Mack-Manley v. Manley
| Decision Date | 20 July 2006 |
| Docket Number | No. 39160.,No. 42003.,39160.,42003. |
| Parties | Colleen MACK-MANLEY, Appellant, v. Edward T. MANLEY, Respondent. Colleen Mack, Appellant, v. Edward T. Manley, Respondent. |
| Court | Nevada Supreme Court |
James S. Kent, Henderson, for Appellant.
Kirby R. Wells & Associates and Kirby R. Wells, Las Vegas, for Respondent.
Before MAUPIN, GIBBONS and HARDESTY, JJ.
In these consolidated appeals, we decide whether a district court retains jurisdiction, after an appeal has been perfected, to entertain a motion to modify a child custody arrangement when the custody issue is before this court on appeal. As a properly filed notice of appeal vests jurisdiction in this court, the district court is divested of jurisdiction to consider any issues that are pending before this court on appeal. Consequently, when a custody issue is before this court on appeal, the proper procedure for parties to follow in returning jurisdiction to the district court to consider a post-decree motion to modify a child custody arrangement is for a remand under Huneycutt v. Huneycutt.1 Here, the district court erroneously concluded that it had retained jurisdiction over any child custody dispute between the parties, pending the resolution of the appeal. While it was improper for the district court to rule on respondent's post-decree motion to modify custody, since the court was inclined to grant respondent's motion to modify custody, and in the interest of judicial economy, we have considered the post-decree order and affirm it, including the contempt finding and the attorney fees award.
Appellant Colleen Mack-Manley and respondent Edward Terry Manley (Terry) were married in 1995 and have two minor children. During the parties' brief marriage, they experienced a number of domestic conflicts, and on one occasion, Terry pleaded guilty to a charge of battery on Colleen. Ultimately, the parties separated, and in 1999, Colleen filed a complaint for divorce. Pending the divorce decree's entry, the district court entered a temporary custody order under which the parties shared joint legal custody of the children, with Colleen having primary physical custody and Terry having visitation.
During the parties' separation before the divorce, Colleen denied Terry visitation several times and alleged that Terry abused or neglected the children on at least two occasions. The district court, the Las Vegas Metropolitan Police Department and Child Protective Services (CPS) could not substantiate Colleen's child abuse or neglect allegations.
In determining the permanent child custody arrangement, the district court heard testimony from twelve witnesses over a four-day period. Also, the court appointed a psychologist to conduct a child custody evaluation. Following the evaluation, the psychologist submitted a report to the district court, recommending that the court grant Terry sole legal and physical custody. The district court also considered Colleen's allegations of domestic violence by Terry against her. The court found that Colleen had proved by clear and convincing evidence that Terry had engaged in at least one act of domestic violence against her. The court concluded, however, that based on the totality of the evidence, Terry rebutted the presumption that joint custody was not in the children's best interests. Specifically, the court found that Terry did not have a history of domestic violence and that the children's best interests were not served by ignoring Colleen's unsubstantiated child abuse and neglect allegations. Additionally, under Colleen's care, documentation established that the eldest child had been absent from school on 25 occasions and late for classes 43 times.
Based on the evidence presented, and because Colleen had not made allegations of abuse and neglect by Terry since before the trial, the district court concluded that it was not in the children's best interests for either party to have sole legal custody. Thus, under the divorce decree, the district court awarded the parties joint legal custody, with Terry having primary physical custody subject to Colleen's liberal visitation. The divorce decree further admonished the parties that "[n]either party shall do anything which may estrange the children from the other parent or impair the natural development of the children's love and respect for the other parent." Colleen timely appealed from the divorce decree, and that appeal was docketed as No. 39160.
After the divorce decree was entered, and while the appeal was pending, Colleen took one of the children to the emergency room because of a bruised knee, and she advanced allegations of abuse and neglect by Terry. CPS was contacted, and the allegations were the subject of a juvenile proceeding. The children were taken away from Terry for two days. Ultimately, after the allegations were investigated, the case was dismissed without a finding of abuse.
Thereafter, Terry moved the district court to hold Colleen in contempt for noncompliance with the decree's custody arrangement. Terry also moved the court for sole legal and physical custody of the children and to restrict Colleen's visitation, on the basis that Colleen continued to advance false child abuse and neglect allegations. Terry asked the district court to prevent Colleen from any further contact with the police or CPS regarding the children. Colleen opposed Terry's motion and filed a countermotion for custody. Both parties requested attorney fees.
During the period between entry of the divorce decree and the filing of Terry's motion for contempt and to modify the custody arrangement, Colleen hired a private investigator, Kristine Stephens, who interviewed, photographed, and videotaped the children over the 14-month period. Also, after Terry filed his motion for contempt and to change custody, Colleen reported yet another allegation of abuse against Terry, which was the subject of a hearing before a juvenile master. The master returned the children to Terry and deferred to the district court's pending custody proceedings.
Subsequently, a hearing was conducted in the district court on Terry's motion and Colleen's countermotion. The district court refused to enter an order that prohibited Colleen from going to the police or CPS but stated that Colleen could do so "at her own peril." The court further concluded that the issues raised by Terry merited a full evidentiary hearing. At the evidentiary hearing, the court heard testimony from ten witnesses and determined that Colleen, in bad faith, had advanced child abuse allegations a number of times following the parties' divorce in violation of the "anti-alienation" provision in the divorce decree. Based on that testimony, the court held Colleen in contempt and sentenced her to three days incarceration, but stayed the sentence and invited her to move to expunge her contempt after a period of compliance with the child custody orders. Additionally, the district court found that Colleen violated EDCR 5.12 by having the private investigator interview the children. The district court granted Terry's motion for sole legal and physical custody and awarded him attorney fees. Colleen appeals from the post-decree order; this appeal has been docketed as No. 42003.
During the pendency of Colleen's appeal from the divorce decree, the district court entered a post-decree order modifying the custody arrangement. Under NRS 125.510(1)(b), the district court may "[a]t any time modify or vacate its order" regarding a minor child's custody. This court has not addressed whether this statute confers continuous jurisdiction on the district court even when an appeal is pending.
This court has consistently explained that "a timely notice of appeal divests the district court of jurisdiction to act and vests jurisdiction in this court"2 and that the point at which jurisdiction is transferred from the district court to this court must be clearly defined.3 Although, when an appeal is perfected, the district court is divested of jurisdiction to revisit issues that are pending before this court, the district court retains jurisdiction to enter orders on matters that are collateral to and independent from the appealed order, i.e., matters that in no way affect the appeal's merits.4
Applying these basic jurisdiction premises to the child custody context, the district court has no authority to rule on a post-judgment motion to modify a child custody arrangement while an appeal is pending and the custody issue is squarely before this court. Consequently, even though NRS 125.510(1)(b) purportedly authorizes the district court to change a child custody arrangement "at any time," the district court may only modify child custody when it has jurisdiction to do so — i.e., when no perfected appeal pertaining to the child custody arrangement is pending.
The proper procedure to be followed when a party seeks to change a child custody order during an appeal challenging the child custody arrangement is a remand under Huneycutt v. Huneycutt.5 Under the Huneycutt procedure, a district court may hear a motion, in the first instance, to modify custody while an appeal is pending. If the district court is inclined to grant the motion, then it may certify its inclination to this court. At that point, the moving party would file a motion in this court for remand to the district court. This court could then, in its discretion, remand the matter to the district court for a determination on the motion to modify custody. If the only issue on appeal concerned child custody and this court granted the motion for remand, then the appeal would be dismissed. If, however, the appeal raised additional issues other than child custody, this court could order a limited remand and direct the district court to enter an order resolving the motion to modify within a specific time period and to...
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