Castle v. Simmons
| Decision Date | 01 April 2004 |
| Docket Number | No. 38989.,38989. |
| Citation | 120 Nev. 98,86 P.3d 1042 |
| Parties | Carol CASTLE, f/k/a Carol Simmons, Appellant, v. Jon SIMMONS, Respondent. |
| Court | Nevada Supreme Court |
David D. Loreman, Elko, for Appellant.
Easterly Armstrong & Lambert and John E. Lambert, Elko, for Respondent.
Before the Court En Banc.1
In this appeal, we primarily consider whether the district court, in granting a motion to change child custody, properly considered evidence of domestic violence that occurred before the parties' divorce decree was entered. We conclude that a party seeking to change custody may introduce evidence of domestic violence if he or she or the district court was unaware of the existence or extent of the conduct when the prior custody order was entered. Consequently, in this case, the district court did not err in considering the pre-decree domestic violence evidence.
Jon and Carol were married on June 22, 1979, and divorced August 13, 1998. The marriage produced six children. The divorce decree incorporated a settlement agreement that awarded "full legal and physical" custody of the minor children to Carol, subject to specifically defined "reasonable" visitation and Jon's obligation to pay child support.
After the divorce, Jon learned from his two oldest children that Carol, before and after entry of the original degree and award of custody, engaged in acts of domestic violence against them and their younger siblings, the extent of which he was previously unaware. Thereafter, Jon sought to modify the custody arrangement, relying on the alleged instances of domestic abuse before and after the divorce. The district court granted Jon's ex parte application for temporary custody. The parties then stipulated to share custody of the three remaining minor children pending a final ruling on the motion to modify, and an evidentiary hearing was scheduled.
The hearing was held over four separate court sessions in November 2001. Independent counsel represented the children. More than twenty witnesses, including an expert retained by Carol, presented conflicting testimony as to whether and the extent to which Carol had engaged in acts of domestic violence before and after entry of the divorce decree. Finally, a court-appointed child advocate testified that, based upon interviews with the children, custody should be transferred from Carol to Jon.
Although not mentioning the recommendations of the child advocate in its decision, the district court found that clear and convincing evidence supported the claims of Carol's abuse, including instances of mutual combat, physical beatings, kicking, hair pulling, and scratching, accompanied by screaming and yelling. In concluding that a change in custody was warranted, the district court followed NRS 125C.230(1), which creates a presumption that when a parent engages in domestic violence, that parent's sole or joint custody of the children is not in the children's best interest. In the court's view, Carol had not rebutted this presumption. The district court then determined that changed circumstances were demonstrated, i.e., changes in demeanor and problems with visitation, and that Jon was not aware of the extent of the physical abuse until the summer of 2000, when two of the children apprised him of the extent of the abuse. Accordingly, the district court ordered that custody of the three minor children be changed from Carol to Jon.
Carol appeals, primarily contending that the district court abused its discretion in considering allegations of pre-decree misconduct, in finding that instances of abuse were shown by clear and convincing evidence, in failing to find that any showing of abuse was rebutted, in finding that Jon satisfactorily established a change in circumstances between the entry of the divorce decree in 1998 and the ex parte application to change custody in 2001, and in concluding that modification was in the children's best interest.
Standard of review
Unless there has been a clear abuse of discretion, we will not disturb, on appeal, a district court's determination of child custody.2
Rebuttable presumption in domestic violence cases
In light of the dangers that domestic violence poses to a child's physical, emotional and mental health, our Legislature enacted NRS 125C.230(1), which creates a rebuttable presumption that a person who has engaged in one or more acts of domestic violence should not be given custody of a child:
Clear and convincing evidence of domestic violence
Carol argues that clear and convincing evidence did not exist for the district court to conclude that acts of domestic violence had been committed against any of the children. We disagree.
We initially note that by requiring the court, under NRS 125C.230(1), to conduct a hearing and to find by clear and convincing evidence that domestic violence occurred, the Legislature has protected innocent parents from unfounded allegations. Here, the court heard testimony from over twenty witnesses, including the minor children of the marriage. Admittedly, some of the evidence given by the children was either internally inconsistent or was contradicted in some way. Carol conceded, however, that one very serious physical altercation occurred with one of the children, and the children reported instances of kicking, punching, and administration of beatings with a blunt object (a hairbrush) causing significant bleeding. At least one of these instances was corroborated by the oldest child's companion.
The district court ruled on the totality of the evidence as follows:
Based upon the testimony of [three of the children], the Court finds by clear and convincing evidence that Carol committed acts of domestic violence against the ... children. The court credits the testimony of [three daughters] and Jon, and does not credit any testimony to the contrary. To the extent that the physical altercations implicate conditions arguably amounting to "provocation" or "mutual combat," the Court finds that Carol was the primary aggressor. This finding is based upon the testimony indicating a history of this type of behavior, and self defense type actions by other persons in the family.
....
... Most significantly, the extent of the domestic violence was revealed to Jon post-divorce, and there have been post-divorce incidents of domestic violence. [One daughter] has expressed her desire to live with her father. [Another daughter] has recently experienced a change in demeanor, in which she has become withdrawn and distant.
While Carol makes numerous assessments of the credibility of Jon's witnesses, we will not reweigh the credibility of witnesses on appeal; that duty rests within the trier of fact's sound discretion.4 We conclude that substantial evidence supports the district court's finding of domestic violence by clear and convincing evidence.5
Custody modification
Carol argues that the district court should not have relied upon evidence of alleged physical abuse that occurred before the divorce. Further, Carol argues that the district court erred in determining that Jon satisfied the analysis under Murphy v. Murphy6 for custody modification.
In Murphy, we adopted a two-part test for custody changes, which applies when one parent has primary physical custody: "A change of custody 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."7 Murphy's first "changed circumstances" prong is required by most courts and is based on the principle of res judicata.8 As we recognized in Mosley v. Figliuzzi,9 res judicata prevents "persons dissatisfied with custody decrees [from filing] immediate, repetitive, serial motions until the right circumstances or the right judge allows them to achieve a different result, based on essentially the same facts."
We utilized the Murphy test in two noteworthy subsequent cases: McMonigle v. McMonigle10 and Hopper v. Hopper.11 These cases relied on an Oregon case, Stevens v. Stevens,12 in concluding that " "13 In McMonigle, the custodial parent had relocated before the final decree was entered, and the decree reflected this relocation. The non-custodial parent then moved for a change of custody. In granting the motion, the district court was "preoccupied" with the custodial parent's relocation.14 Additionally, the court considered evidence that before the divorce decree was entered, the custodial parent had failed to provide the non-custodial parent with reports about the child.15 On appeal, this court reversed the district court's order changing custody, stating that the district court had improperly relied on inadmissible pre-decree evidence in rendering its decision.16
In Hopper, the parties stipulated to...
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