216 P.3d 213 (Nev. 2009), 46915, Rivero v. Rivero

Docket Nº:46915.
Citation:216 P.3d 213
Opinion Judge:GIBBONS, J.
Party Name:Michelle RIVERO, Appellant, v. Elvis RIVERO, Respondent.
Attorney:Steinberg Law Group and Brian J. Steinberg and Jillian M. Tindall, Las Vegas, for Appellant. Bruce I. Shapiro, Ltd., and Bruce I. Shapiro, Henderson, for Respondent. Fahrendorf, Viloria, Oliphant & Oster, LLP, and Raymond E. Oster, Reno, for Amicus Curiae State Bar of Nevada, Family Law Section.
Judge Panel:We concur: HARDESTY, C.J., and PARRAGUIRRE, DOUGLAS, CHERRY, and SAITTA, JJ. PICKERING, J., concurring in part and dissenting in part.
Case Date:August 27, 2009
Court:Supreme Court of Nevada
 
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216 P.3d 213 (Nev. 2009)

Michelle RIVERO, Appellant,

v.

Elvis RIVERO, Respondent.

No. 46915.

Supreme Court of Nevada, En Banc.

August 27, 2009

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          Steinberg Law Group and Brian J. Steinberg and Jillian M. Tindall, Las Vegas, for Appellant.

          Bruce I. Shapiro, Ltd., and Bruce I. Shapiro, Henderson, for Respondent.

          Fahrendorf, Viloria, Oliphant & Oster, LLP, and Raymond E. Oster, Reno, for Amicus Curiae State Bar of Nevada, Family Law Section.

          OPINION

          GIBBONS, J.

         We previously issued an opinion in this case on October 30, 2008, affirming in part, reversing in part, and remanding. Respondent Elvis Rivero's petition for rehearing followed. We then ordered answers to the petition from appellant Michelle Rivero and amicus curiae, the State Bar of Nevada Family Law Section.

         We will consider rehearing when we have overlooked or misapprehended material facts or questions of law or when we have overlooked, misapplied, or failed to consider legal authority directly controlling a dispositive issue in the appeal. NRAP 40(c)(2). Having considered the petition and answers thereto in light of this standard, we conclude that rehearing is not warranted. Therefore, we deny the petition for rehearing. Although we deny rehearing, we withdraw our October 30, 2008, opinion and issue this opinion in its place.

         Ms. Rivero and Mr. Rivero stipulated to a divorce decree that provided for " joint physical custody" of their minor child, with Ms. Rivero having the child five days each week and Mr. Rivero having the child two days each week. The decree awarded no child support. Less than two months after entry of the divorce decree, Ms. Rivero brought a motion to modify child support. The district court dismissed the motion. Less than one year later, Ms. Rivero brought a motion to modify child custody and support. The district court ordered that the decree would remain in force, with the parties having joint custody of their child and neither party receiving child support. The district court deferred ruling on the motion to modify custody and ordered the parties to mediation to devise a timeshare plan.

         Ms. Rivero then requested that the district court judge recuse herself. When the judge refused to recuse herself, Ms. Rivero moved to disqualify her. The Chief Judge of the Eighth Judicial District Court denied Ms. Rivero's motion for disqualification, concluding that it lacked merit. The district court later awarded Mr. Rivero attorney fees for having to defend Ms. Rivero's disqualification motion.

         At the court-ordered mediation, the parties were unable to reach a timeshare agreement. Following mediation, after a hearing, the district court modified the custody arrangement from a five-day, two-day split to an equal timeshare. Ms. Rivero appeals.

         We are asked to resolve several custody and support issues on appeal. Preliminarily, the parties dispute the definition of joint physical custody. Additionally, Ms. Rivero challenges the following district court rulings: (1) the court's determination that the parties had joint physical custody, (2) the court's modification of the custody arrangement, (3) the court's denial of her motion for child support, (4) the district court judge's refusal to recuse herself and the chief judge's denial of Ms. Rivero's motion for disqualification, and (5) the court's award of attorney fees to Mr. Rivero for defending against Ms. Rivero's disqualification motion.

          Initially, to address the definition of joint physical custody, we define legal custody, including sole legal custody and joint legal custody. We then define physical custody, including joint physical custody and primary physical custody. In defining joint physical custody, we adopt a definition that focuses on minor children having frequent associations and a continuing relationship with both parents and parents sharing the rights and responsibilities of child rearing. Consistent

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with the recommendation of the Family Law Section, this joint physical custody definition requires that each party have physical custody of the child at least 40 percent of the time. We then address the district court's rulings.

          First, we address the district court's finding that the parties had a joint physical custody arrangement. In reaching our conclusion, we clarify that parties may enter into custody agreements and create their own custody terms and definitions. The courts may enforce such agreements as contracts. However, once the parties move the court to modify the custody agreement, the court must use the terms and definitions under Nevada law. In this case, the district court properly disregarded the parties' definition of joint physical custody in the divorce decree and applied Nevada law in determining that an equal timeshare was appropriate. Although it reached the proper conclusion, the district court abused its discretion by failing to set forth specific findings of fact to support its determination.

         Second, we conclude that the district court abused its discretion by modifying the custody timeshare arrangement without making specific findings of fact that the modification was in the child's best interest.

         Third, we conclude that the district court abused its discretion by denying Ms. Rivero's motion to modify child support without making any factual findings to justify its decision. We also clarify the circumstances under which a district court may modify a child support order. Under NRS Chapter 125B and our caselaw, a court has authority to modify a child support order upon a finding of a change in circumstances since the prior order. Also, in accordance with the Family Law Section's suggestion, we withdraw the Rivero formula for calculating child support.

         Fourth, we conclude that the district court judge properly refused to recuse herself, and the chief judge properly denied Ms. Rivero's motion for disqualification. The record contains no evidence that the district court judge had personal bias against either of the parties.

         Fifth and finally, we conclude that the district court abused its discretion by awarding Mr. Rivero attorney fees as a sanction for Ms. Rivero's disqualification motion because the district court made no determination whether the motion was frivolous, and no evidence supports the sanction.

          FACTS AND PROCEDURAL HISTORY

         Ms. Rivero filed a complaint for divorce, and the parties eventually reached a settlement. The district court entered a divorce decree incorporating the parties' agreement. The parties agreed to joint physical custody of the child, with Ms. Rivero having physical custody five days each week and Mr. Rivero having physical custody for the remaining two days. The divorce decree also reflected the parties' agreement that neither party was obligated to pay child support.

         Less than two months after entry of the divorce decree, Ms. Rivero moved the court to modify the decree by awarding her child support. The district court dismissed her motion. Less than one year later, Ms. Rivero moved the district court for primary physical custody and child support. She alleged that Mr. Rivero did not spend time with the child, that instead his elderly mother took care of the child, and that he did not have suitable living accommodations for the child. Ms. Rivero also argued that she had de facto primary custody because she cared for the child most of the time. Mr. Rivero countered that Ms. Rivero denied him visitation unless he provided food, clothes, and money and denied him overnight visitation once he became engaged to another woman. Mr. Rivero requested that the district court enforce the 5/2 timeshare in the divorce decree, or, alternatively, order a 50/50 timeshare.

          The district court held a custody hearing, during which the parties presented contradictory testimony regarding how much time Mr. Rivero actually spent with the child. The district court ruled that the matter did not warrant an evidentiary hearing. The district court further found that the use of the term joint physical custody in the divorce decree did not accurately reflect the timeshare arrangement that the parties were actually practicing, in which Ms. Rivero seemed to have physical custody most of the time. As a result, the court denied Ms. Rivero's

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motion for child support, found that the parties had joint physical custody, and ordered the parties to mediation to establish a more equal timeshare plan to reflect a joint physical custody arrangement.

         After the mediation, but before the next district court hearing, Ms. Rivero served a subpoena on Mr. Rivero's employer for his employment records. The district court granted Mr. Rivero's motion to quash the subpoena, explaining that under the divorce decree, each party had joint physical custody, neither party owed child support, and the only pending issue was whether the parties could agree on a timeshare plan. Ms. Rivero then argued that the district court should reopen the child support issue and allow relevant discovery.

         When the district court refused, Ms. Rivero requested that the district court judge recuse herself. The district court judge denied the request. Ms. Rivero then moved to disqualify the district court judge, alleging that the judge did not seriously consider the facts or the law because she was biased based on the parties' physical appearance. Mr. Rivero opposed the motion and moved for attorney fees. The district court judge submitted an affidavit in which she swore that she was unbiased. After considering Ms. Rivero's motion to disqualify the district court judge...

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