McMonigle v. McMonigle

• Decision Date: 22 December 1994
• Docket Number: No. 25296,25296
• Citation: 887 P.2d 742,110 Nev. 1407
• Parties: Susan L. McMONIGLE, Appellant, v. Robert M. McMONIGLE, Respondent.
• Court: Nevada Supreme Court

Page 742

887 P.2d 742

110 Nev. 1407

Susan L. McMONIGLE, Appellant, v. Robert M. McMONIGLE, Respondent.

No. 25296.

Supreme Court of Nevada.

Dec. 22, 1994.

Marshal S. Willick, Las Vegas, for appellant.

Woodburn & Wedge and James W. Erbeck, Las Vegas, for respondent.

OPINION

PER CURIAM:

On March 2, 1992, appellant Susan Grandgeorge (Susan), then Susan McMonigle, and respondent Robert McMonigle (Robert) were divorced. The district court ordered primary custody of their one child, Mari, to Susan.

On March 17, 1993, Robert filed a motion to modify custody. The same day an ex parte restraining order gave him custody of Mari pending a hearing. On March 23, 1993, an initial hearing left the restraining order unchanged. In June, 1993, the district court gave Robert temporary custody. After a seven-day hearing which stretched from September 7 to October 6, 1993, the court awarded Robert permanent custody of Mari. Susan appealed.

We now reverse the order changing custody because the district judge improperly based her decision in large part on irrelevant evidence.

Once primary custody has been established, a court can consider changing custody only if "(1) the circumstances of the parents have been materially altered; and (2) the child's welfare would be substantially enhanced by the change." Murphy v. Murphy, 84 Nev. 710, 711, 447 P.2d 664, 665 (1968). "The moving party in a custody proceeding must show that circumstances ... have substantially changed since the most recent custodial order.... Events that took place before that proceeding [are] inadmissible to establish a change of circumstances." Stevens v. Stevens, 107 Or.App. 137, 810 P.2d 1334, 1336 (1991) (citations omitted).

The district court set forth the Murphy standard in its final order, but did not explicitly specify the circumstances it found altered. However, it is clear that some of the circumstances it considered were not appropriate under Murphy.

During the long evidentiary hearing in this case, the district court received extensive testimony and numerous exhibits relating to the period before March 2, 1992, the date of the divorce judgment and thus the last custody order prior to Robert's motion to modify custody. The court apparently realized this evidence was not relevant and stated in its final order that it had not addressed matters prior to the last custody order. Nevertheless, it expressly based its decision in large part on some of this evidence.

First, and most important, the district court improperly considered Susan's move to Kansas City and continued residence there. The court stated in its order that "any activities with respect to [Susan] which occurred prior to [her] move to Kansas City were disregarded." Thus, the court considered the move itself to be within its purview. However, Susan moved to Kansas City in November, 1991, before the final divorce judgment. In fact, that judgment noted that she had already moved and therefore ordered her to share Robert's travel expenses for visitation. Accordingly, consideration of Susan's relocation was improper under Murphy.

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