TAVARES VS. BUONOCORE (CHILD CUSTODY)

Key holdings

Practitioner summary

The court applied the rule that appellate jurisdiction exists only where authorized by statute or court rule. Brown v. MHC Stagecoach, 129 Nev. 343, 345, 301 P.3d 850, 851 (2013) ("[W]e may only consider appeals authorized by statute or court rule."). Because the September 5, 2024 order was an indicative order under NRAP 12A - certifying the district court's inclination to correct the April 15 order under NRCP 60(a) if jurisdiction were remanded - and because no statute or court rule authorizes an appeal from such an indicative order, the court held it lacked jurisdiction over Docket No. 89473. Appellant's response to the show cause order argued that the district court exceeded NRCP 60(a)'s scope, rendering the limited remand ineffective. The court characterized those contentions as merits arguments that did not establish appellate jurisdiction over the September 5 order. The court further observed that the still-pending appeal in Docket No. 88561 - from the April 15 order as revised on limited remand by the November 4, 2024 corrected order - remains the appropriate vehicle for any challenges to the September 5 and November 4 orders, citing Consol. Generator-Nev., Inc. v. Cummins Engine Co., 114 Nev. 1304, 1312, 971 P.2d 1251, 1256 (1998). The fast track opening brief in Docket No. 88561 was due March 14, 2025. The motions to consolidate were denied as moot.

In plain language

This order resolves a jurisdictional question in one of two related child custody appeals. The father, Edgar Tavares, had appealed a district court order from April 15, 2024 that modified child custody. While that appeal was pending, the district court signaled it wanted to fix something in the April order using a procedural rule (NRCP 60(a)) that allows correction of clerical-type errors. Because an appeal was already up at the Supreme Court, the district court could not act on its own; it had to issue what is called an "indicative order" under NRAP 12A - essentially a written statement that, if the Supreme Court sent the case back briefly, the district court would make the correction. The Supreme Court did send it back temporarily, and the district court entered a corrected order on November 4, 2024. Tavares then filed a separate appeal (Docket No. 89473) from the September 5, 2024 indicative order. The Supreme Court told him to explain why that appeal should not be thrown out for lack of jurisdiction, because no statute or rule allows a party to appeal an indicative order under NRAP 12A - it is just a signal of what the district court would do, not a final ruling that changes anyone's rights. Tavares argued the district court had gone beyond what NRCP 60(a) allows, so the limited remand was ineffective. The Supreme Court said those are arguments about whether the district court got it right on the merits, not arguments showing the Supreme Court has jurisdiction to hear an appeal in the first place. Because no rule authorizes an appeal from an NRAP 12A indicative order, the court dismissed Docket No. 89473. The other appeal (Docket No. 88561), challenging the underlying custody modification, is still alive. The Supreme Court noted that Tavares can raise his concerns about the September 5 and November 4 orders within that pending appeal. With the second appeal dismissed, the motions to combine the two appeals were moot.