WALLACE VS. WALLACE (CHILD CUSTODY)

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's denial of a motion to modify physical custody without an evidentiary hearing for an abuse of discretion. See Bautista v. Picone, 134 Nev. 334, 338, 419 P.3d 157, 160 (2018). A district court abuses its discretion only when "no reasonable judge could reach a similar conclusion under the same circumstances." Matter of Guardianship of Rubin, 137 Nev., Adv. Op. 27, 491 P.3d 1, 6 (2021) (quoting Leavitt v. Siems, 130 Nev. 503, 509, 330 P.3d 1, 5 (2014)). A district court may deny a motion to modify physical custody without an evidentiary hearing unless the movant demonstrates "adequate cause," which arises when the movant makes a prima facie case for modification within the movant's affidavit and pleadings. Rooney v. Rooney, 109 Nev. 540, 542-43, 853 P.2d 123, 124-25 (1993). To modify physical custody, the movant must show that "(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 the modification." Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 983 (2022) (quoting Ellis v. Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007)). Applying this framework, the court held that William never argued that the parties' reversion to the divorce decree's original terms constituted a substantial change in circumstances, and thus waived that argument. See Levy v. Levy, 96 Nev. 902, 904, 620 P.2d 860, 861 (1980). The court addressed William's reliance on Rivero v. Rivero, 125 Nev. 410, 426, 216 P.3d 213, 224 (2009), for the proposition that the district court had to determine whether he exercised de facto joint physical custody (in which case he would not need to prove a substantial change of circumstances). The court explained that this aspect of Rivero was overruled by Romano, which clarified that a district court "is not required to first determine what type of physical custody arrangement exists before considering whether to modify the arrangement." 138 Nev., Adv. Op. 1, 501 P.3d at 983-84. The court further noted that because the district court found Ammie had primary physical custody, the result would not have differed even had Romano been decided before the order under appeal. The court additionally concluded that William did not cogently argue how the parties' temporary deviation from the controlling decree constituted a substantial change in circumstances, and thus declined to consider the claim. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). William provided no specific facts establishing a prima facie case and failed to cite authority or cogently explain how "exercising significantly more time" than contemplated by the decree established substantially changed circumstances. In a footnote, the court declined to reach William's claim that the district court erred in delegating the preparation of its written order and detailed findings. The court reasoned that it need not address issues unnecessary to resolve the case, see Miller v. Burk, 124 Nev. 579, 588-89 & n.26, 188 P.3d 1112, 1118-19 & n.26 (2008); that William waived the claim by failing to timely object, see Levy, 96 Nev. at 904, 620 P.2d at 861; that any error was not plain because William conceded the alleged error is not clear under current law and general practice permits the procedure, see Bradley v. Romeo, 102 Nev. 103, 105, 716 P.2d 227, 228 (1986); Williams v. Zellhoefer, 89 Nev. 579, 580, 517 P.2d 789, 789 (1983); see also EDCR 5.505; and that William failed to show prejudice to his substantial rights, see McClendon v. Collins, 132 Nev. 327, 333, 372 P.3d 492, 495-96 (2016); cf. NRCP 61.

In plain language

William and Ammie Wallace married in 2009, had three children, separated in 2017, and divorced in September 2020. In their divorce decree, they agreed that Ammie would have primary physical custody and that William would have the children on weekday afternoons from 3:30 p.m. to 6:30 p.m., with the parents alternating weekends. According to the opinion, the parents did not actually follow that schedule for a period. During the COVID-19 pandemic, when the children were learning from home and both parents were working from home, they used a different, more equal arrangement that William described as joint physical custody with a "2/3/2 timeshare." They kept this up until the children went back to in-person school in spring 2021, at which point they returned to the schedule written in the divorce decree. In June 2021, William asked the court to change the custody order, arguing that the parents had really been sharing custody roughly equally ("de facto joint physical custody") and that keeping that arrangement was in the children's best interest. Ammie asked the court to deny the motion without a hearing, saying William had not shown any substantial change in circumstances affecting the children, who she said were doing well in her care. After a 20-minute hearing without testimony or evidence, the district court denied William's motion. The court found that Ammie had primary physical custody (having the children about 70% of the time) and that William had not shown "adequate cause" for an evidentiary hearing because he had not demonstrated a substantial change in circumstances. The Court of Appeals affirmed. It explained that to change a physical custody order in Nevada, a parent must show both (1) a substantial change in circumstances affecting the child's welfare and (2) that the change serves the child's best interest. The court held that William never argued that returning to the decree's original terms was a substantial change in circumstances, so he waived that point. It also explained that a recent Nevada Supreme Court decision, Romano v. Romano, overruled the part of the older Rivero decision that William relied on - meaning a court no longer has to first decide what kind of custody arrangement exists before deciding whether to modify it. Because William did not adequately show a substantial change in circumstances, his appeal failed.