Monahan v. Hogan

• Decision Date: 24 February 2022
• Docket Number: 82031-COA
• Citation: Monahan v. Hogan, 507 P.3d 588 (Nev. App. 2022)
• Parties: Anthony Jacob MONAHAN, Appellant, v. Amanda Kaitlyn HOGAN, Respondent.
• Court: Nevada Court of Appeals

507 P.3d 588

Anthony Jacob MONAHAN, Appellant,

v.Amanda Kaitlyn HOGAN, Respondent.

No. 82031-COA

Court of Appeals of Nevada.

FILED FEBRUARY 24, 2022

The Law Firm of Laub & Laub and Joe M. Laub and Nicholus C. Palmer, Reno, for Appellant.

Carucci & Associates and Roderic A. Carucci, Reno, for Respondent.

BEFORE THE COURT OF APPEALS, GIBBONS, C.J., TAO and BULLA, JJ.

OPINION

By the Court, GIBBONS, C.J.:

This opinion considers how to interpret NRS 125C.007(1)(b) —the best interests provision of Nevada's child relocation statute.¹Relocation of children following the dissolution of the parents’ relationship is one of the most difficult issues a court must resolve.On the one hand, courts strive to preserve the nonrelocating parent's rights and relationship with the child.See Schwartz v .Schwartz , 107 Nev. 378, 382, 812 P.2d 1268, 1270(1991).On the other hand, we recognize "the custodial parent's interest in freedom of movement" and "the State's interest in protecting the best interests of the child."Id.(quotingHolder v. Polanski , 544 A.2d 852, 855(N.J.1988) ).Efforts to balance these interests gave rise to a succession of relocation statutes, beginning with NRS 125A.350.See1987 Nev. Stat., ch. 601, § 1, at 1444.

As a notice statute, NRS 125A.350 ’s main purpose was to inform the nonrelocating parent that the relocating parent would be moving with the minor child.Trent v. Trent , 111 Nev. 309, 315, 890 P.2d 1309,1313(1995)(" NRS 125A.350 is primarily a notice statute intended to prevent one parent from in effect ‘stealing’ the children away from the other parent by moving them away to another state and attempting to sever contact.").NRS 125C.200replacedNRS 125A.350, limiting the applicability of the relocation scheme to custodial parents who sought relocation.See1999 Nev. Stat., ch. 118, § 2, at 737-38.Thereafter, the Nevada Legislature added NRS 125C.006,NRS 125C.0065, andNRS 125C.007.See2015 Nev. Rev. Stat., ch. 445 § 16, at 2589-90, § 13, at 2588, § 14, at 2588-89.Notice statutesNRS 125C.006andNRS 125C.0065 expanded the scope of relocation to include both custodial parents and joint custodians.And NRS 125C.007 essentially codified factors the supreme court had already required district courts to consider when determining whether to grant relocation, particularly those established in Schwartz .107 Nev. at 383, 812 P.2d at 1271(announcing the Schwartz factors based in part on the D'Onofrio v. D'Onofrio , 365 A.2d 27, 30(N.J.1976), standard).

NRS 125C.007 is the statute in dispute here.NRS 125C.007 comprises NRS 125C.007(1)(the threshold test), NRS 125C.007(2)(the six relocation factors), and NRS 125C.007(3)(the burden of proof).The threshold test has three subparts, all of which the relocating parent must satisfy before the district court must proceed to the relocation factors.SeeNRS 125C.007(2)("If a relocating parent demonstrates to the court the provisions set forth in [ NRS 125C.007(1) ], the court must then weigh the [relocation] factors.").Under the first provision of the threshold test, the relocating parent must demonstrate "a sensible, good-faith reason for the move" and that "the move is not intended to deprive the non-relocating parent of his or her parenting time."NRS 125C.007(1)(a).The second provision requires the relocating parent to establish that "[t]he best interests of the child are served by allowing the relocating parent to relocate with the child."NRS 125C.007(1)(b).Finally, the third provision requires the relocating parent to show that "[t]he child and the relocating parent will benefit from an actual advantage as a result of the relocation."NRS 125C.007(1)(c).

As we explain below, supreme court authority informs the legislative intent behind "sensible, good faith reason" from provision one and "actual advantage" from provision three.But "best interests of the child" from provision two has evaded clear meaning.NRS 125C.007 does not define "best interests of the child"; it does not specify the burden of proof necessary to satisfy NRS 125C.007(1)(b); and it does not explain, as the parties debate here, whether courts must apply and make specific findings as to all the custody best interest factors in NRS 125C.0035(4) when making an NRS 125C.007(1)(b) determination.Supreme court authority does not define the "best interests of the child" in this context either.Therefore, district courts are left with little guidance regarding how to apply NRS 125C.007(1)(b) of the threshold relocation test.

With this appeal, we interpret what the Legislature meant by "best interests of the child" in NRS 125C.007(1)(b), including the application of the custody best interest factors, as well as the applicable burden of proof necessary to satisfy NRS 125C.007(1).We conclude that (1)NRS 125C.007(l)(b) requires a district court to make specific findings regarding whether relocation would be in the best interests of the child—which should include the custody best interest factors—and tie those findings to its conclusion; and (2) the applicable burden of proof for the threshold test is preponderance of the evidence.Here, the district court followed the correct procedures, so we affirm.

FACTS AND PROCEDURAL HISTORY

AppellantAnthony Jacob Monahan and respondentAmanda Kaitlyn Hogan had a child, M.M., in 2012.Both parties resided, separately, in Yerington.In 2015, the parties stipulated to, and the district court ordered, joint legal and physical custody.But Monahan began working outside Yerington, and Hogan's husband, a United States Navy lieutenant, was subsequently assigned to Naval Air Station Fallon.As a result, Hogan relocated with M.M. from Yerington to Fallon and moved the court to modify custody to reflect her de facto primary custody status.²In March 2019, the district court issued an order granting Hogan primary physical custody, finding that such an arrangement was in M.M.’s best interest in light of the custody best interest factors.The court also noted that Hogan's husband may need to relocate for work in the future.Later, in November 2019, the district court held a hearing to determine exact parenting time.Following that hearing, the district court entered an order setting parenting time and "incorporat[ing] by reference in its entirety" its March 2019 primary custody order.

In June 2020, Hogan moved to relocate with M.M. to Virginia Beach, Virginia, because her husband had been reassigned to a naval base there and Monahan would not consent to the relocation.Monahan opposed the motion, and the district court held an evidentiary hearing in September 2020.At the hearing, Monahan argued that it was not in M.M.’s best interests to relocate under NRS 125C.007(1)(b).He based this argument on the custody best interest factors.Hogan objected to the custody factors’ relevance at the outset and contended that they were inapplicable because the hearing concerned relocation rather than custody.The court permitted Monahan to use the custody factors to argue that relocation was not in

M.M.’s best interests because NRS 125C.007(1)(b) uses the term "best interests of the child" and the custody factors are used in determining a child's best interest.Later, after hearing the evidence, the court stated, "I don't see the [custody] best interest factors [in NRS 125C.0035(4)(a)-(l ) ] changing the relocation analysis, having considered [(a)] through [(l )]."

In October 2020, the district court entered an order granting Hogan's motion to relocate.The court analyzed each provision under NRS 125C.007(1) and each relocation factor under NRS 125C.007(2) and made relevant findings.Regarding NRS 125C.007(1)(b), the district court incorporated by reference and reevaluated its best interest findings from its November 2019 order, stating,

The [c]ourt finds it is in the minor child's best interest[s] to relocate with Mother to Virginia.The Court previously considered the best interest factors in its[ ]November 20, 2019 Order which granted Mother primary physical custody of the minor child, and the relocation does not modify any prior best interest factor findings.Mother's future move based upon her Husband's reassignment was contemplated at the time of the last custodial order.

This appeal followed.

ANALYSIS

NRS 125C.007(1)(b) states that "[i]n every instance of a petition for permission to relocate with a child that is filed pursuant to NRS 125C.006 or [NRS] 125C.0065, the relocating parent must demonstrate to the court that ... [t]he best interests of the child are served by allowing the relocating parent to relocate with the child."But NRS 125C.007(1)(b) does not define "best interests of the child" in this context, and it does not explain whether the district court must apply and make specific findings as to each custody best interest factor when deciding relocation.

Monahan argues the district court abused its discretion by incorporating its findings based on the custody best interest factors from its November 2019 order to satisfy NRS 125C.007(1)(b) in its October 2020 order.Because its November 2019 order had already incorporated its previous March 2019 best interest findings, Monahan contends the analysis was "stale," as the district court had made the best interest findings over a year and a half earlier.³Therefore, Monahan interprets "best interests of the child" within the meaning of NRS 125C.007(1)(b) as requiring the district court to analyze the custody factors anew whenever it considers a motion to relocate.Hogan responds that the district court was not required to apply the custody best interest factors to determine the child's best interests under NRS 125C.007(1)(b) because she already had primary physical custody and she moved for relocation under NRS 125C.006, which does not require a custody determination, unlike NRS 125C.0065, which does.Hogan also emphasizes that the district court nevertheless considered the custody factors and concluded that the...