Garver v. Garver

• Decision Date: 27 May 2022
• Docket Number: 82471-COA
• Citation: Garver v. Garver, 510 P.3d 815(Table) (Nev. App. 2022)
• Parties: Kory GARVER, Appellant, v. Crystal GARVER, n/k/a Crystal Coleman Respondent.
• Court: Nevada Court of Appeals

510 P.3d 815 (Table)

Kory GARVER, Appellant,

v.Crystal GARVER, n/k/a Crystal Coleman Respondent.

No. 82471-COA

Court of Appeals of Nevada.

FILED MAY 27, 2022

JK Nelson Law LLC

O'Mara Law Firm, P.C.

Barbara Buckley, Las Vegas

Kelly H. Dove, Las Vegas

ORDER OF AFFIRMANCE

Kory Garver and Crystal Coleman married in Reno in 2017.¹ Each party came into the union with children, and they had one additional child together, K.G., during their second year of marriage.

In November 2019, police responded to a domestic disturbance at the marital residence. That day, Crystal and Kory argued, Kory grabbed a knife and threatened to puncture Crystal's car tires, and Kory intentionally threw a pipe that broke Crystal's glass fish tank. A physical altercation then ensued involving Kory, Crystal's adult son Tye Clemmons, and Tye's friends. Afterward, Kory was charged with battery with the use of a deadly weapon and battery by strangulation for allegedly throwing a hockey stick at one of Tye's friends, knocking him to the ground and choking him. This incident resulted in the end of Kory and Crystal's relationship and led to Kory moving out. In January 2020, there was another incident at the marital home, whereupon Kory was charged with domestic battery against Tye for allegedly striking him. Crystal fled from Nevada to Oregon with K.G. a few days after that second incident.

Kory then filed pro se for divorce requesting sole legal and physical custody of K.G. Kory did not select parenting time, holiday, or summer schedules in the form complaint, but instead asked for K.G. to stay with him "until Both parents can come to an agreement." Crystal filed pro se a form answer and counterclaim to Kory's complaint for divorce asking for sole legal and primary physical custody. She further asked that parenting time "be determined by [her]" because of Kory's pattern of harassment and threatening behavior. Crystal asked for all holidays and summers until she felt safe around Kory. Soon after, the district court awarded Crystal temporary sole legal and physical custody and ordered virtual parenting time with Kory twice weekly.

After continuing the divorce proceedings several times for resolution of Kory's pending criminal charges, the court set the matter for a November 2020 trial. At the trial conducted via Zoom, the district court heard testimony from Kory, Crystal, Tye, and Crystal's teenage son, L.E. The court then made oral findings as to each enumerated NRS 125C.0035(4) factor and determined that Crystal should have sole legal and primary physical custody. The court attempted to order parenting time but wanted the parents’ assistance because they lived in different states, Kory was jobless and geographically isolated, and Crystal did not want to continue Zoom parenting time due to Kory's harassing behavior toward her—such as threatening to kill her and making derogatory comments about her to their son—during video calls. Kory however disparaged the court and refused to communicate about parenting time. Unable to proceed without Kory's input, the court ordered that he have "no contact with the child until he comes back to court and describes to me calmly what he would like to have." The district court provided notice and held a remote hearing at the end of November 2020 to set Kory's parenting time, which he did not attend.

The district court then issued its divorce decree, making specific best interest findings as to each NRS 125C.0035(4) factor, including that factor (4)(h) (relationship with each parent) favored Crystal because K.G. was more bonded to Crystal than Kory. The court also found under factor (4)(k) (domestic violence) that Kory perpetrated domestic violence against Crystal and Tye by clear and convincing evidence. The court then applied the presumption against domestic violence perpetrators having custody, found that Kory did not rebut the presumption, and concluded that it was appropriate for Crystal to have sole legal and sole physical custody of K.G. The decree did not order parenting time but invited Kory to file a motion with the court to seek a parenting time schedule.² The court found that these custody and parenting time arrangements adequately protected the child, the parent, and any other victim of domestic violence as required by NRS 125C.0035(5). It does not appear that Kory filed a motion to seek custody after the district court served him with its decree. Instead, he now raises multiple issues on appeal, each of which we address in turn.

The district court did not abuse its discretion by awarding Crystal sole legal custody of K.G.

Kory argues that the district court abused its discretion by awarding Crystal sole legal custody because there is a joint legal custody presumption. According to Kory, the court only found that the parents could not "cooperate enough to share legal custody," which he asserts is not substantial evidence necessary to overcome that presumption. Kory claims "no evidence" suggests his involvement in legal custody decisions would be against K.G.’s best interest.³

Crystal answers that joint legal custody requires that the parents be able to cooperate, communicate, and compromise in the child's best interest, and that we should defer to the district court's credibility, character, temperament, and sincerity determinations of the parents. Therefore, given the court's findings of high conflict, no ability to cooperate, and that Kory perpetrated domestic violence without rebutting the presumption against joint custody, Crystal argued that the district court correctly awarded her sole legal custody of K.G. Kory replies that both parents are responsible for the high level of conflict.⁴

"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." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). And rulings supported by substantial evidence—evidence "which a sensible person may accept as adequate to sustain a judgment"—will not be disturbed on appeal. Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004).

"Sole legal custody vests this right with one parent, while joint legal custody vests this right with both parents." Rivero, 125 Nev. at 420, 216 P.3d at 221. There is a statutory presumption that joint legal custody would be in the best interest of the child when a parent demonstrates "an intent to establish a meaningful relationship with the minor child." NRS 125C.002(1)(b). However, that presumption is defeated if the parents cannot "cooperate, communicate, and compromise to act in the best interest of the child."See Rivero, 125 Nev. at 420, 216 P.3d at 221.

Contrary to what Kory asserts, the district court did not base its legal custody determination solely on its finding that the "parents can't cooperate enough to share legal custody." In analyzing the NRS 1250.0035(4) custody best interest factors, the court specifically found that the parents showed "no ability to cooperate," "an extremely high level of conflict," and that Kory perpetrated domestic violence against Crystal and Tye. See Monahan v . Hogan, 138 Nev., Adv. Op. 7, 507 P.3d 588, 596 (Ct. App. 2022) (concluding that the district court's failure to restate actual advantage findings under the best interests relocation provision when they overlap each other was not fatal to the best interests determination under the relocation statute). Therefore, the district court made several findings which support its conclusion that Crystal should have sole legal custody.

Also contrary to Kory's position, these findings alone need not be substantial evidence to rebut the presumption in favor of joint legal custody. Rather, we consider all evidence before the district court to determine whether "substantial evidence in the record" supports the custody decision. See Devries v. Gallio, 128 Nev. 706, 711, 290 P.3d 260, 264 (2012) ; Rico v. Rodriguez, 121 Nev. 695, 702, 120 P.3d 812, 817 (2005).

We conclude that substantial evidence supports the district court's decision. At trial, Kory called Crystal "a narcissist," said her actions were "selfish, heartless, malicious," and stated that "she should be in prison for [what] she's done. How careless." He testified that he had "a whole lot of conflict against [Crystal]," and that he "shouldn't have to be civil with her." Crystal testified that Kory "cannot have a decent, normal conversation with me; he hates me too much." She further testified that Kory refused to attend coparenting counseling, he threatened to kill her during their last Zoom visit, and she sees the "next 16 years of my life being complete misery and just chaos and torment and harassment and stalking and threatening." The court noted that it observed Kory was unable to control his anger in court "several times."⁵ Neither party provided evidence of the parents getting along for any appreciable amount of time since their separation. Therefore, substantial evidence indicated the parents could not cooperate, communicate, and compromise in K.G.’s best interest and that Crystal overcame the joint legal custody presumption. Thus, the district court did not abuse its discretion by awarding Crystal sole legal custody.

The district court did not abuse its discretion by awarding Crystal sole physical custody of K.G.

Kory argues that the district court abused its discretion by awarding Crystal sole physical custody of K.G. because there is a joint physical custody preference. Kory argues that, based on the totality of the circumstances, substantial evidence did not support the court's conclusion that awarding Crystal sole physical custody was in K.G.’s best interest because the court should have found some of the factors favored him.

Crystal answers that there is a rebuttable presumption against joint physical custody when a parent has perpetrated domestic violence against the...