161 P.3d 239 (Nev. 2007), 43925, Ellis v. Carucci

Docket Nº:43925.
Citation:161 P.3d 239, 123 Nev. 18
Party Name:Melinda ELLIS, Appellant, v. Roderic A. CARUCCI, Respondent.
Attorney:Karla K. Butko, Verdi, for Appellant., Jack Sullivan Grellman, Reno, for Respondent.
Case Date:June 28, 2007
Court:Supreme Court of Nevada

Page 239

161 P.3d 239 (Nev. 2007)

123 Nev. 18

Melinda ELLIS, Appellant,


Roderic A. CARUCCI, Respondent.

No. 43925.

Supreme Court of Nevada

June 28, 2007

Appeal from a district court order modifying child custody. Second Judicial District Court, Family Court Division, Washoe County; Deborah Schumacher, Judge.

Page 240

Karla K. Butko, Verdi, for Appellant.

Jack Sullivan Grellman, Reno, for Respondent.

Before the Court En Banc.



In this appeal, we consider the circumstances under which a district court may modify primary physical custody of a minor child. In the past, this court has applied the two-prong test established in Murphy v. Murphy to determine when a modification of primary physical custody is appropriate. 1 Under the Murphy test, a modification is "warranted only when: (1) the circumstances of the parents have been materially altered; and (2) the child's welfare would be substantially enhanced by the change." 2 After Murphy was decided in 1968, however, the Legislature overhauled Nevada's child custody laws to focus solely on the best interest of the child. 3 In light of this legislative shift, we take this opportunity to revisit the Murphy test and now conclude that a modification of primary physical custody is warranted only when (1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the modification serves the best interest of the child. Applying the revised standard to this case, we perceive no abuse of discretion on the part of the district court in its decision to modify primary physical custody. Accordingly, we affirm the district court's order.


In December 2000, respondent Roderic Carucci and appellant Melinda Ellis stipulated to a decree of divorce. This decree incorporated a paternity and child custody agreement between the parties and provided that Carucci and Ellis would share joint legal custody of their daughter, Geena, with Ellis having primary physical custody and Carucci having liberal visitation.

Carucci files a motion to modify custody

In March 2004, Carucci filed a motion to modify primary physical custody, arguing that the circumstances warranted a change in custody because, among other things, Geena's school performance was in decline. After Carucci filed a second emergency motion to modify custody, the district court set the matter for a hearing.

At the hearing, Bridgett Banta, Geena's elementary school teacher, testified that Geena, an exceptionally bright student, performed very well during the first two quarters of the school year but had struggled during the third and fourth quarters. Banta explained, for example, that Geena's weekly progress reports between December 2003 and March 2004 included several notations indicating that Geena had failed to turn in homework and had been talking in class. Banta also testified that Geena's school performance had dropped significantly because she was not applying herself as she had in the past. According to Banta, Geena did not complete her assignments and refused to revise her work when Banta requested that Geena do so.

Banta further testified that she often discussed Geena's academic performance with

Page 241

Carucci because he regularly inquired about her progress, but, by contrast, Banta had very little contact with Ellis. In summary, Banta concluded that Geena's school performance had deteriorated and that she needed more encouragement from both parents.

Following Banta's testimony, the district court noted that it had concerns about Geena's school performance but concluded that the circumstances did not justify an emergency change in custody. As a result, the district court scheduled the matter for an evidentiary hearing. The parties agreed to perpetuate Banta's testimony so that she would not need to testify again. In addition, the parties stipulated that Dr. Joann Lippert would conduct a family evaluation and submit a report to the district court.

The evidentiary hearing on Carucci's motion took place in July 2004, with Dr. Lippert, Carucci, and Ellis testifying. 4 Dr. Lippert testified regarding Geena's strong attachment to both of her parents and her desire to maintain a relationship with each of them. She also recommended that Carucci and Ellis share physical custody of Geena. In making her recommendation, Dr. Lippert noted that Geena's best interest would be served if both of her parents were actively involved in their daughter's education and were able to provide Geena with assistance and guidance.

Carucci testified that he met with Banta at least once every two weeks to discuss Geena's progress in school and frequently communicated with Banta through e-mail. Separately, Carucci asserted that because he and his new wife emphasize education, he believed they could best assist Geena in her studies.

Similarly, Ellis testified that she and her new husband often assisted Geena with her homework. Ellis also claimed that Geena's mood and academic performance had begun to decline in January 2004, and Ellis believed this decline was due to increased stress from her parents' ongoing custody disputes.

The district court grants Carucci's motion to modify custody

Following the evidentiary hearing, the district court entered a written order granting Carucci's motion to modify primary physical custody. In its order, the court determined that joint physical custody was in Geena's best interest and thus modified the custody arrangement so that Carucci and Ellis would alternate week-long custody of their daughter. The district court stated that Geena's school performance was the key substantial issue litigated and concluded that Banta's testimony that Geena's academic achievement had significantly slipped constituted sufficient evidence of changed circumstances to warrant a modification. The district...

To continue reading