Harrison v. Harrison

• Decision Date: 28 July 2016
• Docket Number: No. 66157.,66157.
• Citation: 376 P.3d 173,132 Nev. Adv. Op. 56
• Parties: Kirk Ross HARRISON, Appellant, v. Vivian Marie Lee HARRISON, Respondent.
• Court: Nevada Supreme Court

376 P.3d 173

132 Nev. Adv. Op. 56

Kirk Ross HARRISON, Appellant

v.Vivian Marie Lee HARRISON, Respondent.

No. 66157.

Supreme Court of Nevada.

July 28, 2016.

Kirk Ross Harrison, Boulder City; Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno, for Appellant.

Radford J. Smith, Chtd., and Radford J. Smith, Henderson; Silverman, Decaria & Kattelman, Chtd., and Gary R. Silverman and Mary Anne Decaria, Reno, for Respondent.

Before the Court En Banc.

OPINION

By the Court, DOUGLAS, J.:

This appeal raises two issues of first impression concerning the balance between contractual obligations and public policy concerns.The parties to this appeal share joint legal and physical custody of their two minor children as stated in a stipulated order.One provision of the parties' agreement provides that when a child reaches the age of 14, it is within the child's “teenage discretion” to determine time spent with either parent, so long as the joint physical custody agreement remains intact.A second provision provides for a “parenting coordinator” to resolve disputes and authorizes the district court to issue an order defining the coordinator's role.Appellant argues that both contractual provisions should be invalidated because they are against public policy.We conclude that neither provision violates the paramount public policy concern in child custody matters—the best interest of the child, nor does the parenting coordinator provision improperly delegate decision-making authority.Therefore, we affirm.

BACKGROUND

AppellantKirk Harrison filed for divorce from respondentVivian Harrison in 2011.After extensive proceedings and settlement negotiations in the district court, Kirk and Vivian entered into a written stipulation as to the custody arrangement for their two minor children, which was adopted by the district court.The district court's stipulated order granted Vivian and Kirk joint legal and physical custody of their two minor children.One provision of the order provides for “teenage discretion” in determining time spent with either parent when a child reaches the age of 14.Another provision confers authority to resolve disputes to a “parenting coordinator” and consents to allow the district court to issue an order that defines the coordinator's role if the parties do not agree.

After the district court entered the stipulated order, conflict regarding its interpretation arose.Vivian argued that the teenage discretion provision allowed the children to make a request to spend time with either parent that the parents must honor.Kirk argued that the provision merely empowered the children to make a request that he or Vivian could deny.

The teenage discretion provision's meaning became important when the Harrisons' oldest daughter reached the age of 14.She then informed Kirk that she planned to exercise her discretion and live with Vivian full-time.According to Kirk, he was deprived of seeing his 14–year–old daughter for two weeks based on Vivian's misinterpretation of the teenage discretion provision.Kirk filed a motion for judicial determination of the teenage discretion provision, but the district court denied Kirk's motion.

Amid the conflict over the teenage discretion provision, Kirk and Vivian never identified a parenting coordinator.Vivian filed a motion for an order appointing a parenting coordinator, wherein she included a proposed order.Kirk opposed the motion, arguing that Vivian's proposed order granted the parenting coordinator too much authority without due process.

Ultimately, the district court issued an order appointing a parenting coordinator and ruling that the purpose of the parenting coordinator was “to resolve disputes,” not merely to provide mediation services.The district court's order also provided that the parenting coordinator's authority was limited to making nonsubstantive recommendations regarding ancillary matters, such as scheduling, and that the recommendations were not final and not immediately effective.Thus, if either party objected to the parenting coordinator's recommendation, the order provided a procedure to seek review by the court.

After the district court issued the order appointing a parenting coordinator, Kirk filed a motion to modify the original stipulated child custody order.He argued that the teenage discretion provision should be rendered void as against public policy, or in the alternative, construed as merely empowering the Harrisons' 14–year–old daughter to make a request that could be denied.He further argued that the parenting coordinator provision should be rendered void because it was not the result of a meeting of the minds.

At the subsequent hearing, the district court explained that an interpretation that merely empowered the children to make a request rendered the provision meaningless, but that the provision was not an instrument whereby the joint custody arrangement could be altered.In addition, the district court noted that the parties had agreed to the parenting coordinator provision and concluded that there was no basis to modify it.The district court denied Kirk's motion in its written decision.Kirk now appeals.

DISCUSSION

We have held that “[p]arties are free to contract, and the courts will enforce their contracts if they are not unconscionable, illegal, or in violation of public policy.”Rivero v. Rivero,125 Nev. 410, 429, 216 P.3d 213, 226(2009).We also recognize broad discretionary powers for district courts when deciding child custody matters.Ellis v. Carucci,123 Nev. 145, 149, 161 P.3d 239, 241(2007).Absent a clear abuse of discretion, we will not disturb a district court's custody determinations.Id.Thus, the stipulated order in this case must only yield to violations of public policy.SeeMiller v. A & R Joint Venture,97 Nev. 580, 582, 636 P.2d 277, 278(1981)(discussing public policy as a limitation on the enforceability of a contract).

Teenage discretion provision

Kirk argues that this court should modify the stipulated order by invalidating the teenage discretion provision because it is against public policy.Alternatively, Kirk requests that this court construe the provision to provide teenage discretion to make a schedule change request that the parents can deny.¹

The teenage discretion provision states:

6.Notwithstanding the foregoing time-share arrangement, the parents agreed that, once each child reaches the age of fourteen (14) years, such child shall have “teenage discretion” with respect to the time the child desires to spend with each parent.Thus, while the parents acknowledge the foregoing time-share arrangement, the parents further acknowledge and agree that it is in the best interest of each of their minor children to allow each child the right to exercise such “teenage discretion” in determining the time the child desires to spend with each parent once that child reaches 14 years of age.

6.1.The parties do not intend by this section to give the children the absolute ability to determine their custodial schedule with the other parent.Rather, the parties intend to allow the children to feel comfortable in requesting and/or making adjustments to their weekly schedule, from time to time, to spend additional time with either parent or at either parent's home.

Modification by invalidation

In any action for determining physical custody of a minor child, “the sole consideration of the court is the best interest of the child.”NRS 125.480(1)(2009);seeEllis,123 Nev. at 149, 161 P.3d at 242.If the parents agree to joint physical custody, there is a presumption “that joint custody would be in the best interest of a minor child.”SeeNRS 125.490(1)(1981).²The Harrisons agreed that joint physical custody was in the best interests of their children.Thus, our particular policy concern is preserving the agreed-upon joint physical custody arrangement.

The teenage discretion provision does not violate the joint physical custody arrangement.The agreement permits the children to adjust “their weekly schedule, from time to time.”But that flexibility is necessarily limited.Section 6.1 provides: “The parties do not intend ... to give the children the absolute ability to determine their custodial schedule with the other parent.”Thus, section 6.1 reinforces that child-initiated schedule changes may not take so much liberty that they violate the joint custody arrangement set forth by the district court.And if the custody arrangement is in jeopardy, then the Harrisons may seek resolution through the agreed-upon parenting coordinator, followed by review from the district court.Therefore, rather than detracting from the district court's authority, as the dissent claims, the terms of the agreement reinforce that the district court will have the ultimate say over matters that concern it.Hence, the dissent's claim of judicial intrusion fails to acknowledge the clear black letter of the agreement providing only limited discretion to adjust weekly schedules without modifying the joint physical custody arrangement.The limited discretion is the key factor for maintaining joint custody.

We conclude that the Harrisons have the right to confer that discretion on their teenage children.³Parents have a fundamental liberty interest in the care, custody, and control of their children, although that right is not absolute.Kirkpatrick v. Eighth Judicial Dist. Court,119 Nev. 66, 71, 64 P.3d 1056, 1059(2003).States may limit parental authority, but those limitations are generally only necessary where the opposing interest is the fundamental right of a child, seeid.(balancing a parent's interest in consenting to a child's marriage against the child's constitutional right to marry), or the safety of a child, seeNRS Chapter 432B(providing for the protection of children from abuse and neglect).It is not the judiciary's role to limit parental authority where similarly severe concerns are not at stake.Parham v. J. R.,442 U.S. 584, 603, 99...