Brofman v. Fiore

• Decision Date: 15 May 2023
• Docket Number: 83807-COA,83865-COA
• Parties: DOUGLAS BROFMAN, Appellant, v. GINA FIORE, Respondent. DOUGLAS BROFMAN, Appellant, v. GINA FIORE, Respondent.
• Court: Nevada Court of Appeals

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DOUGLAS BROFMAN, Appellant, v. GINA FIORE, Respondent.

DOUGLAS BROFMAN, Appellant, v. GINA FIORE, Respondent.

Nos. 83807-COA, 83865-COA

Court of Appeals of Nevada

May 15, 2023

UNPUBLISHED OPINION

ORDER DISMISSING APPEAL IN PART AND AFFIRMING IN PART (DOCKET NO. 83807-COA), AND DISMISSING APPEAL (DOCKET NO 83865-COA)

Gibbons, C.J.

Douglas Brofman appeals from a child custody and support decree and various post-decree orders. Eighth Judicial District Court Family Court Division, Clark County; Dawn Throne, Judge.

Brofman and respondent Gina Fiore were never married, but have one minor child together, who was born in 2015. In 2019, Fiore filed a complaint for child custody, requesting that the district court award the parties joint legal and physical custody of the child and direct that neither party would be required to pay child support. Brofman, in turn, filed an answer and counterclaim, seeking joint legal custody; primary physical custody in his favor; an award of child support in his favor; leave to relocate with the child to Cleveland Ohio; and an order requiring Fiore to repay certain loans that he allegedly made to her. After pre-trial motions, the district court held a one-and-a-half-day trial where both parties were represented by counsel.

During the trial, Fiore argued that, if Brofman was not permitted to relocate with the child, the child should attend the school for which she was zoned. Because Brofman was focused on the relocation issue, he did not present any evidence at trial concerning school choice or otherwise suggest an alternative to the school that Fiore proposed. Consequently, rather than resolving the school choice issue based solely on the evidence and testimony that Fiore presented at trial, the district court orally directed Brofman to file a memorandum addressing his preferred school for the child, and further directed Fiore to file a response. Following briefing on the school choice issue and a non-evidentiary hearing, the district court issued a custody and support decree with detailed findings of fact and conclusions of law, which denied Brofman leave to relocate to Cleveland, Ohio, with the child, awarded the parties' joint legal and physical custody, directed that the child attend the school that Fiore was zoned for, and required Fiore to pay child support to Brofman, Thereafter, several additional issues arose between the parties, which they extensively litigated. Following full briefing and hearings on these issues, the district court eventually entered orders resolving the parties' various disputes on September 20, 2021; October 20, 2021; and November 1, 2021. In particular, in the September 20 order, the district court modified the decree's vacation schedule by setting forth specific dates for the parties to take their respective vacations with the child and granted Fiore's request for make-up parenting time. In the October 20 order, the district court, among other things, (1) denied Brofman's request for an order directing Fiore to show cause why she should not be held in contempt, (2) denied Brofman's request for a new trial under NRCP 59, (3) denied Brofman's request for reconsideration and/or modification of the court's school selection determination, and (4) denied Brofman's request for an "injunction" requiring Fiore to pay certain of his attorney fees and costs and to place funds in a trust to secure payment of unspecified attorney fees and costs that he apparently intended to pursue in the future. Lastly, in the district court's November 1 orders, the district court took the following actions that are relevant to this appeal: the court (1) authorized Fiore to obtain a passport for the child without a signature from Brofman on the passport application, (2) awarded Fiore the attorney fees that she incurred in connection with the passport issue, (3) denied Brofman's challenge to a decision by the parties' parenting coordinator concerning the reallocation of her fees, (4) denied Brofman's request for sole legal custody over medical decisions, (5) awarded Fiore the attorney fees that she incurred in connection with the various issues that the court resolved in its October 20 order; and (6) implicitly denied Brofman's request for the attorney fees and costs that he incurred in connection with certain of the disputes that were resolved by the November 1 orders. Brofman filed the appeal in Docket No. 83807-COA to challenge the custody and support decree, the September 20 order, and the October 20 order, and he brought the appeal in Docket No. 83865-COA to challenge the November 1 orders.

Docket No. 83807-COA

Custody and support decree

Beginning with the decree, although Brofman is dissatisfied with the decision for several reasons, many of his arguments relate to the relief from that decision that he sought in his post-decree motions and these challenges are therefore addressed in the context of those orders. However, Brofman does present three direct challenges to the custody and support decree itself, which we address below, in turn.

In his first challenge to the decree, Brofman argues that the district court incorrectly calculated Fiore's child support obligation and that it improperly denied his request for child support arrears. However, our review of the documents before us on appeal demonstrates that this court lacks jurisdiction over this portion of Brofman's appeal. This court has jurisdiction to consider an appeal only when the appeal is authorized by statute or court rule. Brown v. MHC Stagecoach, LLC, 129 Nev. 343, 345, 301 P.3d 850, 851 (2013). Here, Brofman argues that this court has jurisdiction to hear his appeal from the decree under NRAP 3A(b)(1), which authorizes this court to hear appeals from final judgments entered in district court actions. However, as Brofman correctly observes, the district court has not entered a written order resolving his counterclaim for repayment of loans that he allegedly made to Fiore during the underlying proceeding. And because this claim remains pending below, see Div. of Child & Family Servs. v. Eighth Judicial Dist. Court, 120 Nev. 445, 454, 92 P.3d 1239, 1245 (2004) (explaining that a dispositional court order that addresses the merits of a case "must be written, signed, and filed before [it] become[s] effective"), the district court has not entered a final judgment in this case, see Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000) (providing that "a final judgment is one that disposes of all the issues presented in the case, and leaves nothing for the future consideration of the court, except for post-judgment issues such as attorney's fees and costs").

Under these circumstances, this court lacks jurisdiction to hear Brofman's challenge to the district court's child support determination, and we therefore dismiss Brofman's appeal to the extent that it is directed at that portion of the decree.

Nevertheless, the custody portion of the decree finally establishes a custody arrangement for the parties' child and is therefore appealable under NRAP 3A(b)(7) (authorizing appeals from orders finally establishing or altering custody of minor children, provided that the orders were not entered in juvenile court actions) to the extent that Brofman challenges issues pertaining to child custody. Thus, we turn to Brofman's second challenge to the decree, which pertains to the custody determination itself. In particular, Brofman argues that, in resolving custody issues, the court improperly admitted reports from the parties' independent medical examinations for various reasons and that it misinterpreted the reports. However, Brofman concedes that his trial counsel stipulated to the admission of the reports, and given that stipulation, Brofman waived any challenge to their admissibility.^[1] See Second Baptist Church of Reno v. Mount Zion Baptist Church, 86 Nev. 164, 172, 466 P.2d 212, 217 (1970) (recognizing that "[stipulations are of an inestimable value in the administration of justice" and that "valid stipulations are controlling and conclusive and both trial and appellate courts are bound to enforce them"); see also Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A point not urged in the trial court ... is deemed to have been waived and will not be considered on appeal.").

Moreover, while Brofman asserts that the district court misinterpreted the reports, we cannot fully evaluate his argument because he did not provide this court with a transcript from the portion of the trial where the reports were seemingly discussed, and because the reports are not otherwise specifically referenced in the custody decree. Instead, we presume that the missing transcript supports the district court's decision. See Cuzze v. Univ. & Cmty. Coll Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007) (explaining that it is appellant's burden to ensure that a proper appellate record is prepared and that Nevada's appellate courts presume that materials missing from the trial court record support the district court's decision). Thus, given the foregoing, we conclude that Brofman failed to demonstrate that the district court abused its discretion by admitting the reports or that any factual findings based on the reports were clearly erroneous. See Abid v. Abid, 133 Nev. 770, 772, 406 P.3d 476, 478 (2017) (providing that the district court's decision to admit or deny evidence is reviewed for an abuse of discretion); see also Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009) (recognizing that the district court's factual findings are entitled to deference and will not be disturbed unless they are clearly erroneous or not supported by substantial evidence).

Turning to Brofman's third...