Ellis v. Carucci
| Decision Date | 28 June 2007 |
| Docket Number | No. 43925.,43925. |
| Citation | 161 P.3d 239 |
| Parties | Melinda ELLIS, Appellant, v. Roderic A. CARUCCI, Respondent. |
| Court | Nevada Supreme Court |
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 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 court further concluded that Carucci was the parent most involved in Geena's education and, as a result, a modified arrangement allowing Carucci to become her joint physical custodian would serve Geena's best interest. In reaching its conclusion, the district court felt constrained by the Murphy test and found that, in this instance, the child's best interest was paramount. Ellis appealed the court's order.
On appeal, Ellis contends that the district court abused its discretion by granting Carucci's motion to modify primary physical custody of their daughter because the evidence does not demonstrate a change in circumstances or that the modification would be in their daughter's best interest. We disagree.
Standard of review
We have repeatedly recognized the district court's broad discretionary powers to determine child custody matters, and we will not disturb the district court's custody determinations absent a clear abuse of discretion.5 However, the district court must have reached its conclusions for the appropriate reasons.6 In reviewing child custody determinations, we will not set aside the district court's factual findings if they are supported by substantial evidence,7 which is evidence that a reasonable person may accept as adequate to sustain a judgment.8
Modification of child custody
In Nevada, when a district court determines the custody of a minor child, "the sole consideration of the court is the best interest of the child."9 Under NRS 125.480(4), "[i]n determining the best interest of the child, the court shall consider and set forth its specific findings concerning, among other things . . . (g) The physical, developmental and emotional needs of the child." Although "the court may . . . [a]t any time modify or vacate its order" upon "the application of one of the parties,"10 because numerous courts have documented the importance of custodial stability in promoting the developmental and emotional needs of children,11 we acknowledge that courts should not lightly grant applications to modify child custody.
We first recognized the importance of custodial stability in Murphy v. Murphy, where we concluded that "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."12 Since then, this court has consistently applied the Murphy test in determining whether the district court has properly granted a motion to modify primary physical custody. While the underlying premise behind the Murphy standard, which aims to promote stability by discouraging the frequent relitigation of custody disputes, still applies today, we conclude that the Murphy standard unduly limits courts in their determination of whether a custody modification is in the best interest of the child.13 This is so, at least in part, because Murphy was decided in 1968, more than a decade before the Nevada Legislature amended NRS 125.480 and 125.510 to identify the "best interest of the child" as the primary concern in custody determinations. Accordingly, we take this opportunity to revisit the Murphy standard 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 child's best interest is served by the modification.14 Under this revised test, the party seeking a modification of custody bears the burden of satisfying both prongs.15
In reaching our conclusion, we overrule Murphy to the extent that it required a change in "the circumstances of the parents" alone, without regard to a change in the circumstances of the child or the family unit as a whole. We note, however, that under the revised test, there must still be a finding of a substantial change in circumstances. While the Murphy test is too restrictive because it improperly focuses on the circumstances of the parents and not the child, custodial stability is still of significant concern when considering a child's best interest. The "changed circumstances" prong of the revised test serves the important purpose of guaranteeing stability unless circumstances have changed to such an extent that a modification is appropriate. In...
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