Myers v. Haskins

• Decision Date: 30 June 2022
• Docket Number: 83576-COA
• Citation: 513 P.3d 527
• Parties: Lisa S. MYERS, Appellant, v. Caleb Obadiah HASKINS, Respondent.
• Court: Nevada Court of Appeals

513 P.3d 527

Lisa S. MYERS, Appellant,

v.Caleb Obadiah HASKINS, Respondent.

No. 83576-COA

Court of Appeals of Nevada.

FILED JUNE 30, 2022

Patricia A. Marr, Ltd., and Patricia A. Marr, Henderson, for Appellant.

Caleb Obadiah Haskins, Philomath, Oregon. Pro Se.

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

OPINION

By the Court, GIBBONS, C.J.:

Nearly 30 years ago, the Nevada Supreme Court held that district courts may deny a motion to modify child custody without holding an evidentiary hearing if the movant fails to demonstrate a prima facie case for modification. Rooney v. Rooney , 109 Nev. 540, 542-43, 853 P.2d 123, 124-25 (1993). Since that decision, district courts have struggled with an unanswered question: what sources may a district court consider in determining whether a movant has demonstrated a prima facie case for modification? Today, we answer this question. We hold that when a district court seeks to determine if the movant has demonstrated a prima facie case for modification under Rooney , it must generally consider only the properly alleged facts in the movant's verified pleadings, affidavits, or declarations. It must not consider the alleged facts or offers of proof the nonmovant provides.

Despite this general rule, we also announce an exception. We hold that a district court may look to the nonmovant's evidentiary support when it "conclusively establishes" the falsity of the movant's allegations. The rules we announce today will help align current practice with Rooney ’s central purposes: discouraging challenges to temporary custody orders and preventing repeated and insubstantial motions to modify custody. See id. at 543 n.4, 853 P.2d at 125 n.4. While Nevada courts generally adhere to the policy of deciding a case fully upon its merits, especially in child custody cases, see Dagher v. Dagher , 103 Nev. 26, 28, 731 P.2d 1329. 1330 (1987), this opinion reiterates that a movant must first show the district court—using specific, properly alleged facts—that his or her motion is potentially meritorious on its face.

FACTS AND PROCEDURAL HISTORY

Caleb Obadiah Haskins and Lisa S. Myers married in 2009 and divorced in 2012. They have one minor child together: S.H. (now 12 years old). Under the current, custody order,¹ they share joint legal custody of S.H., except Caleb has sole legal custody for medical decisions. Caleb has primary physical custody of S.H. Because Caleb lives in Oregon and Lisa lives in Nevada, Lisa is allotted, at a minimum, spring break and summer break for parenting time.

In 2020, Lisa failed to return S.H. to Caleb after summer break. According to Lisa, she purchased S.H.’s plane ticket and took her to the airport. But upon arrival, S.H. expressed fear about returning to Caleb, had a panic attack, vomited twice in the restroom, and refused to board the plane. Lisa alleged that she tried later that same day to get S.H. to board the plane, but S.H. "began crying, stated her stomach was still ill, and she again, refused to go." Lisa then notified Caleb that she would not return S.H.

Caleb consequently filed a motion requesting that the court enforce the custody order by ordering Lisa to return S.H., modify the form of Lisa's parenting time to virtual, and issue a standard behavior order. Lisa in turn opposed Caleb's motion and filed a countermotion to modify physical custody. In that opposition and countermotion, Lisa alleged generally, and with specific examples, that Caleb medically, physically, and educationally neglected S.H.; verbally and emotionally abused S.H.; made S.H. sleep in a nonbedroom on a foam mattress on the floor because of an overcrowded house; and denied Lisa parenting time and substantially interfered with it when it did occur. Lisa supported her opposition and countermotion with a declaration. See NRS 53.045 (permitting an unsworn declaration signed by the declarant under penalty of perjury in lieu of an affidavit). Caleb responded, denied the allegations, and provided documents and reports in support of his position.

The district court then held a nonevidentiary hearing on Caleb's motion, which it granted. However, the court also found sua sponte that Lisa had demonstrated adequate cause to reopen discovery and provided her the opportunity to gather sufficient proof of her claims in her countermotion to modify physical custody.² It then granted the parties 90 days to conduct discovery.

At the end of the discovery period, Lisa submitted informal³ offers of proof she claimed supported her allegations. Caleb likewise offered documents that he claimed contradicted Lisa's allegations. At the subsequent nonevidentiary hearing, the district court stated that it was a "close call" as to whether Lisa had demonstrated adequate cause for an evidentiary hearing because of the documents Caleb provided and the statements he made in his supporting declaration. But the court was concerned that Lisa did not have a full opportunity to respond to Caleb's documents and allegations,⁴ so it allowed Lisa time to submit a responsive declaration herself. Lisa did so, largely contesting Caleb's allegations, explaining some of the documents he provided and arguing some of those documents even supported her claims.

After Lisa filed her responsive declaration, the district court denied Lisa's countermotion to modify physical custody, without holding an evidentiary hearing. In denying the countermotion, the court summarily concluded that

the countermotion filed by Lisa Myers and her supporting filings do not state facts that would support a substantial change in circumstances affecting the welfare of the child, and that the child's best interest is served by the modification. The countermotion lacks merit and should be denied

This appeal followed.

ANALYSIS

Now on appeal. Lisa argues that the district court abused its discretion in denying her countermotion to modify physical custody without first holding an evidentiary hearing. She claims that she presented a prima facie case for modification because she provided declarations and informal offers of proof in the form of summaries of anticipated witness testimony, documents, and video. Caleb, however, argues the court did not abuse its discretion in denying Lisa's countermotion without holding an evidentiary hearing. He claims instead that Lisa failed to demonstrate a prima facie case for modification because his "discovery responses addressed and disapproved [sic] all [of Lisa's] allegations."⁵

We review a district court's decision to deny a motion to modify physical custody without holding an evidentiary hearing for an abuse of discretion. See Bautista v. Picone , 134 Nev. 334, 338, 419 P.3d 157, 160 (2018). A district court abuses its discretion only when "no reasonable judge could reach a similar conclusion under the same circumstances." In re Guardianship of Rubin , 137 Nev., Adv. Op. 27, 491 P.3d 1. 6 (2021) (internal quotations omitted) (quoting Leavitt v. Siems , 130 Nev. 503, 509, 330 P.3d 1, 5, (2014) ). But "deference is not owed to legal error, or to findings so conclusory they may mask legal error." Davis v. Ewalefo , 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015) (internal citations omitted). We "must be satisfied that the court's determination was made for the appropriate reasons." Sims v. Sims , 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993).

Generally, "[l]itigants in a custody battle have the right to a full and fair hearing concerning the ultimate disposition of a child." Moser v. Moser , 108 Nev. 572, 576, 836 P.2d 63, 66 (1992). But when a movant seeks to modify physical custody, a district court only needs to hold an evidentiary hearing if the movant demonstrates "adequate cause" for one. Rooney , 109 Nev. at 542, 853 P.2d at 124. "Adequate cause" arises if the movant demonstrates a prima facie case for modification. Id. at 543, 853 P.2d at 125. And to modify physical custody in Nevada, the movant must show that "(1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child's best interest is served by the modification." Romano v. Romano , 138 Nev., Adv. Op. 1, 501 P.3d 980, 983 (2022) (quoting Ellis v. Carucci , 123 Nev. 145, 150, 161 P.3d 239, 242 (2007) ).

This case asks us to address what evidence and allegations the district court may consider in determining whether the movant has demonstrated a prima facie case for modification. In determining whether a movant has demonstrated a prima facie case for modification of physical custody, the court must accept the movant's specific allegations as true. See Geibe v. Geibe , 571 N.W.2d 774, 777 (Minn. Ct. App. 1997) (providing that, in evaluating whether the movant established a prima facie case for custody modification, district courts must accept the movant's allegations as true).; Volz v. Peterson , 667 N.W.2d 637, 641 (N.D. 2003) (same);⁶ cf. Barelli v. Barelli , 113 Nev. 873, 879-80. 944 P.2d 246, 249-50 (1997) (requiring district courts to accept a movant's allegations as true in considering whether the movant demonstrated a prima facie case under NRCP 41(b) ); Mann v. State, 118 Nev. 351. 354, 46 P.3d 1228, 1230 (2002) ("[W]here ... something more than a naked allegation has been asserted, it is error to resolve the apparent factual dispute without granting ... an evidentiary hearing ...." (quoting Vaillancourt v. Warden , 90 Nev. 431. 432, 529 P.2d 204, 205 (1974) ). Thus, the district court should not require that the movant prove his or her allegations before holding an evidentiary hearing. See Betzer v. Betzer , 749 S.W.2d 694, 695 (Ky. Ct. App. 1988) (holding affidavits alone may be considered in determining adequate cause for a hearing); Geibe , 571 N.W.2d at 777 ; cf. DCR 13(6) ("Factual contentions involved in any pre-trial or posttrial motion shall be initially presented and heard upon affidavits."): Rooney , 109 Nev. at 542-43. 853 P.2d at 124-25 (permitting a court to deny a motion to modify physical...