WOOTEN VS. WOOTEN (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

**Service of process (waiver).** The court applied the rule that an objection to personal jurisdiction, process, or service of process is waived if not raised as a defense in an answer or pre-answer motion under NRCP 12. Hansen v. Eighth Jud. Dist. Ct., 116 Nev. 650, 656-57 & n.4, 6 P.3d 982, 986 & n.4 (2000); Dougan v. Gustaveson, 108 Nev. 517, 521 n.4, 835 P.2d 795, 798 n.4 (1992). Although Lauren raised improper service in her motion to set aside the default decree, she did not seek dismissal on that basis; she instead sought adjudication on the merits. The court held she thereby consented to jurisdiction and waived the service defense, and declined to consider it on appeal under Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). **Subject matter jurisdiction (UCCJEA), reviewed de novo.** The court reviewed subject matter jurisdiction de novo, deferring to factual findings unless clearly erroneous and if supported by substantial evidence. Ogawa v. Ogawa, 125 Nev. 660, 667-68, 221 P.3d 699, 704 (2009). The UCCJEA, codified at NRS Chapter 125A, exclusively governs subject matter jurisdiction over child custody. NRS 125A.305(2); Friedman v. Eighth Jud. Dist. Ct., 127 Nev. 842, 847, 264 P.3d 1161, 1165 (2011). Under NRS 125A.305(1)(b), Nevada may exercise jurisdiction where another state lacks jurisdiction or the home state has declined jurisdiction on the ground that Nevada is the more appropriate forum, together with a significant connection and substantial evidence in Nevada. The district court conducted an interstate judicial conference, consistent with NRS 125A.355(2). Both courts found the child had no home state in 2020 (no six-month residency before the December 31, 2020 filing), that the child had resided in Nevada roughly four months before filing and was in Nevada when the case was filed, and that Nevada was the more appropriate forum given first filing and an existing custody order. Florida declined jurisdiction, so Nevada had jurisdiction under NRS 125A.305(1)(b). The findings were supported by substantial evidence. **Physical custody, reviewed for abuse of discretion.** Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007). An abuse of discretion occurs where "no reasonable judge could reach a similar conclusion under the same circumstances." Leavitt v. Siems, 130 Nev. 503, 509, 330 P.3d 1, 5 (2014). Factual findings are affirmed if supported by substantial evidence; the sole consideration is the best interest of the child. NRS 125C.0035(1); Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015). A court may award one parent primary physical custody if joint physical custody is not in the child's best interest. NRS 125C.003(1). The appellate court will not reweigh evidence or credibility. Ellis, 123 Nev. at 152, 161 P.3d at 244; Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000). It presumes proper exercise of discretion where the district court made substantial factual findings. Culbertson v. Culbertson, 91 Nev. 230, 233-34, 533 P.2d 768, 770 (1975). On the exclusion of Lauren's untimely-disclosed exhibits, the court reviewed for abuse of discretion under Abid v. Abid, 133 Nev. 770, 772, 406 P.3d 476, 478 (2017), and NRCP 37(c)(1), and found no abuse where the exhibits were not timely disclosed (Lauren was permitted to use certain of Taylor's text messages for credibility purposes). The district court expressly weighed the best-interest factors of NRS 125C.0035(4), emphasizing NRS 125C.0035(4)(c) (frequent associations/continuing relationship), NRS 125C.0035(4)(g) (cooperation and meeting the child's needs), and NRS 125C.0035(4)(l). Substantial evidence supported the findings. **Legal custody / final decision-making authority, reviewed for abuse of discretion.** Ellis, 123 Nev. at 149, 161 P.3d at 241; Kelley v. Kelley, 139 Nev., Adv. Op. 39, 535 P.3d 1147, 1153 (2023). Parents need not have equal decision-making power in joint legal custody, and one parent may have decision-making authority over particular areas such as education or healthcare. Rivero v. Rivero, 125 Nev. 410, 421, 216 P.3d 213, 221 (2009), overruled on other grounds by Romano v. Romano, 138 Nev. 1, 6, 501 P.3d 980, 984 (2022), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op. 43, 535 P.3d 1167, 1171 (2023). No abuse of discretion was found in awarding Taylor final decision-making authority for important educational or urgent medical decisions when the parties cannot agree. **Child support, reviewed for abuse of discretion.** Edgington v. Edgington, 119 Nev. 577, 588, 80 P.3d 1282, 1290 (2003). Abuse occurs where findings lack substantial evidence, Miller v. Miller, 134 Nev. 120, 125, 412 P.3d 1081, 1085 (2018); substantial evidence is that which a reasonable person may accept as adequate to sustain a judgment, Ellis, 123 Nev. at 149, 161 P.3d at 242. Review is deferential but does not defer to legal error or conclusory findings. Davis, 131 Nev. at 450, 352 P.3d at 1142. The governing statutes: NRS 125B.020(1) (duty to support); NRS 125B.030 (physical custodian may recover a reasonable portion of the cost of care from the noncustodial parent). Under NAC 425.115(2), a primary physical custodian is the obligee and the other party the obligor. A support order must be based on the obligor's earnings, income, and ability to pay, with a rebuttable presumption that NAC Chapter 425 guidelines meet the child's needs. NAC 425.100(1), (2). Deviations require supporting findings. NAC 425.100(3). Downward adjustments are discretionary and may account for transportation costs for visitation and the parties' relative incomes. NAC 425.150(1)(e), (f). Taylor requested support in his pretrial memorandum, and the court was required under NAC 425.115(2) to determine Lauren's obligation. The court considered Lauren's finances, the parties' incomes, transportation costs to Florida, and extracurricular costs (NRS 125B.030), found a downward adjustment warranted, and set support at $300 per month. Substantial evidence supported the award. **Child support arrears, reviewed for abuse of discretion.** Under NRS 125B.030, district courts have discretion to award arrears for the reasonable portion of costs provided by the physical custodian; "[m]ay" is generally permissive. Ewing v. Fahey, 86 Nev. 604, 607, 472 P.2d 347, 349 (1970). The court rejected Lauren's request for $41,066.70 (also referenced as $41,088.70) because Taylor credibly testified he provided financial support even after the relocation. The finding was supported by substantial evidence; the appellate court would not reweigh evidence or credibility. Miller, 134 Nev. at 125, 412 P.3d at 1085; Ellis, 123 Nev. at 152, 161 P.3d at 244; Quintero, 116 Nev. at 1183, 14 P.3d at 523. **Attorney fees, reviewed for abuse of discretion.** Miller v. Wilfong, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005); Otak Nev., LLC v. Eighth Jud. Dist. Ct., 129 Nev. 799, 805, 312 P.3d 491, 496 (2013). Lauren invoked NRS 125C.0689, which authorizes fees in a custodial proceeding under the Uniform Deployed Parents Custody and Visitation Act (UDPCVA), codified at NRS 125C.0601 to 125C.0698, where a party proceeded in bad faith or intentionally failed to comply with the UDPCVA. Because this matter was not brought under the UDPCVA and neither party was a deployed parent, NRS 125C.0689 was inapplicable; the court also found Taylor did not proceed in bad faith. Lauren's undeveloped prevailing-party argument was rejected under Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). **Footnote (disqualification request).** In a footnote, the court declined to address Taylor's suggestion (in his fast track response) that Lauren's appellate counsel be disqualified, noting relief must be sought by motion under NRAP 27(a)(1), not through briefing.

In plain language

Lauren and Taylor Wooten were married and had one child together. On December 31, 2020, Taylor filed for divorce in Nevada and asked for joint legal custody and primary physical custody (the arrangement where a child lives most of the time). Taylor's papers said Lauren had been served with the divorce documents at her Florida home. Lauren did not respond in time, and the court entered a divorce decree giving Taylor primary physical custody. Lauren then asked the court to undo the decree, arguing she had not been properly served because the documents went to a former address. In that same request, she asked for primary physical custody herself, for child support, and said the child had lived with her in Florida since 2019. The court decided to keep the parties divorced but to reopen and decide the disputed custody and support issues on their merits. Because Lauren argued the child's "home state" was Florida, the Nevada court held a conference with a Florida judge to figure out which state should decide custody, as required under a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) - a set of rules that decides which state's courts handle a child custody case. The judges concluded the child had no true "home state" in 2020 because he had not lived in either state for six straight months before the case was filed. Since the Nevada case was filed first and a custody order already existed there, the Florida judge declined to take the case, and Nevada kept jurisdiction. After an evidentiary hearing where both parents testified, the court gave the parties joint legal custody but gave Taylor final say on important educational and urgent medical decisions when the parents could not agree. It also gave Taylor primary physical custody. The court found, among other things, that Lauren had moved to Florida with the child without Taylor's consent, had at times blocked Taylor's communications, and had withheld the child during the holidays, while Taylor was more focused on the child's needs and made sure the child wore his prescription eyeglasses. On money, the court ordered Lauren to pay Taylor $300 per month in child support - a reduced amount, adjusted downward to account for the cost of transporting the child to Florida for Lauren's parenting time and the parties' relative incomes. It also had the parties split extracurricular costs. The court rejected Lauren's later request for about $41,000 in back child support, finding Taylor had credibly testified that he supported the child financially even after the move. The court denied both sides' requests for attorney fees. The Court of Appeals affirmed everything. On service of process, it held Lauren had given up that argument because she asked the court to decide the case on the merits instead of asking it to dismiss. On the other issues, it found the district court's decisions were supported by the evidence and within its discretion, and it noted that an appeals court does not reweigh evidence or second-guess a trial judge's credibility findings.