TIMNEY VS. TIMNEY (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

By the Court, McNamee, C.J. On the wife's appeal from the custody provisions of a decree granting the husband a divorce, the court affirmed. The trial court expressly found the wife (who admitted adultery, with additional evidence of neglect) "not a proper person" and awarded custody of the two boys to the husband. Rejecting the wife's contention that the absence of an express finding of the husband's fitness violated NRCP 52(a), the court held that the finding that the children should remain with the husband was an implied finding of his fitness (Garibaldi Bros. Trucking Co. v. Waldren, 74 Nev. 42, 321 P.2d 248 (1958)). It assumed the trial court considered the children's present comfort and future well-being under NRS 125.140, reaffirmed the trial court's broad discretion in determining a child's welfare (Murphy v. Murphy, 65 Nev. 264, 193 P.2d 850 (1948); Goto v. Goto, 52 Cal.2d 118, 338 P.2d 450 (1959)), and noted the court had observed the parties and interviewed the boys in chambers. No abuse of discretion appeared.

In plain language

The husband was granted a divorce, and the only issue the wife raised on appeal was the award of custody of their two sons (ages 11 and 5) to the father. The trial court found the boys had been in the father's care during the case and should stay with him, with visitation for the mother, and expressly found the mother was "not a proper person" to have custody. The mother had admitted adultery, and there was other evidence she had neglected the children and the household. The mother argued that because the court never expressly found the father was a fit and proper person, awarding him custody was error - especially since he was 55 (she was 41) and there was evidence he used improper language in front of the children. The Nevada Supreme Court rejected this and affirmed. Court rules require a judge to make findings, but the finding that the children should remain with the father was itself an implied finding that he was fit. The court assumed the trial judge considered the children's present comfort and future well-being, as Nevada law requires. Trial courts have broad discretion in deciding what serves a child's welfare, and that decision will not be overturned unless the discretion was abused. Here the judge had seen the parties testify, had even interviewed the two boys privately in chambers, and had ample evidence supporting the decision - so there was no abuse of discretion.