Melinkoff v. Sanchez-Losada
| Decision Date | 26 February 2018 |
| Docket Number | No. 71380,71380 |
| Parties | SINETH MELINKOFF, Appellant, v. JOHNNY SANCHEZ-LOSADA, Respondent. |
| Court | Nevada Court of Appeals |
Sineth Melinkoff appeals from a district court order modifying the physical custody arrangement of her minor child and denying her motion for relocation. Eighth Judicial District Court, Family Court Division, Clark County; Cheryl B. Moss, Judge.
Sineth was married to Johnny Sanchez-Losada.1 The couple has one son, age 8, and Sineth has a daughter from a previous marriage, age 11.2 Sineth and Johnny's marriage ended by a stipulated decree of divorce. In that decree, Sineth and Johnny agreed to joint legal and joint physical custody of their son, and no rights were requested by or awarded to Johnny regarding Sineth's older daughter.
A few months after the district court entered the divorce decree, Sineth filed a motion for primary physical custody of their son for the purposes of relocating with him out-of-state and for permission to relocate to Florida with their son, among other things. Johnny opposed this motion. Before the district court decided her motion, Sineth moved to Florida leaving their son in Nevada with Johnny.
After an extended evidentiary hearing on the motions, the district court denied Sineth's motions for primary physical custody of their son and permission to relocate with him. Further, the district court awarded primary physical custody of their son to Johnny. Sineth appeals the district court's order denying her motions and awarding primary physical custody to Johnny.
Sineth argues the district court abused its discretion by finding that their son would not benefit from any "actual advantage" by relocating to Florida.3 This court reviews a district court's decision regarding relocation for an abuse of discretion. Flynn v. Flynn, 120 Nev. 436, 444, 92 P.3d 1224, 1229 (2004). "We will uphold the district court's determination if it is supported by substantial evidence." Id. at 440, 92 P.3d at 1227 (internal citation and quotation marks omitted). "Substantial evidence 'is evidence that a reasonable person may accept as adequate to sustain a judgment.'" Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009) (quoting Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007)).
Sineth does not argue the district court's determination that their son would not benefit from any actual advantage by relocating to Florida is not supported by substantial evidence; instead, she points to a number of benefits she enjoys due to her relocation and suggests that their son would enjoy those benefits as well if he was with her. Thus, Sineth doesnot demonstrate that the district court abused its discretion by finding their son would not benefit from any actual advantage by relocation as the statute requires the relocating parent to demonstrate both the child and the parent will benefit by an actual advantage. Therefore, we conclude the district court did not abuse its discretion in making this finding.
Sineth also argues the district court abused its discretion in making its best interest determination. In light of our decision regarding the actual advantage factor, we need not consider whether the court erred in its best interest determination as NRS 125C.007(1) requires the relocating parent to meet all threshold factors. Accordingly, we
ORDER the judgment of the district court AFFIRMED.4
/s/_________, C.J.
Silver
I join fully in the principal order but add a few words regarding the limited scope of our appellate review in a case like this.
In the words of a fictional television police detective, "all the pieces matter." (Detective Lester Freamon, The Wire, HBO 2001). Below, the district court made thirteen separate factual findings: it made a separate factual finding corresponding to each of the twelve individual "best interest" factors set forth in NRS 125C.0035, plus it made the thirteenthfinding that the "best interests of the child" ultimately balanced out against Sineth. Cf. Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1227 (2004) ().
On appeal, Sineth, along with my colleague in dissent, have nothing to say about twelve of those findings. But they argue that the whole thing must be reversed anyway because the district court erred with respect to one of the thirteen, namely, 125C.0035(4)(i) relating to the ability of the child to maintain relationships with siblings. To me, that's not how review for "abuse of discretion" works. We have to look at all of the findings as a whole, and I don't agree that an "abuse of discretion" occurs simply because we might have weighed one factor differently than the district court did, unless that factor is somehow more important than everything else in the case that the district court got right.
Let's put this in terms an economist might use, or that Detective Freamon's TV nemesis Stringer Bell might have learned in economics class. If we look at this case the way the dissent does, by focusing only on one factor all by itself, in isolation from everything else in the case, then our decision is a "binary option" producing an all-or-nothing outcome: if the district court got that one factor right, then it got everything right; but if it got that one factor wrong, then it got everything wrong.
But the district court didn't base its decision on only one factor; it correctly considered all twelve factors outlined in the statute, and then found that the best interests of the child weighed against Sineth's argument. If we look at all twelve factors together, what we have insteadis an analysis of "marginal benefit": right or wrong, how much did that one factor either add to, or detract from, the balance of all of the other factors taken together as a whole that the dissent acknowledges the district court got right? If wrong, would that one factor alone have been enough to render the whole thing an "abuse of discretion"?
Of these two approaches, it seems to me that the latter, not the former, is the more consistent with existing jurisprudence. One thing unresolved about NRS 125C.0035, and other "best interests of the child" statutes like it, which we've always left for district courts to decide is how much weight to give each individual factor. The statute itself doesn't say; it requires only that each factor be "considered" without prioritizing how each must be weighed against the others. The Nevada Supreme Court has emphasized that no single factor necessarily possesses any intrinsically greater weight than the others, and it's never said that every factor must be given exactly equal mathematical weight. Quite to the contrary, it's repeatedly held that the district court possesses "broad discretionary powers" on how to weigh each factor in any particular case. See Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). Moreover, there's no requirement that the district court simply count up the factors and go with the majority: a district court is free to find a majority of the factors to weigh toward one party, yet rule in favor of the other in the end, simply because it considered some factors more important than others under the facts at hand. See Davis, 131 Nev. at ___, 352 P.3d at 1143 (). The standard of proof for establishing any fact is by a "preponderance of the evidence." But there's nothing that says the district court's conclusions regarding the children's best interests must be driven by a "preponderanceof the findings." Here, the district court considered all of the statutory factors and decided that the best interests of the child lay with keeping one child with the father in Nevada and, whether we like it or not, its findings are entitled to significant deference. See Harrison v. Harrison, 132 Nev. ___, ___, 376 P.3d 173, 175 (2016) ().
So, in a case like this, the weight that the district court gave to any single factor might have been microscopically little, gigantically large, or none at all; how much weight to give it was the district court's call. But reversing based upon the district court's resolution of that factor and that factor alone assumes that the district court gave great weight to it. Indeed, it assumes the district court made it outweigh everything else in the case. But that's an assumption that the record doesn't support. Furthermore, it gives the last factor far more weight than all of the others combined when the statute says that we do nothing of the kind, and requires reversal based on that factor alone while ignoring how everything else came out.
The district court reviewed all twelve of the "best interest" factors delineated in NRS 125C.0035 and concluded that, with the exception of 125C.0035(4)(i) relating to the ability of the child to maintain relationships with siblings, all factors weighed equally (or did not apply). By doing so, the district court made clear that it considered this to be a near-run thing, something very close to a 50/50 decision that could have gone either way. To me, that means we must affirm when our standard of review is limited to reversal only for "abuse of discretion." If judicial discretion means anything, it means we must affirm the closest cases that fall within a few points of 50% one way or the other, for the simple reason that thecloser you get to the line, the more judges can reasonably disagree on precisely where the line ought to be drawn.
Individual factors aside, did the district court err when it ultimately found that, all things considered, the child's best interests were served by denying Sineth's motion to relocate? The dissent...
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