Richmond v. Russell
| Decision Date | 29 December 2015 |
| Docket Number | No. 64397,64397 |
| Parties | NATHANIEL M. RICHMOND, JR., Appellant, v. ANDREA E. RUSSELL, Respondent. |
| Court | Nevada Supreme Court |
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
This is an appeal from a post-divorce decree order granting a motion to relocate and modifying child support. Eighth Judicial District Court, Family Court Division, Clark County; Gayle Nathan, Judge.
Respondent had primary physical custody of the parties' three minor children when she requested to relocate with them to California because she received a job offer there. At an initial hearing, the district court indicated that it would permit the children to temporarily relocate to California pending an evidentiary hearing or the parties could forgo discovery and schedule an expedited evidentiary hearing, whereby the children would be allowed to stay in Nevada until the motion was resolved. The parties agreed to the expedited evidentiary hearing, after which the district court granted respondent's motion and modified appellant's child support obligation to account for the transportation costs associated with his visitation. This appeal followed.
Having considered the record on appeal and the parties' briefs and oral arguments, we conclude that the district court did not abuse its discretion in granting respondent's motion to relocate to California with the children. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996) (). The district court properly concluded that respondent had a good faith basis for the move, Jones v. Jones, 110 Nev. 1253, 1259-61, 885 P.2d 563, 568-69 (1994), and went through the Schwartz v. Schwartz, 107 Nev. 378, 383, 812 P.2d 1268, 1271 (1991), factors thoroughly. Specifically, there was extensive evidence that the move would improve the quality of life of both respondent and the children. Schwartz, 107 Nev. at 383, 812 P.2d at 1271. Additionally, the court concluded that respondent was the parent more likely to foster a relationship with the other parent and that appellant would have more visitation days throughout the year after the children relocated than he currently had. See Trent v. Trent, 111 Nev. 309, 315-16, 890 P.2d 1309, 1313 (1995) (). Thus, the district court did not abuse its discretion in granting respondent's relocation motion.1
Appellant also argues that his due process rights were violated by having to choose between his children's temporary relocation toCalifornia or submitting to an expedited evidentiary hearing without discovery. While we are concerned about the position the district court placed appellant in, the district court's actions do not rise to the level of a due process violation because appellant requested the expedited evidentiary hearing, he had notice of the hearing, and he had the opportunity to oppose appellant's motion at the hearing. Rico v. Rodriguez, 121 Nev. 695, 702, 120 P.3d 812, 817 (2005) (); Callie v. Bowling, 123 Nev. 181, 183, 160 P.3d 878, 879 (2007) . Further, both parties agreed to forgo discovery in exchange for the expedited evidentiary hearing and the inability to conduct discovery applied equally to both of them. Additionally, it was within the district court's sound discretion to allow the temporary relocation, cf. In re Temporary Custody of Five Minor Children, 105 Nev. 441, 443, 777 P.2d 901, 902 (1989) (), especially under circumstances like those present here where the parent with primary physical custody is starting a job in another state before the court would have time to conduct an evidentiary hearing.
Lastly, in regard to appellant's argument that the district court abused its discretion in providing him with an offset to his child support obligation for the transportation costs associated with his visitation instead of requiring respondent to pay those costs directly, we conclude the district court did not abuse its discretion. NRS 125B.080(9)(i) (); Wallace, 112 Nev. at 1019, 922 P.2d at 543 (). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
/s/_________, J.
Parraguirre
/s/_________, J.
Douglas
I disagree with my colleagues' decision to affirm the district court's order granting respondent's motion to relocate because the district court violated appellant's procedural due process rights by providing him with the Hobson's choice of either losing his children for a few months or forgoing both discovery and a full and fair evidentiary hearing. Rico v. Rodriguez, 121 Nev. 695, 702, 120 P.3d 812, 817 (2005) (). Placing appellant in this position deprived him of the opportunity to truly and fairly oppose respondent's motion to relocate. See Callie v. Bowling, 123 Nev. 181, 183, 160 P.3d 878, 879 (2007) (). Without conducting discovery, appellant was unable to ascertain the best arguments to present to the court in opposition to the motion. Thus, appellant should have had the opportunity to conduct discovery before losing his children. See Blanco v. Blanco, 129 Nev., Adv. Op. 77, 311 P.3d 1170, 1175 (2013) ().
Further, the district court cannot permit the children to relocate, even temporarily, until the court has considered the Schwartz v. Schwartz, 107 Nev. 378, 383, 812 P.2d 1268, 1271 (1991), factors. In Schwartz, this court held that prior to granting a motion to relocate, the district court must consider whether (1) the move will improve the quality of life for the custodial parent and the children, (2) the custodial parent's motives are honorable in requesting the move, ...
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