Sims v. Sims
| Decision Date | 22 December 1993 |
| Docket Number | No. 23907,23907 |
| Citation | 109 Nev. 1146,865 P.2d 328 |
| Parties | Donni SIMS, Appellant, v. John SIMS, Respondent. |
| Court | Nevada Supreme Court |
Appellant Donni Sims and respondent John Sims were married in 1975. On June 27, 1981 their daughter Kristine was born. In 1990 the couple divorced, agreeing that they would share joint legal and physical custody of Kristine, with Donni having primary physical custody subject to John's having physical custody during school breaks and alternating holidays, as well as liberal visitation.
In March, 1991 John filed a motion with the district court requesting primary physical custody of his daughter. He alleged, among other things, that Donni left their daughter home alone. In August, 1991 the domestic relations referee filed her report recommending that custody remain with Donni. However, the referee found that Kristine was spending time alone after school for one or two hours per day on frequent occasions and that "a ten-year-old child is too young to be left alone without adult supervision." Therefore, the referee recommended an order that:
[A]n adult must be present with the minor child at all times, and the child is not to be left alone for even 5 minutes. In addition, the child is to be within vision range of the responsible adult at all times.
... The Referee further recommends that if the Referee finds in the future the child is still being left alone, the Referee will change physical custody to the father.
The district court adopted the referee's findings and recommendations and issued an order consistent therewith.
In February, 1992 John renewed his motion to change custody on the principal ground that in November, 1991 Donni had left her ill ten-year-old daughter at home alone for several hours over a two- or three-day period in violation of the court order. Donni conceded that her daughter had been unsupervised for three one-hour periods during her illness, although she had otherwise made arrangements for continual supervision. An evidentiary hearing was held in March, 1992. A counselor who had talked to the child testified as follows:
... What she explained to me, she was left home alone. She was sick, I believe, with the flu or wasn't feeling well. On three separate dates she was left by herself. She had a phone close by. She said she liked to lie on the pillows, and she just lay there and was instructed to telephone if there was any problem, that her mother was at work.
....
... She wasn't sure about the time specifically. Her mother said about an hour when I spoke separately with her. Christine [sic] wasn't sure at the time, but she didn't report it was at any great length. She didn't report any stress as a result of being left alone.
....
... No, she didn't have any particular reaction to having been left alone. She told me at one point that she kind of liked it, and she had said that in response to a direct question. In general, I asked if this was sometimes scary or had been scary because it was something that was new to her, and I thought it would be unfamiliar to her or if she was masking some other feelings about it, or having some reaction, and she said, no, it was okay. She really wasn't feeling well and wanted to be left alone.
....
... I understand there was a phone close by the bed. She wasn't expected to be leaving her bed because she was there resting. She was to be lying down. If anything came up or any change in the feelings, she was to call her mother, and her mother would immediately come home from work.
After the hearing the referee interviewed the child in chambers. The referee reported that the child said she had been left alone for substantial periods over a 3-day period and was "scared" when she heard a noise in the kitchen while alone. On August 27, 1992, the referee issued her report finding that the mother "flagrantly" violated the August, 1991 court order; that she couldn't be trusted to comply with future orders of the same nature; that it was particularly "reprehensible" that the child had been left alone while ill and recommended that the father "be awarded primary physical custody of the minor child." The district court again adopted the referee's findings and recommendations and issued the order recommended. As a result, in September, 1992, Kristine moved to Virginia with John. Donni appeals, contending that the district court abused its discretion. We agree and reverse the judgment and remand the case for a redetermination of child custody.
The trial court enjoys broad discretionary powers in determining questions of child custody. This court will not disturb the trial court's determinations absent a clear abuse of discretion. Primm v. Lopes, 109 Nev. 502, 853 P.2d 103, 104 (1993). However, this court must be satisfied that the court's determination was made for the appropriate reasons. In determining custody of a minor child, the sole consideration of the court is the best interest of the child. NRS 125.480. Based on...
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