Davis v. Davis
| Decision Date | 31 December 1998 |
| Docket Number | No. 31003,31003 |
| Citation | 970 P.2d 1084,114 Nev. 1461 |
| Parties | . Michael DAVIS, Respondent. Supreme Court of Nevada |
| Court | Nevada Supreme Court |
In 1989, appellant Courtney Davis and respondent Michael Davis were married in Fort Walton Beach, Florida. While still living in Florida, Courtney gave birth to the couple's first child, Shauna. In 1991, Courtney, Michael and Shauna moved to Las Vegas when the Air Force transferred Michael to Nellis Air Force Base. In March 1992, Courtney gave birth to the couple's second child, Sydney.
In December, 1995, Courtney filed a complaint for divorce with the district court. In January of 1996, Michael filed an answer and counterclaim for divorce. Following a January 1996 hearing, the district court awarded the parties joint legal and physical custody of the children. The district court temporarily designated Courtney as the primary physical custodian; Michael received four days of visitation per week with the children.
Following a somewhat acrimonious dispute over property division and child custody, the parties entered into a handwritten agreement (the "agreement"), prepared by Michael's attorney. This agreement settled all matters pertaining to the divorce, including division of the couple's assets and debts. The agreement additionally provided that Michael and Courtney would maintain the custodial arrangement established by the district court in 1996.
Shortly after signing the agreement, Courtney decided that because she could no longer sustain herself financially in Las Vegas, she would return to Fort Walton Beach, Florida. Without first seeking Michael's permission to relocate, Courtney filed a petition with the district court to move with the children pursuant to NRS 125A.350.
At the hearing on Courtney's petition to relocate, Courtney told the court that she intended to finalize the custody dispute by entering into the agreement but that she had changed her mind about living in Las Vegas since signing it. Courtney also testified about the financial hardship she suffered by remaining in Las Vegas. Additionally, Courtney testified about the benefits of relocating to Florida. She noted that Fort Walton has been rated among the best small towns in which to live and its schools consistently receive high ratings. Courtney further testified that she and the children could live with her parents in their large home until she could support herself and the children financially. Courtney told the court that this would be an obvious improvement from the converted garage where she and the children were living at the time of the hearing. Moreover, Courtney testified that this living arrangement would allow the children to spend more time with their grandparents with whom the children have a close relationship. She testified as well that her parents had offered to watch the children while she worked and attended college classes. Courtney also represented that she had an outstanding job offer at a credit union in Fort Walton.
Courtney admitted on cross-examination, however, that she works only part-time and had not attempted to find full-time work in Las Vegas, even though the district court advised her to seek a position that would allow her to work twenty to thirty hours per week. Additionally, Courtney admitted that she would earn less per hour at the job in Florida than she does at her current job in Las Vegas. Courtney's testimony further revealed that she only planned to live with her parents for three to six months and did not know where she would go thereafter. Moreover, while Courtney could not assure the court that the children would have medical insurance or other benefits through her prospective Florida employer, the children were covered under Michael's medical insurance at the time of the hearing.
Through an affidavit, Michael submitted his belief that Courtney deceptively entered into the handwritten agreement in order to receive the financial settlement it offered Courtney. Michael pointed out that in the agreement, Courtney agreed to have custody of the children on a four/five day rotating schedule and shortly thereafter reneged on that arrangement.
At the hearing, Michael testified that Courtney refused to communicate and co-parent with him. According to Michael, Courtney never discussed with him her intention to relocate with the children. In fact, Michael testified that he learned of Courtney's plan only after he received her motion. Michael also testified that Courtney contacted Child Protective Services ("CPS") and reported that Michael strangled one of the children. CPS later dismissed these charges against Michael, stating that Courtney's claims were unsubstantiated.
At a March hearing, the district court explained that it believed, with some hesitance, that Courtney's reasons for the move were legitimate and that her decision to relocate was made in good faith. Despite these conclusions, the court denied Courtney's petition to relocate because it could not fashion a feasible alternative visitation schedule for Michael.
The district court went on to explain that Michael's work schedule made it impossible to compensate him for the time he would lose with the children should they move to Florida. At the time of the hearing, Michael worked as a firefighter, a job which required him to work four consecutive twenty-four hour shifts every eight days. The court stated that summer and alternative Christmas visitation would force Michael to arrange for twenty-four hour childcare thereby depriving him of a significant amount of contact with the children. Therefore, the district court denied Courtney's request to relocate. This timely appeal followed.
Pursuant to NRS 125A.350, a custodial parent who wishes to move with a child to a location outside of Nevada must attempt to obtain the other parent's written consent. If the other parent refuses to consent to the move, the parent planning to move must petition the district court for permission to move with the child. In Culbertson v. Culbertson, 91 Nev. 230, 233, 533 P.2d 768, 770 (1975), this court stated that decisions as to child custody rest within the sound discretion of the district court and will not be disturbed absent a clear abuse of that discretion.
This court first analyzed NRS 125A.350 in Schwartz v. Schwartz, 107 Nev. 378, 382, 812 P.2d 1268, 1270 (1991), where it explained that the statute's "overall purpose ... is to preserve the rights and familial relationship of the noncustodial parent." In describing the district court's role in evaluating a parent's request to move, this court...
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