Rennels v. Rennels

• Decision Date: 04 August 2011
• Docket Number: No. 53872.,53872.
• Citation: 127 Nev. Adv. Op. 49,257 P.3d 396
• Parties: Audrey RENNELS, Appellant,v.Roger RENNELS and Jennifer Rennels, Respondents.
• Court: Nevada Supreme Court

257 P.3d 396

127 Nev. Adv. Op. 49

Audrey RENNELS, Appellant,

v.Roger RENNELS and Jennifer Rennels, Respondents.

No. 53872.

Supreme Court of Nevada.

Aug. 4, 2011.

Hutchison & Steffen, LLC, and Michael K. Wall, Las Vegas, for Appellant.Law Office of Daniel Marks and Daniel Marks, Las Vegas, for Respondents.BEFORE SAITTA, HARDESTY and PARRAGUIRRE, JJ.

OPINION

By the Court, HARDESTY, J.:

Grandparents and other nonparents are typically not entitled to visitation with a minor child as a matter of right because there is a recognized presumption that a parent's desire to deny visitation is in the best interest of the child. However, pursuant to NRS 125C.050, a grandparent or other nonparent may be granted judicially approved visitation rights in some instances. The first issue presented in this appeal is whether the stipulated visitation order between a parent and a grandmother was a final decree entitled to res judicata protections. We conclude that it was, so we must next examine whether the parental presumption continues to apply when a parent seeks to modify or terminate a nonparent's judicially approved visitation rights with a minor child. We conclude that the parental presumption applies at the time of the court's initial determination of a nonparent's visitation rights. However, when, as in this case, a parent seeks to modify or terminate the judicially approved visitation rights of a nonparent, the parental presumption is no longer controlling.

In so concluding, we adopt the two-prong test enunciated in Ellis v. Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007), in circumstances where a party seeks to modify or terminate a nonparent's judicially approved visitation rights with a minor child, and we now hold that modification or termination of a nonparent's judicially approved visitation rights is only warranted upon a showing of a substantial change in circumstances that affects a child's welfare such that it is in the child's best interest to modify the existing visitation arrangement. Id. Applying the test to this case, we conclude that the district court failed to articulate any substantial change in circumstances before it terminated appellant's nonparent visitation rights with her granddaughter and, therefore, it is not in the best interests of the child to terminate visitation. Thus, we reverse.

FACTS

Respondent Roger Rennels and Martha Contreras were married in 1994 and had a child, Martina, in 1999. In 2001, the couple divorced, and Roger received sole custody of Martina. Approximately two months after Roger and Martha divorced, Roger and Martina resided with Roger's mother, appellant Audrey Rennels, in northern California. They lived with Audrey for five months, during which time Martina and Audrey enjoyed a close relationship. After living with Audrey, Roger and Martina moved to Texas. Martina and Audrey remained close after the move. Audrey also visited Roger and Martina in Texas several times, and Martina visited Audrey for several weeks in 2002. In July 2003, Roger and Martina moved to Las Vegas. Thereafter, Roger married his current wife, respondent Jennifer Rennels, and Jennifer adopted Martina in June 2006.

According to Audrey, Roger disapproved of the frequent contact between Martina and Audrey, and he stopped allowing Martina to see Audrey in June 2004. In response, Audrey sought court-ordered nonparental visitation pursuant to NRS 125C.050, which allows a nonparent to seek visitation rights. Roger opposed Audrey's petition and also filed a motion to dismiss or for summary judgment.

The district court conducted a hearing in December 2005 and denied the motion to dismiss, noting that an evidentiary hearing was required because there is a rebuttable presumption that granting nonparental visitation over a parent's objection is not in the child's best interest. Before the evidentiary hearing occurred, however, the parties reached a settlement of the visitation issues. Pursuant to this settlement, the parties prepared and submitted to the court a stipulation and order in which they agreed that “all pending issues” between them were resolved and specified a detailed visitation schedule for Audrey. The district court approved the stipulation and issued a visitation order effecting its provisions.

The visitation order included the appointment of a guardian ad litem and allowed Audrey to have four supervised visits with Martina per year. The guardian ad litem was instructed to select a psychologist, and Audrey, Roger, and Martina were required to undergo counseling with the selected psychologist. The supervised visitation requirement was to be reviewed every six months by the guardian ad litem and the psychologist to determine whether supervision was still necessary. Under the visitation order, if the guardian ad litem and the psychologist concluded that Audrey could have unsupervised visits, Roger would abide by that determination. The order also provided that, before involving the district court again, the parties would attempt to mediate any visitation disputes with the guardian ad litem.

The parties apparently followed the visitation order until 2008. During this time, the psychologist, Dr. John Paglini, gave generally favorable reports regarding Audrey and Martina's visits, and he ultimately recommended unsupervised visitation. However, Roger refused to allow unsupervised visits. In December 2008, three months after Dr. Paglini recommended unsupervised visits, Audrey filed a motion to compel Roger to comply with the visitation order. In her motion, Audrey asserted that she was entitled to unsupervised visits based on the visitation order and Dr. Paglini's recommendation. Roger and Jennifer opposed Audrey's motion and, concurrently, filed a countermotion to terminate Audrey's visitation rights altogether. They argued that the district court failed to comply with Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion), which held that parents have a due process right to make child rearing decisions, and this creates a presumption that a parent's wishes are in the best interests of the child. Id. at 69–70, 120 S.Ct. 2054. In reply, Audrey argued that the district court complied with Troxel, and that the parties stipulated to a visitation schedule. She further contended that the stipulated visitation order was a final judgment and therefore res judicata principles applied.

After hearing the parties' arguments on the motions, the district court denied Audrey's motion to compel Roger's compliance with the stipulated visitation order and terminated her visitation rights. The district court reasoned, in relevant part, that: (1) Audrey had no fundamental rights to visitation in light of the presumption that fit parents act in the best interest of the child, even with a prior visitation order in place; (2) acrimony between the parties had increased; and (3) continued visitation was not in Martina's best interest. This appeal followed.

DISCUSSION

In resolving this appeal, we must first determine whether the stipulated visitation order is a final order that precluded relitigation of Audrey's right to visitation with Martina. We then consider the proper standard for determining whether modification or termination of Audrey's judicially approved nonparental visitation rights was warranted.

Standard of review

Generally, “[t]his court reviews the district court's decisions regarding custody, including visitation schedules, for an abuse of discretion,” Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009), because child custody matters rest in the trial court's sound discretion. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). The district court's factual findings will not be set aside if supported by substantial evidence. Ellis v. Carucci 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). However, “we will review a purely legal question ... de novo.” Waldman v. Maini, 124 Nev. 1121, 1128, 195 P.3d 850, 855 (2008). Determining whether a stipulated visitation order is final is a question of law subject to de novo review.

The stipulated visitation order was final

There is strong public policy favoring the prompt agreement and resolution of matters related to the custody, care, and visitation of minor children. See Rivero, 125 Nev. at 429, 216 P.3d at 226–27 (recognizing that parties are free to contract regarding child custody and such agreements are generally enforceable); Ellis, 123 Nev. at 151, 161 P.3d at 243 (same). Therefore, we encourage voluntary resolution of these matters, and we will generally recognize the preclusive effect of such agreements if they are deemed final.¹ See Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004) (explaining that the “changed circumstances” factor, which is required to modify a primary physical custody arrangement, is based on res judicata principles); see also Hopper v. Hopper, 113 Nev. 1138, 1143–44, 946 P.2d 171, 174–75 (1997); Mosley v. Figliuzzi, 113 Nev. 51, 58, 930 P.2d 1110, 1114 (1997).

An order is final if it “disposes of the issues presented in the case ... and leaves nothing for the future consideration of the court.” Valley Bank of Nevada v. Ginsburg, 110 Nev. 440, 445, 874 P.2d 729, 733 (1994) (alteration in original) (internal quotations omitted). Finality is determined based on what the order “actually does, not what it is called.” Id. In the family law context, the California Supreme Court has held that a “stipulated custody order is a final judicial custody determination ... if there is a clear, affirmative indication the parties intended such a result.” Montenegro v. Diaz, 26 Cal.4th 249, 109 Cal.Rptr.2d 575, 27 P.3d 289, 295 (2001). It is irrelevant whether the order is the result of a stipulated agreement between the parties that is later judicially approved or it is achieved through litigation. Id. at 294. Instead, the relevant inquiry is whether the order fully...