Roe v. Roe
| Decision Date | 18 May 2023 |
| Docket Number | 84893-COA |
| Parties | MAGGIE ROE, N/K/A MAGGIE COX, Appellant, v. JASON J. ROE, Respondent. |
| Court | Nevada Court of Appeals |
UNPUBLISHED OPINION
ORDER AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Maggie Cox appeals from a district court order modifying custody of a minor child. Eighth Judicial District Court, Family Division, Clark County; Dawn Throne, Judge.
Maggie Cox and Jason J. Roe had been divorced for approximately seven years when Maggie filed a motion to modify custody of their child, H.R., who was then eleven years old.[1] At the time, the parties shared joint physical and legal custody, with the most recent custodial order | being entered by stipulation in 2017. In her motion, Maggie argued that H.R.'s behavior and attitude toward her had become increasingly and alarmingly disrespectful and aggressive which she attributed in part to Jason's conduct and influence. In addition to seeking primary physical custody Maggie asked the district court to also enter orders for therapy for H.R. and requested a brief focused assessment to determine the likely cause of H.R.'s change in demeanor. Jason opposed the motion and filed a countermotion for primary physical custody. The district court granted the motion for therapy, granted the brief focused assessment, and set a hearing date on the parties' motions to modify custody.
The therapist who conducted the brief focused assessment, Maureen Zelensky, met with H.R., Maggie, and Jason multiple times to conduct her assessment. She also reviewed the entire record of the case, spoke with attorneys, and consulted with H.R.'s personal therapist. Ms. Zelensky's final report to the district court suggested that Jason was likely engaging in parental alienation. Also, Maggie was almost certainly suffering from anxiety and possibly from post-traumatic stress disorder, which in Ms. Zelensky's opinion likely contributed to her highly emotional conduct. Based on her assessment, Ms. Zelensky recommended that the district court enter a behavior order for both parents and maintain the week-on-week-off parenting time schedule. The district court adopted the recommendations and entered an order for the parties to maintain joint physical and legal custody. The district court set a date for a status check.
Before the status check, the situation between Maggie and H.R. took a turn for the worse. On two separate occasions, H.R. was taken into custody by law enforcement for battery against Maggie while Maggie was exercising her parenting time. H.R was found to be the primary aggressor both times and was taken from Maggie's home by the police for a 12-hour detainment period after both incidents. The record is clear that Maggie never called the police on H.R.; in the first situation, the call came from her mother, and in the second situation, the call was from Jason. The record also supports Maggie's claim that once others had called the police she had no choice but to let H.R. be taken into custody.[2] Based on these incidents, Jason filed an emergency motion for sole legal and physical custody of H.R. In March 2021, the district court granted the motion, finding "something wrong with the parent who cannot manage an 11-year-old," that Maggie had been the one to call the police on H.R., and that her behavior was "histrionic." The court also found that upon H.R.'s release from custody, Maggie should have let H.R. go with Jason, despite it still being Maggie's parenting time. The district court supported this conclusion by finding that Maggie "is obviously not able to parent her son" and "it is not safe when you have the police call out to your home as somebody might get shot, and it is not safe." The district court ordered Maggie's contact with H.R. immediately restricted and limited to reunification therapy sessions conducted by Dr. Sunshine Collins and six hours of parenting time weekly. The district court also appointed a parenting coordinator and a guardian ad litem, with the costs of each split between Maggie and Jason.
A few months later, Maggie took H.R. out for a day of bowling and shopping. During the outing, H.R. ran from Maggie, hid in a bathroom at a local store, and called Jason to be picked up. Maggie believed H.R. ran after becoming upset about losing the bowling game, while Jason claimed H.R. ran because he feared that Maggie would have him arrested again.
As a result of the continued conflict between Maggie and H.R., the parenting coordinator recommended in August 2021 that all contact be "paused" between Maggie and H.R. until the district court could sort out the issues between the parents. Along with her recommendation, the parenting coordinator also informed the court that Maggie, an educator, would likely be unable to pay for Dr. Collins's services. Dr. Collins was outside of Maggie's insurance network and the district court had also ordered Maggie to pay other obligations, including child support to Jason. The parenting coordinator recommended that Jason bear some of the cost of reunification services and that he should be included in the sessions.
Jason filed an objection, in part, to the parenting coordinator's recommendation that he attend or partially pay for reunification services. In September 2021, the district court granted Jason's objection and ordered Maggie to "have [no contact]" with H.R. "outside of the therapeutic services" with Dr. Collins. At that point, Maggie had already fallen into arrears on paying for reunification therapy, and Dr. Collins was requiring Maggie to attend several individual sessions before she would be allowed to start joint sessions with H.R. Thus, when the district court granted Jason's objection, it effectively prohibited all contact of any kind between Maggie and H.R.[3]
Maggie withdrew her motion for primary custody and instead asked the court to maintain joint physical and legal custody pursuant to the 2017 order. The district court set the case for an evidentiary hearing in March 2022, now solely on Jason's motion for modification of custody. The district court advised the parties that, at the hearing, they would be restricted from introducing evidence that predated the 2017 order.
During the March 2022 hearing, evidence was introduced that showed Maggie could not afford Dr. Collins's services and that both her and Dr. Collins agreed they were not a good therapeutic fit for Maggie's individual sessions. On March 11, 2022, day two of the hearing, the district court learned that its September 2021 order had prevented Maggie from contacting H.R. on the child's birthday and that the order had also prevented Maggie from sending gifts or cards to H.R. during the holidays.
The district court referred to this order as "the no contact order of Dr. Collins." The district court then orally modified its no-contact order and allowed Maggie to send cards to, text, or call H.R.
At the close of the hearing, the district court maintained joint legal custody but granted Jason what it called primary physical custody, finding a substantial change of circumstances in the deterioration of H.R. and Maggie's relationship. The district court also considered H.R.'s best interests and found that H.R. wanted to live with Jason and that the relationship between H.R. and Jason was comparatively less fraught.[4] See NRS 125C.0035(4). The district court merely referred to the "March 11, 2022, Order" in setting Maggie's parenting time, ostensibly limiting Maggie's parenting time to cards, texts, and calls. Thus, in the district court's final order modifying custody, Maggie was awarded no in-person parenting time with her son.
The district court also ordered Maggie to attend individual therapy with Dr. Collins twice per month, with the goal of working towards joint sessions with H.R. If Maggie did not attend twice a month, the court ordered the downward adjustment of her child support to be terminated.[5]Dr. Collins was also given authority to determine when the expansion of Maggie's parenting time could include in-person contact with H.R. Finally, the district court ordered Maggie to pay $11,365 in attorney fees and costs to Jason because he was the prevailing party.
On appeal, Maggie takes issue with the limitations the district court placed on her parental rights and the fairness of process below. Maggie contends that the district court: (1) did not have substantial evidence to modify child custody, as it improperly considered child testimony and abused its discretion in finding there was a substantial change of circumstances since the 2017 order; (2) demonstrated actual bias against her; (3) violated her parental rights; and (4) abused its discretion in awarding attorney fees. Maggie also argues that the district court's errors are to such a degree that this court should reverse the district court's order and remand with instructions to conduct a new evidentiary hearing presided over by a different judge.
Standard of Review
A district court's child custody order is reviewed for an abuse of discretion. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). Factual findings of the district court will not be set aside if "supported by substantial evidence, which is evidence that a reasonable person may accept as adequate to sustain a judgment." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007) (footnote omitted). However, this court gives no deference to conclusory findings of a district court that mask legal error. Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015).
Substantial evidence supports the district court's finding that there was a substantial change in circumstances based on the deterioration in Maggie and H.R.'s relationship. See Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980,...
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