WILLIAMS VS. WILLIAMS (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

**Custody (three boys).** The court reviewed the custody determination for a clear abuse of discretion, citing Rico v. Rodriguez, 121 Nev. 695, 701, 120 P.3d 812, 816 (2005). It recognized the rebuttable presumption against a perpetrator parent receiving even joint physical custody under NRS 125C.0035(4)(k) and (5), and reaffirmed that the sole consideration is the best interest of the child under NRS 125C.0035(1), with the order required to tie the child's best interests to the decision and provide a factual basis under Davis v. Ewalefo, 131 Nev. 445, 452, 352 P.3d 1139, 1143 (2015). The court held the district court correctly applied the domestic violence presumption against Nadine based on her acts toward A.W. and Gayle, but acted within its discretion in finding the presumption rebutted, relying on Nadine's compliance with the order against corporal punishment, the children's improved FMC ratings, and the fact that Gayle and Nadine no longer associated. It noted no other findings of domestic violence were made under the clear and convincing evidence standard required to invoke the presumption, citing NRS 125C.0035(5). Because the district court relied on the evidence, including the boys' statements, no abuse of discretion was discerned. Review was limited to the three boys because Herman narrowed his challenge and Nadine filed no cross-appeal, citing NRAP 4(a)(1) and Ford v. Showboat Operating Co., 110 Nev. 752, 755, 877 P.2d 546, 548 (1994). **Master's degree.** The court held Herman did not preserve the merits of his claim to a portion of Nadine's master's degree, applying the waiver rule of Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). Because Herman did not ask the district court to divide the degree at trial, the parties never developed facts or law on the matter, and the court declined to address whether the degree is divisible as community property, citing Cranesbill Tr. v. Wells Fargo Bank, N.A., 136 Nev. 76, 82, 459 P.3d 227, 232 (2020). The court noted Herman raised the issue only in his post-judgment motion, not at trial, and did not argue on appeal that the district court erred in denying a new trial on the issue; without briefing, the court did not consider that alternative, citing Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006), and Greenlaw v. United States, 554 U.S. 237, 243 (2008). To the extent Herman argued the loans should have been classified as separate property along with the degree, the court found the point unpersuasive and noted he did not argue at trial that the student loans were separate debt, citing LaFrance v. Cline, No. 76161, 2020 WL 7663476 (Nev. December 23, 2020), and Pascua v. Bayview Loan Servicing, LLC, 135 Nev. 29, 32, 434 P.3d 287, 290 (2019). **Alimony.** Alimony determinations are reviewed for abuse of discretion under Kogod v. Cioffi-Kogod, 135 Nev. 64, 66, 439 P.3d 397, 400 (2019). A calculation supported by substantial evidence is not disturbed, citing Kelly v. Kelly, 86 Nev. 301, 307, 468 P.2d 359, 363 (1970), and Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 669, 704 (2009); substantial evidence is that which a sensible person may accept as adequate to sustain a judgment, Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004). The court found the America First bank records did not appear to support the $73,322 total the district court derived, because the "total deposits" figure on each statement included transfers Herman made from his savings account back into his checking account, resulting in apparent double counting; the savings account summaries showed no unidentified source of income. The court noted Nadine did not contest the double counting, citing Moore v. State, 93 Nev. 645, 647, 572 P.2d 216, 217 (1977), overruled on other grounds by Miller v. State, 121 Nev. 92, 110 P.3d 53 (2005). The court vacated the alimony determination and remanded for recalculation of Herman's income, instructing that if the recalculation shows more than a negligible difference between the parties' incomes, the district court reconsider alimony using all of the alimony factors, citing NRS 125.150(1)(a), (9), and (10). **Credibility determinations.** The court declined Herman's invitation to reconsider credibility determinations as a matter of public policy, noting he cited no supporting authority, citing Edwards. It reaffirmed that credibility determinations are left to the district court and will not be reweighed on appeal, citing Ellis v. Carucci, 123 Nev. 145, 152, 161 P.3d 239, 244 (2007), and that such determinations remain within the district court's discretion, citing Ybarra v. State, 127 Nev. 47, 58, 247 P.3d 269, 276 (2011). The court explained appellate courts have an inferior vantage point reviewing cold transcripts. It cited persuasive out-of-state authority, In re Alexandria P., 204 Cal. Rptr. 3d 617, 643 (Ct. App. 2016), and State v. Davie, 264 P.3d 770, 775 (Utah 2011) (quoting State v. Goodman, 763 P.2d 786, 787 (Utah 1988)). The court observed the argument might apply if findings were clearly erroneous, citing Real Estate Division v. Jones, 98 Nev. 260, 645 P.2d 1371 (1982), but held Herman did not show the alleged errors require reversal, citing the prejudice standard in Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010). On custody, Herman did not show Nadine's credibility was determinative of the rebuttal of the domestic violence presumption or that the findings were clearly erroneous.

In plain language

Herman and Nadine Williams married in 2004 and have four children - three boys (currently 9, 12, and almost 14) and a daughter, A.W., who is the oldest and turns 18 in October 2022. During the marriage, Nadine took out student loans and earned a master's degree in nursing and now works as a nurse. Herman works as a tow truck driver for a company called Copart, earning a fee for each completed tow. Tensions began in 2018. Nadine hit A.W. with a piece of PVC pipe, leaving a scar on the child's head, which led to a Child Protective Services (CPS) investigation that closed on the understanding that the children would be in Herman's care. Nadine also committed an act of domestic violence against her own mother, Phyllis Gayle. In March 2019, Herman took the children and left the marital home; Gayle then moved in with Herman, paying him $700 per month in rent. Nadine soon filed for divorce. Before trial, the district court gave Herman temporary physical custody, with Nadine getting weekend time that gradually increased. Over time, A.W. came to prefer living with Nadine, even running away from Herman to be with her, and she stayed with Nadine by her own choice; Herman last spent parenting time with A.W. in January 2020. Interviews conducted by the Family Mediation Center (FMC) showed the children's ratings of Nadine improved over time, reportedly after Nadine stopped using physical punishment when the court told her to do so. The case went to trial in February 2021. The district court decided several issues. On custody, it applied a legal presumption against Nadine because of her acts of domestic violence (a "rebuttable presumption" is a starting assumption that can be overcome by evidence), but concluded she overcame that presumption because she stopped using corporal punishment and the children reported improved relationships with her. The court ordered joint physical custody of all four children. On alimony (financial support paid by one spouse to the other), the court found neither party credible about their income and calculated their incomes from bank records and pay information. It found Herman's income was actually higher on a monthly basis and refused to award him alimony, describing the income gap as "negligible." On debts, the court treated Herman's roughly $75,000 in medical bills and Nadine's roughly $76,000 in student loans as community debt and offset them against each other, assigning each spouse their own debt. It did not divide Nadine's master's degree. Herman appealed. He narrowed his custody challenge to just the three boys, conceding he was not seeking custody of A.W. The appellate court reached four conclusions. First, it upheld the joint physical custody order for the boys, finding no abuse of discretion. Second, it declined to decide whether Nadine's master's degree should have been divided, because Herman never raised that issue at trial - only later in a post-judgment motion - so the point was not preserved for appeal. Third, it found the district court appears to have made an error in calculating Herman's income by counting some money twice: Herman moved money between his checking and savings accounts, and those internal transfers were mistakenly counted as additional income. Because that error may have affected the alimony decision, the court vacated (canceled) the alimony determination and sent it back for a recalculation. Fourth, it declined Herman's invitation to reexamine the district court's credibility findings, explaining that appellate courts generally defer to the trial court, which actually sees and hears the witnesses.