Primm v. Lopes

• Decision Date: 27 May 1993
• Docket Number: No. 23207,23207
• Citation: 853 P.2d 103,109 Nev. 502
• Parties: Kathryn Dee PRIMM, Appellant, v. Thomas LOPES, Respondent.
• Court: Nevada Supreme Court

Page 103

853 P.2d 103

109 Nev. 502

Kathryn Dee PRIMM, Appellant, v. Thomas LOPES, Respondent.

No. 23207.

Supreme Court of Nevada.

May 27, 1993.

Geraldine Kirk-Hughes, Las Vegas, for appellant.

Randall H. Pike, Las Vegas, for respondent.

OPINION

PER CURIAM:

Appellant Kathryn Dee Primm ("Primm") gave birth to Thomas Lee In the early fall of 1990, Primm decided to accept a job transfer to Florida. In September 1990, Lopes, fearing that Primm might abscond with Thomas to Florida, filed a complaint to establish custody of Thomas. Specifically, Lopes requested that the court award joint legal custody, but grant Lopes primary physical custody of Thomas with reasonable visitation rights for Primm. After a hearing, the district court granted Lopes temporary physical custody of Thomas and further ordered the Nevada Child Custody Division to commence an evaluation (the "NCCD evaluation") of the custody matter.

Primm-Lopes ("Thomas") in 1987. Although Primm and respondent Thomas Lopes ("Lopes") never married, in March 1987, a district court order established Lopes' parentage.

Thereafter, the district court conducted an evidentiary hearing on Lopes' custody complaint. Although Primm did not include the transcript of this hearing in the record on appeal, the district court's order demonstrates that both parties testified at the hearing and that the court accepted the NCCD evaluation into evidence. In February 1991, the district court issued an order adopting the findings of the NCCD evaluation and concluding that Lopes provided the more stable living environment for Thomas. In deciding the custody issue, the district court also considered Primm's relocation to Florida. In turn, the district court awarded Lopes primary physical custody of Thomas, but granted Primm visitation rights and liberal telephone access to Thomas.

Over the next several months, Lopes and Primm filed various motions concerning the custody decree. Primm alleged that Lopes obstructed court orders and prevented her phone contact and in-person visitation with Thomas. Lopes responded that Primm made harassing phone calls and refused to maturely discuss visitation plans in a timely manner. As a result, during the summer of 1991 the court issued several orders concerning the details of visitation and custody.

In October 1991, Lopes filed a motion for, among other things, support. After oral argument the district court ordered, inter alia, that Lopes continue to exercise primary physical custody and that Primm pay support. This appeal ensued. Primm argues that the district court erred in granting Lopes primary physical custody of Thomas. Specifically, she contends: (1) the district court erred in considering her relocation to Florida in deciding the custody issue; and (2) substantial evidence did not support the award of custody to Lopes. We disagree and affirm.

DISCUSSION

The trial court enjoys broad discretionary powers in determining questions of child custody. This court will not disturb the lower court's determinations absent a clear abuse of discretion. Gilbert v. Warren, 95 Nev. 296, 594 P.2d 696 (1979); see Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991). Moreover, in child custody matters, a presumption exists that the trial court properly exercised its discretion in deciding what constitutes a child's best interest. Culbertson v. Culbertson, 91 Nev. 230, 533 P.2d 768 (1975).

Consideration of Primm's Relocation

Primm argues that the district court erred in considering her move as a factor in determining the custody award. The court, contends Primm, factored in her relocation based on an erroneous application of NRS 125A.350. ¹ She asserts, however that NRS 125A.350 does not apply to this case because this statute is applied only where the district court has previously established custody. Primm argues that prior to the February 1991 custody order, the district court had not established custody. Thus, she concludes that given the district court's erroneous application of NRS 125A.350, the district court abused its discretion in granting Lopes custody of Thomas. We cannot agree.

Evidence in the record does not support Primm's contention that the district court applied either the letter or spirit of NRS 125A.350. Nowhere in the custody order does the court mention or discuss the application of NRS 125A.350. Additionally, Primm's failure to supply a transcript of the custody hearing prevents this court from ascertaining whether the district court "applied" the statute at oral argument. Furthermore, neither party's moving or responding papers filed prior to the hearing mentions NRS 125A.350. Thus, Primm has not demonstrated that the district court applied NRS 125A.350.

Notwithstanding NRS 125A.350, Primm has failed to demonstrate that Nevada law precludes a district court from factoring in a parent's move in a custody determination. Indeed, the sole consideration in awarding custody of a minor is the best interest of the child. NRS 125.480(1). In turn, if the district court in its broad discretion finds that a parent's relocation to another state does not serve the best interest of the child, then the court should be able to consider the relocation in resolving the custody matter. Noble v. Noble, 86 Nev. 459, 470 P.2d 430 (1970) (the district court enjoys discretion in determining what constitutes the child's best interest); see NRS 125.480(4).

Additionally, the record reveals that the district court considered factors other than Primm's relocation in determining the best interest of Thomas. The district court's order evidences a consideration of the stability of Lopes' home, Lopes' employment history and his marital status in deciding that Lopes' exercise of custody served Thomas' best interest. The order also demonstrates that the district court relied heavily on the recommendations and considerations outlined in the NCCD evaluation.

Thus, we conclude that the district court did not erroneously apply NRS 125A.350. Instead, the district court properly considered Primm's move as one of the several factors that tipped the custody balance in Lopes' favor. Hence, in regard to this issue, Primm has not proven that the district court abused its discretion.

Substantial Evidence

This court will not set aside the district court's factual determinations supported by substantial evidence. Hermann Trust v. Varco-Pruden Buildings, 106 Nev. 564, 796 P.2d 590 (1990).

Primm argues that substantial evidence did not support the district court's determination that Lopes should enjoy primary physical custody of Thomas. Primm asserts that the evidence adduced at the various hearings amply demonstrated that Lopes frustrated and interfered with her visitation rights and her phone contact with Thomas. Thus, she concludes that the district court abused its discretion in awarding Lopes custody.

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