WARD VS. VILLAFLOR (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals resolved two unconsolidated appeals in a single order of affirmance. In Docket No. 85148-COA, Ward challenged the district court's "Order After Reversal and Remand" denying NRCP 60(b) relief. The court reviewed the denial of an NRCP 60(b) motion to set aside a judgment for abuse of discretion. See Cook v. Cook, 112 Nev. 179, 181-82, 912 P.2d 264, 265 (1996). The prior remand had directed the district court to apply the factors from Yochum v. Davis, 98 Nev. 484, 486, 653 P.2d 1215, 1216 (1982), overruled on other grounds by Epstein v. Epstein, 113 Nev. 1401, 1405, 950 P.2d 771, 773 (1997), as required by Willard v. Berry-Hinckley Indus., 136 Nev. 467, 471, 469 P.3d 176, 180 (2020). On remand, the district court expressly examined the four Yochum factors: (1) whether Ward promptly applied to remove the judgment (finding he did, though procedurally improperly); (2) whether his conduct demonstrated an intent to delay (finding it did); (3) that although Ward is not an attorney, he had been instructed on proper procedure by the Chief Judge and the district court; and (4) that any good-faith finding had to be weighed against Ward's "refusal to conduct any self-analysis or take the court-ordered steps which are designed to benefit his children and his relationship with them." Because Ward's appellate arguments addressed the 2019 final custody order rather than the merits of the NRCP 60(b) decision or the district court's Yochum analysis, the court deemed those arguments waived. See Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011). The court further noted that Ward failed to timely appeal the December 11, 2019, final custody order and the March 18, 2020, denial of his post-judgment tolling motions, invoking the jurisdictional rule of Dickerson v. State, 114 Nev. 1084, 1087, 967 P.2d 1132, 1134 (1998). Finding the district court had complied with the remand directive by expressly considering the Yochum factors, the court discerned no abuse of discretion and affirmed. In Docket No. 84674-COA, Ward challenged the denial of his request to resume supervised parenting time at Donna's House. The court reviewed the child custody decision for abuse of discretion and would not disturb findings supported by substantial evidence - evidence a reasonable person may accept as adequate to sustain the judgment. Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009), overruled on other grounds by Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 984 (2022). The court presumed the district court properly exercised its discretion in determining the child's best interest. Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). A child custody determination includes orders providing for legal custody, physical custody, or parenting time. NRS 125A.045(1). Ward again attempted to challenge the 2019 custody decision, which was not properly before the court. Ward did not contest the district court's authority to order a psychological evaluation; instead he argued compliance was impossible because psychiatrists refused to treat him. Because the letters he submitted were heavily redacted and he failed to provide unredacted versions for in camera review despite the court's prior invitation to do so, the court discerned no abuse of discretion and affirmed. Arguments not specifically addressed were considered and found either not to present a basis for relief or not to require resolution given the disposition.

In plain language

Erik Ward and Svetlana Villaflor were never married and have two minor children together. In December 2019, the district court entered a final custody decree giving Villaflor primary physical custody. The court allowed Ward one hour per week of supervised parenting time at a third-party facility called Donna's House, but conditioned continued parenting time on Ward submitting to a psychological evaluation showing the children would be safe in his care. The court also asked Ward to provide the documents supporting that evaluation so the court could review them privately (an "in camera review" - a review conducted by the judge in chambers rather than in open court). Ward asked the court to reconsider, and the court denied that request in March 2020. Ward then filed a motion to set aside the March 2020 order under NRCP 60(b) - a court rule that lets a party ask a court to undo a prior ruling for certain reasons. The district court denied that motion too. Ward appealed, and in an earlier, separate appeal, the Court of Appeals sent the matter back (reversed and remanded), finding the district court had not applied the required legal factors from a case called Yochum v. Davis. On remand, the district court re-examined those factors in detail and again denied Ward's NRCP 60(b) request. That second denial is what Ward challenged in Docket No. 85148-COA. Separately, Ward's supervised parenting time had been terminated after an incident that led to his removal from Donna's House. Ward filed a "Motion for Visitation" asking to restart his parenting time. After briefing and a hearing, the district court denied that request, repeating that it might reconsider if Ward provided a psychological evaluation showing he was not a danger to the children. Ward challenged that denial in Docket No. 84674-COA. On appeal, Ward mostly tried to attack the original 2019 custody decision. The Court of Appeals said it could not consider those arguments because Ward had not filed a timely appeal of the 2019 order - and filing a timely appeal is a basic requirement without which the court has no power to hear the issue. Because Ward did not otherwise challenge how the district court applied the Yochum factors, the court treated those arguments as given up (waived), and found no abuse of discretion in the denial of NRCP 60(b) relief. On the parenting-time issue, the court noted that Ward did not dispute the district court's authority to order a psychological evaluation. Instead, Ward argued it was impossible to comply because several psychiatrists refused to treat him. But the letters he submitted to show this were heavily blacked out (redacted), and he did not provide unredacted versions for the court's private in-chambers review, even though the court had told him he could submit them that way. Under these circumstances, the court found no abuse of discretion and affirmed both orders.