Romano v. Romano

• Decision Date: 13 January 2022
• Docket Number: No. 81439,No. 81259,81259
• Citation: 501 P.3d 980
• Parties: Aaron ROMANO, Appellant, v. Tracy ROMANO, Respondent. Aaron Romano, Appellant, v. Tracy Romano, Respondent.
• Court: Nevada Supreme Court

501 P.3d 980

Aaron ROMANO, Appellant,

v.Tracy ROMANO, Respondent.

Aaron Romano, Appellant,

v.Tracy Romano, Respondent.

No. 81259

No. 81439

Supreme Court of Nevada.

FILED JANUARY 13, 2022

The Abrams & Mayo Law Firm and Rena G. Hughes and Jennifer V. Abrams, Las Vegas, for Appellant.

Kainen Law Group and Racheal H. Mastel, Edward L. Kainen, and Andrew L. Kynaston, Las Vegas, for Respondent.

BEFORE THE SUPREME COURT, EN BANC.

OPINION

By the Court, CADISH, J.:

In these consolidated appeals, we consider the circumstances under which a district court may modify the joint physical custody of minor children and a parent's child-support obligations. As to custody, we hold that a court may modify a joint or primary physical custody arrangement only if (1) there has been a substantial change in circumstances affecting the welfare of the child and (2) the modification serves the best interest of the child. This two-part inquiry unifies tests previously applied by this court in determining whether a joint or primary physical custody arrangement should be modified on a parent's motion. Regarding child support, we hold that the new child-support guidelines alone do not constitute a change in circumstances necessary to support a motion to modify a child-support obligation. Applying these standards to this case, we conclude the district court did not abuse its discretion when it denied appellant's motion to modify the parties’ physical custody designation and his child-support obligation. Additionally, we conclude that the district court did not abuse its discretion in awarding respondent attorney fees and costs. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

Appellant Aaron Romano and respondent Tracy Romano divorced in 2019. Before the decree was entered, in March 2019, the parties agreed to resolve all issues relating to the custody, control, and care of their seven minor children in a stipulated order. This agreement created a complex timeshare regarding the physical custody of each child. Under the timeshare, the oldest 3 children are in Aaron's custody approximately 90 percent of the time, while the younger 4 children are in Tracy's custody approximately 95 percent of the time. The agreement indicates that both parties will make efforts to have the minor children spend more time with the other parent. Although the timeshare does not meet the at-least-40-percent-physical-custody standard for joint physical custody, the parties agreed to joint physical custody of the children, regardless.

In June 2019, after the parties resolved custody, they stipulated to a Marital Settlement Agreement (MSA), which provides terms regarding alimony, income, and child support. Pursuant to the MSA, Aaron owes Tracy $1,138 per month per child, the presumptive maximum for child support at the time, for the four youngest children and $569 per month for one of the older children. The MSA further provides that the prevailing party in litigation concerning the terms and conditions of the MSA or a breach of the MSA is entitled to attorney fees and costs.

Roughly eight months later, Aaron filed a "Motion to Confirm De Facto Physical Custody Arrangement of Children." In it, he requested that the court modify the custody order to reflect that he had primary physical custody of the three oldest children, while Tracy had primary physical custody of the four youngest children. He further requested the court to modify the child-support obligations because of the actual physical custody timeshare as well as an increase in Tracy's monthly income from $0 to $6,018.67. Tracy opposed, arguing that their global settlement did not warrant modification, as it reflected what the parties contemplated and stipulated to in court, such that there were no changed circumstances. As to her income, which consists of alimony and interest on a promissory note paid by Aaron, Tracy argued that there was no change in circumstances because her income was part of the parties’ global settlement agreement, which Aaron knew of at the time they agreed on child support.

The district court denied Aaron's motion, concluding that there was no change in circumstances that warranted modifying custody, that Aaron's motion "seem[ed] to be an attempt to create a non-existent change of circumstances to be able to apply the new child support guidelines," and that Tracy's income had not changed. On Tracy's motion, the district court awarded her attorney fees and costs pursuant to the MSA and NRS 18.010(2)(b), finding that Tracy was the prevailing party and that Aaron brought his motion without reasonable grounds. Aaron appealed from both of the district court's orders, and we consolidated his appeals for resolution.

DISCUSSION

The district court did not abuse its discretion when it denied, Aaron's motion to modify custody

Aaron argues that the district court abused its discretion by denying his motion to modify physical custody because Rivero v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009), does not require a party to show a change in circumstances before the court will determine the nature of the custody arrangement under Nevada law and modify the custody order accordingly. Rivero's framework, however, relies on the premise that two distinct tests apply for evaluating motions to modify a physical custody arrangement depending on whether the arrangement is joint or primary. While our caselaw in this area has been inconsistent, we now clarify that regardless of whether a movant requests to modify joint custody or primary physical custody, the test to evaluate such a motion is one and the same—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." Ellis v. Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007).

We first suggested that the test to modify joint physical custody may be different from the test to modify primary physical custody in Truax v. Truax, 110 Nev. 437, 874 P.2d 10 (1994). There, we stated that the test from Murphy v . Murphy¹ —the controlling custody-modification test at that time—applied only to primary physical custody arrangements because the Legislature had enacted NRS 125.510(2) after we decided Murphy. Truax , 110 Nev. at 438-39, 874 P.2d at 11. Because NRS 125.510(2) then provided that a court may modify a joint physical custody arrangement when the movant shows it is in the child's best interest to do so, we concluded that a party need not show a change in circumstances to modify a joint physical custody arrangement. Id. (citing 1981 Nev. Stat., ch. 148, at 283-84); see also Hopper v. Hopper, 113 Nev. 1138, 1142 n. 2, 946 P.2d 171, 174 n.2 (1997) (recognizing that Truax "explained that the Murphy change of circumstances criterion would not apply to the modification of joint physical custody orders"), overruled in part on other grounds by Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004).

Even when Truax was decided, however, the child's best interest was the sole factor for a court to consider in determining physical custody regardless of whether a party sought joint or primary custody. NRS 125.480, repealed by 2015 Nev. Stat., ch. 445, § 19, at 2591, and reenacted in substance in NRS 125C.0035 by 2015 Nev. Stat., ch. 445, § 8, at 2583-85. And as we subsequently explained, Truax's statement that a joint physical custody arrangement may be modified if the movant shows that it is in the child's best interest "did not mean that we abandoned the doctrine of res adjudicata in child custody matters and that persons dissatisfied with custody decrees can file immediate, repetitive, serial motions until the right circumstances or the right judge allows them to achieve a different result, based on essentially the same facts." Mosley v. Figliuzzi, 113 Nev. 51, 58, 930 P.2d 1110, 1114 (1997) (emphasis omitted), overruled in part by Castle , 120 Nev. at 105 n.20, 86 P.3d at 1047 n.20. In that regard, we observed that "[i]t is rather obvious that when a judge makes a decision on child custody, such a decision should not be subject to modification if substantially the same set of circumstances that were present at the time the decision was made remains in effect." Id. at 58, 930 P.2d at 1115.

Consistent with that observation, we later explained in the context of reviewing an order granting a motion to modify primary physical custody that requiring the movant to show a substantial change in circumstances affecting the welfare of the child "serves the important purpose of guaranteeing stability unless circumstances have changed to such an extent that a modification is appropriate." Ellis, 123 Nev. at 151, 161 P.3d at 243. Because custodial stability is important for children regardless of the custodial designation, and res judicata principles are equally applicable in all child custody matters, we perceive no basis, statutory or otherwise, to maintain separate tests for evaluating a motion to modify a child-custody arrangement. Accordingly, consistent with Ellis, we hold that a court may modify a joint or primary physical custody arrangement only when "(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."² Id. at 150, 161 P.3d at 242.

Applying that analysis here, we discern no abuse of discretion in the district court's conclusion that there was no change in circumstances that warranted modifying the child-custody arrangement, as Aaron did not allege, much less show, a substantial change in circumstances affecting the welfare of the children in the short time since the arrangement was agreed upon. See Rivero, 125 Nev. at 428, 216 P.3d at 226 (reviewing a district court's custody determinations for an abuse of discretion). As the district court stated after reviewing the timeshare schedule and the parties’ evidence and arguments, "nothing was...