WALLACE VS. WALLACE (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

By the Court, Rose, J. (Steffen, C.J., Young and Shearing, JJ., concurring). The court reversed and remanded a post-divorce order that set a long-distance visitation schedule, abated child support, and granted grandparent visitation. Visitation/notice and hearing. Matters of custody and visitation rest in the district court's sound discretion (Culbertson v. Culbertson, 91 Nev. 230, 233, 533 P.2d 768, 770 (1975)), and a visitation ruling is a custody determination (NRS 125A.040(2); see NRS 125A.290(1)(a)). The district court abused its discretion by imposing a visitation schedule premised on the father's relocation to Atlanta - disclosed only late in the hearing - without accepting evidence or hearing argument on the ramifications of cross-country visitation, depriving the mother of a full and fair hearing (cf. Wiese v. Granata, 110 Nev. 1410, 1413, 887 P.2d 744, 746 (1994); Moser v. Moser, 108 Nev. 572, 576-77, 836 P.2d 63, 66 (1992)). Child support abatement. Under NRS 125B.070(1) and NRS 125B.080(6), deviations from the formula must be supported by findings and grounded in the NRS 125B.080(9) factors (Anastassatos v. Anastassatos, 112 Nev. 317, 320, 913 P.2d 652, 654 (1996)). The relevant factor, NRS 125B.080(9)(i), permits considering transportation costs only where the custodial parent moves and the noncustodial parent remains; equity does not empower a court to extend a deviation to a move by the noncustodial parent. The court further failed to make the required NRS 125B.080(6) findings - stating the formula amount and the basis for deviation - both for the $100 travel reduction and, as plain error addressed sua sponte (Bradley v. Romeo, 102 Nev. 103, 105, 716 P.2d 227, 228 (1986)), for the complete summer abatement (see Anastassatos, 112 Nev. at 321; Barbagallo v. Barbagallo, 105 Nev. 546, 779 P.2d 532 (1989)). Grandparent visitation. NRS 125A.330(1) (and the factors in NRS 125A.340(1)) provide that the court 'shall' consider the enumerated factors; the statute is not disjunctive. The district court erred in ordering grandparent visitation without receiving evidence on and considering all relevant factors. Reversed and remanded.

In plain language

Tracy (formerly Wallace, now Vollmer) and Pieter Wallace divorced when their son Drake was less than a year old. Tracy had physical custody; they shared joint legal custody. As the parents began disputing visitation, the district court held a hearing. During the hearing - after evidence had focused on whether five-year-old Drake should spend Wednesday nights at his father's - Pieter revealed for the first time that he had a job offer in Atlanta and was moving there. The court then imposed a broad visitation schedule built around the Atlanta move (including seven weeks each summer), reduced Pieter's child support by $100 in any month either he or Drake traveled for visitation, completely eliminated support during summer visitation, and ordered that Drake stay with Pieter's mother in any month Pieter could not take him. Tracy appealed, and the Supreme Court reversed on three points. First, the court abused its discretion by imposing a long-distance visitation schedule based on the Atlanta move without giving notice and holding a proper hearing on that issue; Tracy had no chance to present evidence about a schedule requiring a young child to fly across the country. (The narrower Wednesday-night dispute was moot once Pieter moved.) Second, the court wrongly reduced Pieter's child support for travel costs. Nevada's statute lets a court consider travel costs as a reason to deviate from the support formula only when the custodial parent moves away - not when, as here, the noncustodial parent chooses to move. The court also failed to make the required written findings, including for the complete summer support abatement. Third, the court erred in granting the grandmother visitation without receiving evidence on and considering all the factors the statute says a court 'shall' consider. The case was reversed and remanded.