TOLIVER VS. TOLIVER (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the child custody modification against the settled standard that a district court has broad discretion in custody matters, but its findings must be supported by substantial evidence — "evidence that a reasonable person may accept as adequate to sustain a judgment." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007). Procedural due process claims are reviewed de novo. Callie v. Bowling, 123 Nev. 181, 183, 160 P.3d 878, 879 (2007). On the legal-custody due process claim, the court framed the governing principle: litigants in a custody dispute have "the right to a full and fair hearing concerning the ultimate disposition of a child," and a party "threatened with the loss of parental rights must be given the opportunity to disprove the evidence presented." Wiese v. Granata, 110 Nev. 1410, 1412-13, 887 P.2d 744, 746 (1994) (quoting Moser v. Moser, 108 Nev. 572, 576-77, 836 P.2d 63, 66 (1992)). Due process requires "prior specific notice" that the hearing may result in the particular custody determination made, not merely general notice of a hearing. Dagher v. Dagher, 103 Nev. 26, 28, 731 P.2d 1329, 1330 (1987). The court disposed of the legal-custody claim on multiple grounds. First, because Monica submitted only Crane's testimony rather than the full two-day transcript, the court presumed the missing transcripts supported the district court's determination under NRAP 9(b)(1)(B) and Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007). Second, the court characterized the modification as a "hybrid joint legal custody arrangement": Jeffrey received primary decision-making authority only as to mental-health decisions, without excluding Monica as a sole custody order would, consistent with the observation that "joint legal custody does not require that the parents have equal decision-making power." Cristos v. Tolagson, No. 84167-COA, 2023 WL 3031389, at *6 (Nev. Ct. App. Apr. 20, 2023). Third, on the merits, the court held there was no due process violation where Monica had notice custody and the children's mental health were central topics, attended with counsel, and confronted the witnesses, citing NRS 125C.0045(1)(a). Substantial evidence — particularly Crane's testimony on Monica's interference with S.T.'s therapy — supported the modification. On the physical-custody modification, the court applied the two-part test that a movant must show "(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 modification." Romano v. Romano, 138 Nev. 1, 5, 501 P.3d 980, 983 (2022), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op. 43, 535 P.3d 1167, 1171 (2023). Monica did not challenge the substantial-change finding, so it was not disturbed. The court rejected the argument that the district court improperly used Crane's letter as a custody evaluation under NRCP 16.22, noting both parties agreed no custody evaluation was sought or ordered, and Crane testified the letter was an incomplete progress report prepared at Jeffrey's request for the settlement conference. On the best-interest analysis, the court reaffirmed that a district court must articulate specific findings on the nonexhaustive statutory factors. NRS 125C.0035(4); Lewis v. Lewis, 132 Nev. 453, 459-60, 373 P.3d 878, 882 (2016). The court found error in the district court's treatment of the domestic-violence factor, NRS 125C.0035(4)(k): the district court made a "summary finding" of three unspecified instances without detailing the incidents or addressing whether some predated and had been previously litigated. See Davis v. Ewalefo, 131 Nev. 445, 452, 352 P.3d 1139, 1143 (2015); Nance v. Ferraro, 134 Nev. 152, 159-60, 418 P.3d 679, 685-86 (Ct. App. 2018). The court further found the district court compounded the error by failing to properly apply the NRS 125C.0035(5) presumption against joint physical custody — it did not address whether the domestic violence was proven by clear and convincing evidence, make supporting findings of fact, or find that the arrangement protected the children and Jeffrey. The court nonetheless held these errors harmless. The district court's modification also rested on other best-interest factors that Monica did not challenge on appeal — NRS 125C.0035(4)(a) (wishes of the child), (d) (level of conflict), (e) (ability to cooperate and meet the child's needs), (g) (physical, developmental and emotional needs), and (q) — each of which the court found favored Jeffrey, with none favoring Monica. Unchallenged arguments are waived under Powell v. Liberty Mutual Fire Insurance Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011), and the findings were supported by substantial evidence, further bolstered by the presumption arising from the incomplete transcript record. Applying the harmless-error standard — a movant must show that "but for the alleged error, a different result might reasonably have been reached," Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010) — the court concluded Monica had neither demonstrated nor argued the domestic-violence errors would have changed the result. See Abid v. Abid, 133 Nev. 770, 776, 406 P.3d 476, 481 (2017); cf. NRCP 61. The court affirmed.

In plain language

Monica and Jeffrey Toliver divorced in 2018 and share two children, born in 2009 and 2012. Under a 2019 agreement, they split both legal custody (the authority to make major decisions for the children, such as those involving health, education, and religion) and physical custody (where the children live) equally, on a week-on-week-off schedule. In December 2021, Jeffrey asked the court to give him primary physical custody. He said the older child preferred to live with him and had reported fears and concerns about living at Monica's home, including emotional abuse and name-calling, losing her room when Monica's boyfriend and his children moved in, a long daily drive to school, and a delay of months before Monica approved therapy the child wanted. Before the main hearing, Jeffrey filed an emergency motion and attached a letter from Brian Crane, a licensed clinical social worker who had begun treating the older child, describing the child's "severe levels of depression" and her concerns about the living situation. The court temporarily gave Jeffrey primary physical custody. The court then held a two-day evidentiary hearing (a hearing where witnesses testify and evidence is presented). Jeffrey's witnesses were the older child, whom the judge interviewed privately, and three social workers who had served as the children's therapists. Monica testified and called her boyfriend and his daughter. Crane testified that the child's depression worsened when she was with Monica, and that he could not finish his evaluation because Monica filed a police report and a report to a licensing board against him, which ended his treatment of the child. After the hearing, the district court gave Jeffrey primary physical custody, with Monica having parenting time on Sundays. The court also made a narrow change to legal custody: it gave Jeffrey the primary say only on the children's mental-health decisions, while leaving Monica involved in all other health, education, and religious decisions. The court found the children needed further counseling, that Monica had interfered with their mental-health treatment, and that Monica's witnesses were less credible. On appeal, Monica first argued that the court unfairly changed legal custody because Jeffrey had only asked to change physical custody, so she lacked notice. The Court of Appeals noted she had not provided the full transcripts of the hearing, so it presumed the missing record supported the trial court. Beyond that, it explained that the change to legal custody was narrow — it did not remove Monica from decision-making the way a sole custody order would — and that she had notice custody and the children's mental health would be central issues, attended the hearing with a lawyer, and could confront the witnesses. The court found no due process violation. Monica next argued that the court wrongly treated Crane's letter as a formal custody evaluation and wrongly found she committed domestic violence. The Court of Appeals rejected the custody-evaluation argument, noting that no one had asked for and the court had not ordered a custody evaluation, and that Crane himself said his letter was just an incomplete progress report he prepared for a settlement conference. On the domestic violence point, the Court of Appeals agreed the district court made mistakes: it found three instances of domestic violence without describing them, did not address whether some had already been litigated, and did not properly apply the legal standard for the presumption against joint physical custody. But the court held these errors were harmless — meaning they did not change the outcome — because the district court had relied on several other best-interest factors, none of which favored Monica, and Monica did not challenge those other findings on appeal. The Court of Appeals therefore affirmed both the physical- and legal-custody rulings.