WESTGATE VS. WESTGATE (CHILD SUPPORT)

Statutes cited

Key holdings

Practitioner summary

Child support is governed by NRS 125B.080, which requires application of the NRS 125B.070 guidelines to any post-July 1, 1987 support request (18% of income for one child, up to the statutory cap), with only limited discretion to deviate (Lewis v. Hicks, 108 Nev. 1107, 1111, 843 P.2d 828, 831 (1992)) based on the factors listed in NRS 125B.080(9). The guidelines intentionally departed from the prior regime of broad discretion. Punishment for denying visitation is not a listed factor and is inconsistent with the guidelines; support and visitation are separate. The court held the family court and district court erred in relying on pre-guideline authority (Noble v. Noble, 86 Nev. 459, 470 P.2d 430 (1970); Melahn v. Melahn, 78 Nev. 162, 370 P.2d 213 (1962)) to reduce support and to refuse reducing arrearages to judgment as punishment for visitation interference; those and similar cases were overruled to the extent they support a contrary proposition. Equitable defenses such as waiver and estoppel remain available in reducing arrearages to judgment (Parkinson v. Parkinson, 106 Nev. 481, 483, 796 P.2d 229, 231 (1990); see Libro v. Walls, 103 Nev. 540, 746 P.2d 632 (1987)), and the child's best interest is paramount (NRS 125.510(1)(a); NRS 125B.090; NRS 125.180). Reversed and remanded with instructions to (1) adopt the referee's May 1988 recommendation of $400/month from January 1988 and (2) consider the child's best interest and equitable factors in determining arrearages, with an offset for support paid since January 1988.

In plain language

Carol and Murray Westgate battled for over a decade over support and custody of their daughter. Carol had primary physical custody and, as a flight attendant, had to move to Memphis when her airline closed its Las Vegas base. Murray stopped paying support, and Carol withheld visitation after their daughter alleged Murray had molested her (Tennessee examiners found the allegations credible, though charges were later dismissed). In 1985 the district court cut Murray's child support in half primarily to penalize Carol for interfering with visitation. When Carol later sought to raise support to the new Nevada guideline amount, the referee twice recommended $400 per month from January 1988, but the district court and later the family court declined to modify, relying on older, pre-guideline case law and Carol's alleged misconduct. The Nevada Supreme Court reversed and remanded. It held that child support is governed by the NRS 125B.070/125B.080 guidelines, with only limited discretion to deviate on the factors enumerated in NRS 125B.080(9); punishment for denying visitation is not among them and is inconsistent with the guidelines. Support and visitation are separate issues, and support (or arrearages) cannot be reduced to punish a parent for withholding visitation. The court overruled Noble, Melahn, and similar pre-guideline decisions to the contrary, and remanded with instructions to adopt the $400 figure from January 1988 and to determine arrearages consistent with the child's best interest.