Mizrachi v. Mizrachi

• Decision Date: 15 September 2016
• Docket Number: No. 66176,66176
• Citation: 385 P.3d 982,132 Nev. Adv. Op. 66
• Parties: Eliezer MIZRACHI, Appellant, v. Diane MIZRACHI, Respondent.
• Court: Nevada Court of Appeals

385 P.3d 982

132 Nev. Adv. Op. 66

Eliezer MIZRACHI, Appellant,

v.Diane MIZRACHI, Respondent.

No. 66176

Court of Appeals of Nevada.

FILED SEPTEMBER 15, 2016

Jacobson Law Office, Ltd., and Rachel M. Jacobson, Las Vegas, for Appellant.

Diane Mizrachi, North Las Vegas, in Pro Se.

BEFORE GIBBONS, C.J., TAO and SILVER, JJ.

OPINION

By the Court, GIBBONS, C.J.:

In family law cases, parents are encouraged to work together to reach agreements to allow them to maintain control over how they will exercise custody of their children. See Bluestein v. Bluestein, 131 Nev. ––––, ––––, 345 P.3d 1044, 1047 (2015) ("Public policy encourages parents to enter into private custody agreements for co-parenting."). And when they do, the resulting agreements are generally enforceable, as long as "they are not unconscionable, illegal, or in violation of public policy." Rivero v. Rivero, 125 Nev. 410, 429, 216 P.3d 213, 227 (2009). But even when parents come to an agreement, disputes may later arise as to what the parties meant by a term in the agreement, or whether the agreement is working as the parties intended. Thus, when the agreement is incorporated into a judgment, order, or decree, there are mechanisms in place for parents to return to court to resolve such disputes.

In this appeal, we discuss one such dispute and the proper method for resolving that dispute. In particular, we consider whether a motion filed in the district court was a motion to modify an agreement-based decree, or rather, was a motion to clarify, interpret, or construe the decree. And we conclude that, in the underlying action, the district court clarified, rather than modified, the parties' divorce decree, as that court defined the rights assigned to the parties by the decree. While it was proper for the court to clarify the decree, our review of the record demonstrates that the district court did not apply the proper procedure in doing so, as the court failed to take evidence or otherwise consider the intent of the parties in reaching the agreement that led to the decree. Thus, we reverse the district court's decision and remand this matter to the district court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Based on the parties' unwritten, out-of-court stipulation, the district court entered a divorce decree drafted by respondent Diane Mizrachi's attorney.² As relevant to this appeal, the decree grants the parties joint legal and physical custody and provides that appellant Eliezer Mizrachi (Eli) "will have the minor child for the Jewish holidays every year" and Diane "will have the minor child on the Christian holidays every year." The decree does not identify specific days or times or otherwise define what is meant by "the Jewish holidays" or "the Christian holidays."

Less than ten months after the court entered the divorce decree, Diane filed a motion to clarify the decree as to the holiday parenting time schedule, asserting that disputes had arisen between the parties with regard to Eli's holiday parenting time.³ In particular, Diane asserted that Eli was requesting parenting time with the child for the full period of 12 Jewish holidays,⁴ whereas she believed the divorce decree only allowed him to have holiday parenting time on the first day of Hanukkah, Passover, Rosh Hashanah, and Yom Kippur. In support of her position, Diane alleged that, during their 13–year marriage, Eli rarely observed any of the Jewish holidays. She also noted that, if the provision was interpreted as Eli suggested, there would be potential conflicts with her parenting time on the Christian holidays, as the days of the Jewish and Christian holidays sometimes overlap.

In the motion, Diane asserted that each department of the Family Division of the Eighth Judicial District Court used a default schedule, which identified only Hanukkah, Passover, Rosh Hashanah, and Yom Kippur as the relevant Jewish holidays for setting a custody schedule. And she argued that the parties' divorce decree should be interpreted consistently with the default schedule.⁵ Eli opposed the motion, contending that the decree's reference to "the Jewish holidays" included all 12 of the holidays that he sought, which extended for the full holiday time frame. Moreover, Eli contended that Diane had agreed to give him these holidays in exchange for him giving up certain other rights in the divorce decree. Diane filed a reply, asserting that Eli gave up the other rights for reasons unrelated to his holiday parenting time.

The district court subsequently held a hearing on the motion, but did not hear testimony or take other evidence. Instead, the district court, relying solely on the parties' verified pleadings, arguments of counsel, and its own independent Internet research, found that "there [was not] a clear understanding between the two parties at the time [of the agreement] and there needs to be a clarification on the Jewish holidays." To that end, the court granted Diane's request to clarify the meaning of the term "the Jewish holidays" as used in the divorce decree. In so doing, the court adopted Department D's religious holiday default schedule, concluding that Eli would have holiday parenting time only on the first day of Hanukkah, Passover, Rosh Hashanah, and Yom Kippur. This appeal followed.

ANALYSIS

Parties in family law matters are free to contract regarding child custody and such agreements are generally "enforceable if they are not unconscionable, illegal, or in violation of public policy." Rivero, 125 Nev. at 429, 216 P.3d at 227. Indeed, even beyond the idea that parents are free to enter into such agreements, the Nevada Supreme Court has gone further and explained that public policy favors parenting agreements.⁶ See Bluestein, 131 Nev. at ––––, 345 P.3d at 1047 ; see also St. Mary v. Damon, 129 Nev. ––––, ––––, 309 P.3d 1027, 1035–36 (2013) (recognizing a presumption "that fit parents act in the best interest of their children" and that public policy favors those parents entering into custody agreements). Thus, parents are encouraged to reach such agreements, and the court "will generally recognize the preclusive effect of such agreements if they are deemed final." See Rennels v. Rennels, 127 Nev. 564, 569, 257 P.3d 396, 399 (2011). Moreover, when parties enter into a parenting agreement, the terms of that agreement will control unless and until a party moves to modify those terms.⁷ Rivero, 125 Nev. at 429, 216 P.3d at 226 ; see also Harrison v. Harrison , 132 Nev. ––––, ––––, 376 P.3d 173, –––– (2016) (explaining that the appellate court will not rewrite a contract to include terms not agreed to by the parties).

While we reiterate that parenting agreements are valuable and enforceable, see Rivero, 125 Nev. at 429, 216 P.3d at 227, we also recognize that, despite the parties' best efforts in reaching such agreements, disputes will sometimes arise once the parties begin putting their agreed-upon terms into practice. Such is the situation here, where the parties discovered, after having agreed that Eli would have parenting time on the Jewish holidays, that they disagreed as to what that term actually meant.

That disagreement has led to this appeal, in which Eli argues that the district court erred by finding the holiday provision to be ambiguous when the term could only be reasonably interpreted to mean the 12 Jewish holidays for their full time span. He also contends that, to the extent there was any ambiguity, the district court improperly failed to consider the intent of the parties and to construe such ambiguity against Diane, whose attorney drafted the decree. Finally, although Eli asserts that the motion was presented and decided only as a motion for clarification, he also argues that, by interpreting the term in the manner that it did, the district court essentially modified the divorce decree without considering whether the modification was in the child's best interest.⁸ Diane agrees that the term was unambiguous, but argues that the district court properly clarified the meaning of the term to include only the first day of the four specified holidays.

As a preliminary matter, Eli's argument regarding effective modification raises the question of whether the district court actually modified or only clarified the holiday parenting time provision in the divorce decree. Thus, we begin our analysis by briefly addressing that question before turning to the merits of the court's conclusion as to the meaning of the term, "the Jewish holidays."

Clarification versus modification

The Nevada Supreme Court has long distinguished between an order modifying a judgment or decree and an order construing or clarifying a judgment or decree. See Murphy v. Murphy, 64 Nev. 440, 445, 183 P.2d 632, 634 (1947) (concluding that the district court's order defining the effect of a divorce decree but not changing that decree construed, rather than modified, the decree). This distinction is important in many cases because modification of a judgment may not be permitted, absent special circumstances, once the judgment has become final and the time for seeking relief from the judgment has passed. See NRCP 60(b) (generally limiting the time for filing certain motions for relief from a judgment to six months); Kramer v. Kramer, 96 Nev. 759, 762–63, 616 P.2d 395, 397–98 (1980) (concluding that a district court lacked jurisdiction to modify a divorce decree's property distribution provisions more than six months after the decree was entered).

Of course, custody cases are somewhat different because, on a proper showing, a custody decision may be modified at any time. See NRS 125C.0045(1)(b) (providing that the court may modify its custody order at any time). Nevertheless, the distinction between modification and clarification is still important in custody cases because certain specific standards must be met in order for a court to properly modify a custody order. See, e.g., Rivero, 125 Nev. at 430, 216 P.3d...