SUPNICK VS. SUPNICK (FAMILY)

Statutes cited

Key holdings

Practitioner summary

The court reviewed the attorney-fee award for abuse of discretion, applying Logan v. Abe, 131 Nev. 260, 266, 350 P.3d 1139, 1143 (2015), and noting it will not reverse if substantial evidence supports the award. NRS 18.010(2)(b) authorizes fees against a party who brings or maintains a claim "without reasonable ground or to harass the prevailing party." A claim is frivolous or groundless "if there is no credible evidence to support it" (Rodriguez v. Primadonna Company, 125 Nev. 578, 588, 216 P.3d 798, 800 (2009)), and the court must consider "the actual circumstances of the case" (Semenza v. Caughlin Crafted Homes, 111 Nev. 1089, 1095, 901 P.2d 684, 688 (1995)). EDCR 5.219 separately authorizes sanctions for "unexcused intentional or negligent conduct," including frivolous positions or vexatious multiplication of proceedings. Applying that framework, the court held the district court abused its discretion. Key indicia weighing against a frivolousness finding included: (1) the same district court had previously found Melissa established a prima facie case "that there is an actual advantage to the child," warranting an evidentiary hearing; (2) Melissa adduced testimony at the hearing supporting the relocation factors - family-provided housing and childcare, caretaking for her mother, comparative cost-of-living differentials, shorter pediatric wait times tied to the child's existing medical conditions, dedicated bedroom, and cousin relationships; and (3) Matthew conceded difficulty relating to the child during puberty, a fact the court treated as relevant given the child's age. On that record, the position was not maintained "without reasonable ground" within NRS 18.010(2)(b), nor frivolous under EDCR 5.219. Having reversed on that basis, the court did not reach Melissa's alternative argument that the fee amount was unreasonable. As to costs, the court likewise reviewed for abuse of discretion under Logan, 131 Nev. at 267, 350 P.3d at 1144, but declined to reach the merits because Melissa did not file a motion to retax costs in the district court. Per Sheehan & Sheehan v. Nelson Malley & Co., 121 Nev. 481, 493, 117 P.3d 219, 227 (2005), that failure waives appellate review of a costs award.

In plain language

Melissa and Matthew Supnick share a child. After their 2014 divorce, they had joint legal custody and Melissa had primary physical custody. In 2016 the court approved a stipulation letting Melissa move to Wisconsin with the child, but she did not move at that time. Years later, Matthew asked the court to change custody and to cancel the old permission to relocate. Melissa opposed that and asked again for permission to move to Wisconsin. The judge refused to change custody but did cancel the old relocation permission, and ordered an evidentiary hearing because Melissa had shown enough up front that relocating could actually benefit the child. At the hearing, the judge ruled against Melissa, denying her request to move. The judge then ordered Melissa to pay Matthew's attorney fees, finding she had pursued the relocation request "without reasonable ground," and also ordered her to pay about $3,054 in costs because Matthew was the prevailing party. Melissa appealed both awards. The Nevada Supreme Court reversed the attorney-fee award. The court reasoned that Melissa's relocation request was not groundless: she had testified to concrete reasons supporting the move, including free childcare and housing from family in Wisconsin, her ability to help her ailing mother, lower cost of living, shorter pediatrician wait times that would help the child's medical conditions, the child having her own bedroom, and time with cousins. Matthew himself conceded he expected to struggle relating to the child during puberty. Given those facts - and the fact that the same district court had earlier found enough evidence to warrant a full hearing - the Supreme Court concluded that calling her position frivolous was an abuse of discretion. The court left the costs award in place. Melissa never filed a motion in the district court asking to "retax" (challenge) the costs Matthew claimed, and under Nevada precedent that failure waives the right to challenge a costs award on appeal.