TOTH VS. TOTH (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

Badt, C.J. The sole question on the cross-appeals was whether the district court abused its discretion in modifying a custody decree. Under NRS 125.140, custody dispositions and modifications are committed to the trial court's discretion, guided by the best interests and present comfort and future well-being of the children, and will not be disturbed absent an abuse. Citing Cosner v. Cosner, 78 Nev. 242, 371 P.2d 278 (1962), the court reiterated the presumption on appeal that the trial court properly exercised its judicial discretion in determining the children's best interests. On the undenied evidence of the mother's misconduct, and the children's opportunity for better circumstances with the father, it was not an abuse of discretion to award the father nine-month custody with the mother retaining summer custody subject to support and transportation conditions; nor was it an abuse to deny the father full custody. Affirmed.

In plain language

A 1961 default divorce decree gave the mother custody of the couple's three young children. In 1963, after a full hearing, the trial court modified the decree: it gave the father custody during the nine school months of the year (at his home in New Jersey) and the mother custody during the three summer months, and it required the father to pay support during the summers, cover the children's travel costs, and post a bond. Both parents appealed - the mother objecting to losing primary custody, the father wanting full custody. The Nevada Supreme Court affirmed the modified order in all respects. It found no abuse of discretion. The trial court had acted on undisputed evidence that the mother had carried on an illicit relationship for about a year, and it concluded that the children's best interests were served by placing them mainly with the father, where they would have better housing and circumstances, while preserving the mother's summer custody. The court emphasized that custody decisions turn on the best interests of the children and that trial courts are presumed to have exercised their discretion properly.