WHITTLE VS. MORRIS (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's custody determination for an abuse of discretion, citing 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, ___ P.3d ___ (2022). The court reiterated that the sole consideration in a custody determination is the best interest of the child under NRS 125C.0035(1), and that under Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015), a custody order "must tie the child's best interest, as informed by specific, relevant findings respecting the [best interest factors] and any other relevant factors, to the custody determination made." Absent specific findings and an adequate explanation, the reviewing court cannot determine with assurance whether the custody determination was appropriate. Id. at 452, 352 P.3d at 1143. The court addressed Whittle's post-hearing "supplemental exhibits" as a threshold matter. Because that document was not submitted to the district court prior to the evidentiary hearing and Whittle sought no relief from the judgment, the court declined to consider it, citing Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (issues not raised in the trial court will not be considered on appeal) and Ryan's Express Transp. Servs., Inc. v. Amador Stage Lines, Inc., 128 Nev. 289, 299, 279 P.3d 166, 172 (2012) (an appellate court is not particularly well-suited to make factual determinations in the first instance). On the merits, Whittle argued the district court made inaccurate factual statements and abused its discretion in awarding Morris primary physical custody based on those findings, which he contended rested on inadmissible hearsay. The court held it could not fully analyze the claims of an unfair evidentiary hearing or improper evidentiary determinations because Whittle failed to provide the transcript of the February 18, 2021 evidentiary hearing. Applying Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007), the court noted appellants are responsible for making an adequate appellate record and that when an appellant fails to include necessary documentation, the reviewing court presumes the missing portion supports the district court's decision. The court observed in a footnote that Whittle had requested transcripts only for an earlier October 3, 2019 temporary custody hearing, never provided them, and never moved to compel their preparation, citing NRAP 9(b)(1)(B). Turning to the record before it, the court noted the 33-page order contained specific findings of fact addressing the best interest of the child factors under NRS 125C.0035(4) and tied the child's best interest to the custody determination consistent with Davis. On that basis, the court concluded the record supported the district court's decision to award Morris primary physical custody and affirmed. (The opinion's discussion references both NRS 125C.0085 and NRS 125C.0035(4) in connection with the best interest factors.)

In plain language

Brian Lee Whittle and Raven Morris are not married but have one child together. In 2019, Whittle filed a complaint asking to be listed as the child's father on the birth certificate and requesting joint legal and physical custody. Legal custody generally refers to decision-making authority over a child, while physical custody refers to where the child lives and who cares for the child day-to-day. The district court held an evidentiary hearing (a court proceeding where witnesses testify and evidence is presented) on February 18, 2021. Afterward, it issued a 33-page order. That order directed Whittle to change the child's last name to Morris-Whittle, gave both parents joint legal custody, and gave Morris primary physical custody. The court went through each of the factors Nevada law lists for deciding what is in a child's best interest and described the witness testimony in detail. Whittle appealed, arguing mainly that the district court made inaccurate factual statements in its custody order and that it wrongly gave Morris primary physical custody based on those inaccurate findings, which he said relied on hearsay (out-of-court statements offered as evidence). He also filed a document called "supplemental exhibits" after the hearing to try to challenge some of the court's findings. The Court of Appeals declined to consider the "supplemental exhibits" because that document had not been properly presented to the district court before the hearing, and Whittle had not asked the district court for any relief based on it. Courts generally will not consider issues raised for the first time on appeal. The bigger problem for Whittle's appeal was the record. When someone appeals, they are responsible for giving the appellate court the documents it needs to review what happened below - including transcripts of hearings. Whittle did not provide a transcript of the February 18, 2021 evidentiary hearing. He had requested transcripts of a different, earlier hearing (a temporary custody hearing held on October 3, 2019), but never actually delivered those transcripts to the court or took steps to compel their preparation. Without the transcript of the evidentiary hearing, the court explained, it could not fully evaluate his claims that the hearing was unfair or that the district court made improper evidentiary rulings. When necessary parts of the record are missing, the appellate court presumes the missing material supports the district court's decision. Looking at what it did have - the 33-page order with specific findings on the best-interest factors - the Court of Appeals concluded the record supported the district court's decision to award Morris primary physical custody, and it affirmed.