mistakes, citing Carroll v. Carroll, No. 73534-COA & 75425-COA, 2019 WL 2027208, at *4 n.5 (Nev. Ct. App. May 7, 2019). On attorney fees and costs, the court held it lacked appellate jurisdiction. Jurisdiction exists only when authorized by statute or court rule, citing Brown v. MHC Stagecoach, LLC, 129 Nev. 343, 345, 301 P.3d 850, 851 (2013). While NRAP 3A(b)(8) authorizes an appeal from a post-judgment order awarding attorney fees and costs, see Winston Prods. Co., Inc. v. Deboer, 122 Nev. 517, 525, 134 P.3d 726, 731 (2006), the fee portion of the challenged order was not final under Rennels v. Rennels, 127 Nev. 564, 569, 257 P.3d 396, 399 (2011), because it contemplated further proceedings on the remainder of Margaret's request. The court therefore dismissed that portion of the appeal as premature.

In plain language

Mark and Margaret Summit were divorced, and their divorce decree gave Margaret primary physical custody of their minor children, with Mark receiving parenting time and a child support obligation. Over several years, the couple repeatedly returned to court, largely because Mark asked the court to change the custody arrangement to either primary custody for himself or joint physical custody, and to adjust his child support accordingly. Margaret opposed these requests. Earlier disputes produced multiple appeals; in one, the Court of Appeals sent the case back to the trial court because the trial court had denied Mark's request to change custody without first holding an evidentiary hearing (a hearing where witnesses testify and evidence is formally admitted). After that hearing on remand, the trial court denied Mark's request to change custody. The court found that Mark had not shown a "substantial change in circumstances affecting the welfare of the child," and had not shown that changing custody was in the children's best interest. The court delayed deciding the child support issues because Mark had not filed an updated financial disclosure form, and it ordered him to file one with supporting documents such as tax returns, bank statements, proof of expenses, and a Paycheck Protection Program (PPP) loan application his business had submitted during the COVID-19 pandemic. Mark repeatedly submitted only some of the required documents. Eventually, the trial court ruled on child support, increasing Mark's monthly obligation from $200 to $1,887.98 and finding he owed $33,966 in back child support (arrears). Because the court found Mark's 2020 tax return "wholly incomplete and inadequate" due to missing documents, it based its income calculation largely on his financial disclosure form and on his PPP loan application, in which he had reported that his business received $133,000 in net revenue over a 12-month period. On appeal, Mark argued the trial court ignored or mishandled his evidence on custody. The Court of Appeals explained that many of the materials Mark attached to his written motions were never formally admitted into evidence at the hearing, so the trial court could not treat them as proof. Because Mark did not specifically challenge the trial court's decisions about what evidence to admit or exclude, the appellate court treated that challenge as waived. The court also noted that it does not re-weigh evidence or judge witness credibility on appeal. Mark also claimed the trial judge was biased, but the court found he had not shown the kind of deep-seated bias required to disqualify a judge. On child support, Mark argued the trial court wrongly relied on his PPP loan application and that the figure was outdated because his business had shut down during the pandemic. The Court of Appeals found that Mark had not actually submitted all the documents he was ordered to provide, so the trial court's finding on that point was supported by the evidence. The appellate court acknowledged that the trial court had overlooked some documents Mark filed earlier (such as his 2018 and 2019 tax returns and 16 months of business bank statements), but concluded Mark failed to show that these overlooked documents would have changed the result. Mark also had not provided the appellate court with the hearing transcript, and Nevada appellate courts presume that missing parts of the record support the trial court's decision. Finally, on the attorney fees and costs issue, the Court of Appeals concluded it lacked jurisdiction (legal authority to decide the issue) because the trial court's order on fees was not final — the court had granted part of Margaret's request but planned further proceedings on the rest. The appellate court therefore dismissed that part of the appeal as premature and affirmed the rest.