Mosley v. Figliuzzi, 26516

• Decision Date: 03 January 1997
• Docket Number: No. 26516,26516
• Parties: Donald M. MOSLEY, Individually, Appellant/Cross-Respondent, v. Terry Marie FIGLIUZZI, Respondent/Cross-Appellant.
• Court: Nevada Supreme Court

Page 1110

930 P.2d 1110

113 Nev. 51

Donald M. MOSLEY, Individually, Appellant/Cross-Respondent, v. Terry Marie FIGLIUZZI, Respondent/Cross-Appellant.

No. 26516.

Supreme Court of Nevada.

Jan. 3, 1997.

Carl E. Lovell, Las Vegas; Jimmerson, Davis & Santoro, Las Vegas, for Appellant/Cross-Respondent.

Beasley, Holden & Kern, Reno, for Respondent/Cross-Appellant.

OPINION

SPRINGER, Justice:

Donald Mosley, the father of four-year-old Michael Mosley, appeals the judgment of the trial court which terminated this father's joint legal and physical custody of his son, and vested "sole custody" in the child's mother, Terry Figliuzzi.

Shortly after Michael was born, the district court, in accordance with the wishes of the parents, decreed that the parents should have joint custody, with appropriate residential arrangements that would accommodate the child's age. Three out of the four times that the matter of custody came before the district court, the court concluded that joint custody was in the best interest of the child.

After the third joint custody decree was entered, the mother was successful in having the matter transferred to a new judge. She then applied for a hearing on her "Motion to Amend Court Order," a motion which she filed less than three weeks after the third joint custody decree. The stated purpose of her "Motion to Amend Court Order" was to correct claimed irregularities in the joint custody decree. The district court held hearings on the mother's motion to correct the third joint custody order, a motion which did not even suggest that custody be taken away from the father and given to the mother. For reasons that are not apparent from the record, the trial court, rather than either granting or denying the mother's Motion to Amend Court Order, decided to terminate the father's custodial rights and grant sole custody to the mother.

Apart from the readily apparent procedural defect inherent in the court's terminating the father's custody without having a change of custody motion before the court, the district court did not act in accordance with the state statutes relating to custody that were in effect at the time when it ordered the termination of joint custody. For these reasons the judgment of the trial court must be reversed.

LITIGATION HISTORY

Michael Mosley was born on February 15, 1992. The first joint custody order was issued pursuant to a court master's recommendation. In June of 1993, the original joint custody decree was modified by a superseding "Stipulation and Order" under which the mother and father agreed that it was "the intention of the parties to reach, when the child is of an appropriate age, a true 50/50 time share."

In March of 1993, the mother sought to terminate the joint custody arrangement on the ground that she and the child's father were "unable to cooperate, communicate and support each other as parents" and that the child was in need of "the stability and structure inherent in a sole custody situation." ¹ The mother's March 1993 motion to dissolve the joint custody arrangement was not heard until July of 1993. At this time the mother's counsel argued that "joint custody was not appropriate given the friction of the parties" and asked that the parents' joint custody be terminated and that the mother be awarded custody of the child "with a 50/50 time share if that can be worked out, so the child is spending good quality time with both parents." During the July 1993 hearing on the mother's motion for change of custody the district court asked the mother's counsel directly if, aside from the question of whether "joint" custody should continue, she had any "philosophical or practical objections to an equal division of time?" The mother answered the court's question by saying, "If Don [the father] is spending the time with Michael, I have never had an objection to that," adding that she did not "want to divide it up so Michael's life is so disrupted, and he's back and forth every night, and Don isn't with him."

After denying the mother's motion to dissolve the joint custody decree, the court in continuing the joint custody arrangement appropriately commended the parties for their willingness to share custody on an equal basis, stating that the mother and father were "both intelligent human beings, and each has quite a lot to offer both society and the child. And I believe that the child's best interests are best served by having a father and a mother both involved in being responsible for him and sharing time equally with him." (Emphasis added.) As stated, the court denied the mother's application for sole custody ² and ruled that "joint custody will continue as previously recommended and twice ordered by other courts with the division of time ..., and now is the time to move to the equal division of time which the parties had stipulated to and was ordered by the previous court."

The court then explained that it understood the "disadvantage of moving the children" back and forth, but that, "[h]aving recognized that [disadvantage], ... the advantage of the child knowing each parent, having a mother and a father, and having only one move per week outweighs the disadvantages." (Emphasis added.) Based on these considerations the court ordered joint physical custody, with the child's being with the father approximately half of the time, with only one transfer per week, the final order being issued on August 26, 1993. At the time of the entry of this August 26, 1993 decree, the district court adjudged that "the child's best interests are best served by having a father and a mother involved in being responsible for him and sharing time equally with him," and by the child's "knowing each parent, [and] having a mother and a father."

Three joint child custody decrees have been entered in this case. The eventual termination of joint custody of this child was the outcome of the mother's filing a proper person "Motion to Amend Court Order," filed on September 13, 1993. The mother's motion was filed less than three weeks after entry of the third joint custody decree of August 26, 1993. The mother's motion for correction did not seek a termination of the long-standing joint custody decree or the vesting of sole custody in the mother; rather, the motion merely sought to "amend the Order [of August 26] to more accurately reflect the decisions rendered by the Court. A proposed Amended Order is attached." The attached "Amended Order" proposed by the mother suggested changes in residential arrangements but fully accepted the court's August 26 findings and conclusions that "joint custody is in the best interest of the minor child," that the parties had stipulated to joint custody, that the "child needs both parents" and that after a prescribed " 'time out' between them ... good sense and fair play will take over in order that the parties will be able to raise a healthy, happy child." The "Amended Order," proposed by the mother and attached to her motion also recognized the above-quoted provision that "custody shall be divided 50/50, equally, between the parties as was the intention set forth by the Arbitrator previously and in the Stipulation and Order executed by the parties previously." The gist of the mother's motion to amend the August 26 decree was to correct claimed discrepancies between the order and the transcript and to "request[ ] that such discrepancies be amended to reflect the true decision handed down by the court." The motion contained no request for a change of custody.

The mother's Motion to Amend Court Order, filed for the stated purpose of correcting supposed discrepancies between the transcript and the court's order, lay dormant from its filing in September of 1993 and was not brought to a hearing until June 3, 1994. By the time of the June 3 hearing, the judge who had been hearing the case disqualified himself, filing a document on March 15, 1994, in which he stated that he had "come into information concerning the respondent, Terry Marie Figliuzzi" and that the information was "so prejudicial against her" (such as her "attempting to manipulate the judicial process without consideration for the best interests of the minor child") that he did not believe that he could continue to judge the case in an impartial and unbiased manner.

On June 3, 1994, a newly-assigned judge, Judge Steven Kosach, held a hearing on the mother's motion to correct supposed discrepancies in the joint custody decree. No custody decision came out of the June 3 hearing, but the court did enter an order appointing one Linda Peterson, Ph.D "for the purpose of a home evaluation and evaluation of both parties and their child"; and hearing on the Motion to Amend Court Order was deferred until September 9, 1994, presumably for the purpose of informing the court on matters relating to residential arrangements under the August 26, 1993, joint custody decree. On the day before the September 9 hearing on the Motion to Amend Court Order, the mother presented to the court for the first time the suggestion that she wanted a radical change in child custody. In a supporting document entitled "Summary of Relief Requested by Respondent Terry Marie Figliuzzi," filed the day before the court hearing, the mother notified the court and the father for the first time that she thought "the previous custody order" (of August 26, 1993) "should be changed," and urged that she be granted "primary physical custody of Michael" and that the father's "visitation with his son be limited and supervised."

On the day before hearing, the mother announced her intention to change her approach from that of "modifying" and correcting "discrepancies" (per the mother's September 1993 Motion to Amend Court Order) to seeking a radical change of custody whereby the father's custody would be terminated. A reading of this record gives reason to believe that the mother's change of position from that of correcting discrepancies by way...