Shahrokhi v. Burrow

• Decision Date: 12 May 2022
• Docket Number: 81978, No. 82245, No. 83726
• Citation: 509 P.3d 602 (Table)
• Parties: Ali SHAHROKHI, Appellant, v. Kizzy J. S. BURROW a/k/a Kizzy Burrow, Respondent. Ali Shahrokhi, Appellant, v. Kizzy Burrow, Respondent. Ali Shahrokhi, Appellant, v. Kizzy Burrow, Respondent.
• Court: Nevada Supreme Court

509 P.3d 602 (Table)

Ali SHAHROKHI, Appellant,

v.Kizzy J. S. BURROW a/k/a Kizzy Burrow, Respondent.

Ali Shahrokhi, Appellant,

v.Kizzy Burrow, Respondent.

Ali Shahrokhi, Appellant,

v.Kizzy Burrow, Respondent.

No. 81978

No. 82245

No. 83726

Supreme Court of Nevada.

FILED MAY 12, 2022

Ali Shahrokhi

Kizzy Burrow

ORDER OF AFFIRMANCE (DOCKET NOS. 81978, 82245, AND 83726) AND DISMISSING APPEAL IN PART (DOCKET NO. 83726)

Appellant Ali Shahrokhi and respondent Kizzy Burrow never married and have one minor child together. Sometime after their relationship ended, Kizzy obtained a temporary restraining order against Ali and the parties filed competing complaints for child custody. After an evidentiary hearing, the district court awarded Kizzy sole legal and physical custody of the minor child, permitted her to relocate with the minor child to Oregon, and awarded her attorney fees and costs. Ali now challenges these orders, and several others, on various grounds.

As a preliminary matter, Ali makes several constitutional arguments, all of which lack merit upon de novo review. See Jackson v. State, 128 Nev. 598, 603, 291 P.3d 1274, 1277 (2012) (holding that this court applies de novo review to constitutional issues). First, Ali's constitutional challenge to NRS 125C.0035 fails because he and Kizzy have equal fundamental rights to care for their child, leaving the best interest of the child as the sole consideration to decide custody. See Rico v. Rodriguez, 121 Nev. 695, 704, 120 P.3d 812, 818 (2005) (holding that "[i]n a custody dispute between two fit parents, the fundamental constitutional right to the care and custody of the children is equal"; therefore, "the dispute in such cases can be resolved best, if not solely, by applying the best interests of the child standard").

Ali also argues that the district court deprived him of his constitutional procedural due process rights by failing to provide him with adequate notice and an opportunity to be heard regarding certain motions. "Due process is satisfied by giving [the] parties ‘a meaningful opportunity to present their case.’ " J.D. Constr., Inc. v. IBEX Int'l Grp., 126 Nev. 366, 376, 240 P.3d 1033, 1040 (2010) (quoting Mathews v. Eldridge, 424 U.S. 319, 349 (1976) ); see also Callie v. Bowling, 123 Nev. 181, 183, 160 P.3d 878, 879 (2007) ("[P]rocedural due process ‘requires notice and an opportunity to be heard.’ " (quoting Maiola v. State, 120 Nev. 671, 675, 99 P.3d 227, 229 (2004) )). The record shows that Ali was served with the motions, which included information regarding any related hearings, and he either submitted a written opposition, appeared at the scheduled hearing, or failed to request a hearing pursuant to local rule. Therefore, Ali's due process claims fail because in all alleged instances, Ali was provided both "notice and an opportunity to be heard" with respect to the issues before the court.² Callie, 123 Nev. at 183, 160 P.3d at 879. We now turn to Ali's challenges to specific court orders.

Docket No. 81978

In Docket No. 81978, Ali challenges the denial of his request to disqualify the presiding judge, two district court orders finding he committed domestic violence, and the order granting Kizzy sole legal and physical custody and permitting her to relocate to Oregon.

Motion to disqualify

Ali challenges Chief Judge Linda Bell's denial of his motion to disqualify Judge Mathew Harter, arguing that Judge Harter displayed bias which would "cause a reasonable person to question the judge's impartiality." Towbin Dodge, LLC v. Eighth Judicial Dist. Court, 121 Nev. 251, 260, 112 P.3d 1063, 1069 (2005) ; see also NCJC Rule 2.11(A) ("A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned."). Most of Ali's arguments fail because they are based on rulings and official actions in the child custody proceedings,³ see Matter of Dunleavy , 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988) ("[R]ulings and actions of a judge during the course of official judicial proceedings do not establish legally cognizable grounds for disqualification."), none of which displayed "a deep-seated favoritism or antagonism that would make fair judgment impossible," Kirksey v. State, 112 Nev. 980, 1007, 923 P.2d 1102, 1119 (1996) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994) ). Nor do we agree that Ali's pending civil rights action against the judge in federal court required disqualification.⁴ See City of Las Vegas Downtown Redevelopment Agency v. Hecht, 113 Nev. 644, 649, 940 P.2d 134, 138 (1997) (holding that a party "should not be permitted to create a situation involving a judge and then claim that the judge" should be removed due to the events the party created). Because Ali failed to show that Judge Harter exhibited extreme bias that would "permit manipulation of the court and significantly impede the judicial process," which is required to overcome the presumption that a judge is personally unbiased, Millen v. Eighth Judicial Dist. Court, 122 Nev. 1245, 1254-55, 148 P.3d 694, 701 (2006) (quoting Hecht , 113 Nev. at 635-36, 940 P.2d at 128-29 ), we conclude that the chief judge did not abuse her discretion in refusing to disqualify Judge Harter, see Ivey, 129 Nev. at 162, 299 P.3d at 359 (reviewing the denial of a motion to disqualify for an abuse of discretion).

Domestic violence findings

Ali next challenges the district court's domestic violence findings on various grounds. We reject any argument the proceedings were criminal or in excess of the court's jurisdiction. While the district court's order refers to criminal law to define relevant terms, see, e.g., NRS 33.018 (defining acts which constitute domestic violence), it makes clear that the court's domestic violence findings were pursuant to NRS 125C.0035(5) to determine if that statute's best-interest presumption applied in this case.⁵ See NRS 125C.0035(5) (creating a rebuttable presumption that physical custody is not in the child's best interest where the district court has found that a parent committed "acts of domestic violence against the child, a parent of the child or any other person residing with the child"); NRS 3.223(1)(a) (providing that family courts have exclusive jurisdiction in any proceeding brought pursuant to NRS Chapter 125C); Landreth v. Malik, 127 Nev. 175, 186-88, 251 P.3d 163, 170-71 (2011) (concluding that family court judges "ha[ve] the same constitutional power and authority as any [other] district court judge" such that they have jurisdiction to resolve issues beyond those listed in NRS 3.223 ). And the record supports the district court's application of NRS 125C.0035(5) ’s best-interest rebuttable presumption, as it provides substantial evidence that Ali engaged in multiple acts of domestic violence against Kizzy, including threats to hit her and burn her clothing, harassing her, and intimating that he knows where she lives.⁶ Considering this evidence, which the district court deemed credible, combined with Ali's failure to meaningfully rebut the statutory presumption,⁷ we conclude that the district court did not abuse its discretion by applying NRS 125C.0035 ’s presumption to find that giving Ali physical custody would not be in the child's best interest. See Castle v. Simmons, 120 Nev. 98, 102-03, 86 P.3d 1042, 1045-46 (2004) (explaining that the district court analyzes NRS 125C.0035(5) ’s rebuttable presumption based on a totality of the evidence and further holding that "we will not reweigh the credibility of witnesses on appeal").

Custody and relocation

We next reject Ali's argument that the district court erred when it applied the factors set forth in Druckman v. Ruscitti, 130 Nev. 468, 473, 327 P.3d 511, 515 (2014), in granting Kizzy's relocation request. See Stacco v. Valley Hosp., 123 Nev. 526, 530, 170 P.3d 503, 505-06 (2007) (recognizing that this court reviews whether a district court applied the correct legal standard de novo). We disagree that the district court's stipulated order granting Kizzy temporary sole physical custody constituted an order awarding physical custody such that the district court had to apply the NRS 125C.007 relocation factors instead.⁸ See Druckman , 130 Nev. at 473, 327 P.3d at 514 (explaining that, in the absence of a court order awarding a parent physical custody, the predecessor statute to NRS 125C.006 does not apply).

Our review of the record also supports the district court's findings regarding the Druckman factors. The record shows that Kizzy demonstrated good-faith reasons for the move to Oregon, including her relationship with her fiancé and her desire to escape Ali's obsessive behavior. See id. at 473, 327 P.3d at 515 (requiring a parent to demonstrate a good faith basis for relocation before the district court may consider the motion); see also Jones v. Jones, 110 Nev. 1253, 1260-61, 885 P.2d 563, 568-69 (1994) (explaining that the best interest of the child must be considered in conjunction with the well-being of the custodial parent and recognizing that "[t]he custodial parents right to pursue another relationship is integrally connected to the health and well-being of the custodial parent"). And the record also supports the district court's detailed findings regarding the Schwartz⁹ factors, see Druckman, 130 Nev. at 473, 327 P.3d at 515, and the factors set forth in NRS 125C.0035. Because the district court's findings regarding the parties’ inability to cooperate to meet the child's needs; "which parent is more likely to allow the child to have ... a continuing relationship with the noncustodial parent"; the child's "physical, developmental and emotional needs"; and Ali's acts of domestic violence against Kizzy are supported by substantial evidence, we conclude that the district court's decision to award Kizzy sole physical custody was not an abuse of discretion.¹⁰ See NRS 125C.0035 ; see Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996) (reviewing a...