Shahrokhi v. Eighth Judicial District Court of State, 110619 NVCA, 79336-COA

Docket Nº:79336-COA
Opinion Judge:GIBBONS C.J.
Party Name:ALI SHAHROKHI, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE MATHEW HARTER, DISTRICT JUDGE, Respondents, and KIZZY BURROW, Real Party in Interest.
Judge Panel:Bulla J. TAO, J., dissenting: Hon. Mathew Harter, District Judge
Case Date:November 06, 2019
Court:Court of Appeals of Nevada
 
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ALI SHAHROKHI, Petitioner,

v.

THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE MATHEW HARTER, DISTRICT JUDGE, Respondents,

and

KIZZY BURROW, Real Party in Interest.

No. 79336-COA

Court of Appeals of Nevada

November 6, 2019

UNPUBLISHED OPINION

ORDER GRANTING PETITION FOR WRIT OF MANDAMUS IN PART AND DENYING PETITION IN PART

GIBBONS C.J.

This original, emergency petition for a writ of mandamus challenges July 16 and August 6, 2019, district court orders in a child custody matter that, respectively, impose a no-contact restriction on petitioner Ali Shahrokhi and grant real party in interest Kizzy Burrow temporary sole legal and physical custody of the parties' minor child, allowing her to temporarily relocate with the child out of state. On August 14, 2019, we entered a partial stay of the district court's no-contact order to allow limited contact between Ali and the child, as the district court had not connected the no-contact restriction with any specific safety concern involving the child or with the child's best interest and apparently had entered the order without considering whether any lesser measures would sufficiently protect the parties. We also directed Kizzy to file an answer to the petition. Having considered the petition, Kizzy's timely filed answer, and Ali's reply thereto, we grant the petition in part and deny it in part.

Facts and procedural history

Ali and Kizzy never married and have one child together. They filed competing complaints for child custody in December 2018. In January 2019, in the context of a separate temporary protection proceeding, the parties stipulated to share custody of the child pending a final determination in the custody action. In March, the court ordered the parties to use Our Family Wizard (OFW) to communicate and altered the parties' shared custodial agreement so that each party could have weekend time with the child. Thereafter, Kizzy filed a motion for primary physical custody and to relocate to Oregon with the child, which motion Ali opposed. Although the original hearing on that motion was vacated, on June 28, 2019, the district court entered minutes addressing multiple motions that Ali had filed and stating that "ANY and ALL Motions filed until July 4, 2019 shall be scheduled on July 11, 2019 to be consolidated with the already pending hearings."

At the July 11 hearing, the district court brought up concerns arising from its review of Ali's OFW communications. The court noted that, in the communications, at least one of which had been filed just the day before, Ali demeaned Kizzy's boyfriend, indicated that he would have the boyfriend arrested, and stated that he knew Kizzy's address. No other evidence was admitted. Two orders resulted from the hearing: (1) a July 16 order restricting all communications between Ali and both Kizzy and the child, and (2) an August 6 order, in which the court made domestic violence findings based on the OFW communications, determined that it would be in the child's best interest to temporarily relocate to Oregon, granted Kizzy temporary sole legal and physical custody, and ordered AU to obtain a psychological evaluation addressing whether it was in the child's best interest to have contact with Ali. The order is not appealable, and Ali thus seeks writ relief. See NRS 34.170.

Discussion

A writ of mandamus will issue to compel the district court to comply with a legal duty or to control a manifest abuse of discretion. NRS 34.160; Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). Although we often will not entertain writ petitions challenging temporary orders, as those orders frequently involve on-going matters and are subject to periodic district court review, we may do so when compelling circumstances so require. See Aug. H. v. State, 105 Nev. 441, 443, 777 P.2d 901, 902 (1989) (recognizing that even temporary custody orders can "have far reaching consequences for both the parents and the children"); In re Vernor, 94 S.W.3d 201, 209-10 (Tex. App. 2002) ("[M]andamus is an appropriate remedy when a court abuses its discretion involving temporary orders in a suit affecting the parent-child relationship."). This is such a case.

Ali...

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