Snyder v. Walker
| Decision Date | 24 March 2023 |
| Docket Number | 85088-COA |
| Parties | MARY SNYDER, Appellant, v. MATTHEW WALKER, Respondent. |
| Court | Nevada Court of Appeals |
UNPUBLISHED OPINION
ORDER OF AFFIRMANCE
Mary Snyder appeals from a district court order denying her request to relocate and awarding primary physical custody to Matthew Walker. Eighth Judicial District Court, Family Division, Clark County; Michele Mercer, Judge.
Mary and Matthew were never married but have one minor child together, eight-year-old T.W.[1] While living together, Mary became pregnant with a second child, five-year-old T.W.2. Matthew was listed as the father on T.W.2's birth certificate.
Mary and Matthew lived together until October 2019, when Mary moved in with her current husband, Hal, who serves in the United States Air Force. In December 2019, Mary and Matthew entered an informal joint custody arrangement without court assistance. A year later, Mary and Hal got engaged, and approximately six months later, they learned that Hal would be transferred to an Air Force base in Maryland.
In July 2021, Mary and Hal got married in Ohio. When they returned from Ohio, Matthew filed a complaint for custody seeking joint legal and joint physical custody of both children. In August 2021, Mary filed an answer, counterclaim, and third-party complaint. In her counterclaim, Mary sought joint legal custody of T.W. and primary physical custody of T.W. for the purpose of relocation. In her third-party complaint, Mary identified another man as T.W.2's putative father, sought DNA testing to confirm her claim, and requested primary physical custody of T.W.2 and permission to relocate to Maryland.
After Mary filed a motion to establish paternity, the district court ordered DNA testing to determine T.W.2's parentage. Although Matthew took a paternity test and learned that he was not T.W.2's biological father, at the beginning of trial, Mary conceded she had no issue with the court treating Matthew as T.W.2's legal father because the man she believed was T.W.2's actual father had failed to take a paternity test or otherwise appear in the case.
In March 2022, at the district court's request, Mary filed a motion for primary physical custody, seeking permission to relocate with both children to Maryland. Matthew opposed Mary's motion and filed a countermotion for primary physical custody, seeking attorney fees and other relief. The district court held a trial to address the parties' dueling custody complaints and motions on April 4, April 5 April 19, and May 13, 2022.
In June 2022, the district court entered its findings of fact and conclusions of law along with a custody decree. The district court found that Mary had not met her burden under Nevada law to warrant relocation to Maryland, under either NRS 125C.007(1) (the threshold test) or NRS 125(1007(2) (the six relocation factors) and denied Mary's motion to relocate. In addition, the district court addressed custody considering each of the best interest factors contained in NRS 1250.0035(4), and awarded Matthew primary physical custody of both children. Finally, the district court made a preliminary ruling that Matthew "shall be awarded reasonable attorney fees pursuant to NRS 18.010 and [NRS] 125C.200." The court directed Matthew to file and serve redacted billing statements, gave Mary time to file and serve any objections, and stated that it would decide the amount of attorney fees thereafter. Mary timely appealed.
On appeal, Mary challenges the district court's determinations regarding relocation and custody, as well as its preliminary award of attorney fees. We address each of her arguments in turn.
The district court did not abuse its discretion in denying Mary's motion to relocate
Mary contends that the district court abused its discretion when it denied her motion to relocate. This court reviews a district court's relocation determination for an abuse of discretion. Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1227 (2004). We will not substitute our judgment for that of the district court. Id. To prevail on a relocation motion, the relocating parent "has the burden of proving that relocating with a child is in the best interest of the child." NRS 1250.007(3). First, the relocating parent must demonstrate to the court's satisfaction that:
NRS 125C.007(1). Only if the relocating parent satisfies all three parts of this "threshold test" must the district court consider "the six relocation factors" under NRS 1250.007(2). See Monahan v. Hogan, 138 Nev., Adv. Op. 7, 507 P.3d 588, 589-90 (Ct. App. 2022).
Mary only directly argues that the district court abused its discretion in analyzing two of the three threshold test factors-the "sensible, good faith reason" factor under NRS 125C.007(1)(a) and the "actual advantage" factor under NRS 125C.007(1)(c). But Mary had the burden of establishing all three threshold factors-including that the best interests of her children were served by the relocation under NRS 125C.007(1)(b). See Monahan, 138 Nev., Adv. Op. 7, 507 P.3d at 589-90. Further, under NRS 1250.007(2), the district court still had to be convinced that the relocation factors weighed in favor of her request to relocate.
In this case, the district court found that it was not in the children's best interests to relocate under NRS 125C.007(1)(b) and determined that the six relocation factors under NRS 1250.007(2) weighed against relocation. The district court's findings were supported by substantial evidence in the record, and we are not persuaded by Mary's vague and unsupported claims of judicial bias.[2] Even if the district court erred in analyzing two of the three threshold factors, Mary has not shown that such errors would establish bias, let alone require us to disregard the district court's extensive factual findings in this case.
Because Mary failed to meaningfully challenge the district court's findings under NRS 125C.007(1)(b), or at all under (2), and because the district court's findings under those subsections provided alternative grounds for the district court's decision, Mary cannot establish that the district court abused its discretion when it denied her request to relocate. See Hung v. Berhad, 138 Nev., Adv. Op. 50, 513 P.3d 1285, 1288 (Ct. App. 2022) ("[B]ecause [appellants] did not challenge each and every one of the district court's independent alternative grounds for [relief], we summarily affirm based on those unchallenged grounds."); see also Greenlaw v. United States, 554 U.S. 237, 243 (2008) ( ).
The district court did not abuse its discretion in awarding physical custody to Matthew
Next, Mary contends that the district court abused its discretion by finding it to be in the children's best interest to be placed in Matthew's primary care, which forced her to choose between her husband and her children. We review custody determinations made by the district court for abuse of discretion. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). In making a custody determination, the district court's sole consideration is the best interest of the child, NRS 125C.0035(1), and the court must consider the "best interest factors" set forth in NRS 125C.0035(4).
The district court's "order must tie the child's best interest, as informed by specific, relevant findings respecting the [best interest factors] and any other relevant factors, to the custody determination made." Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015) (emphasis added). Findings of fact are given deference and will not be set aside unless they are clearly erroneous or are not supported by substantial evidence. Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009).
Mary contends that the district court abused its discretion when it awarded Matthew primary physical custody "by ignoring extensive unrebutted evidence . . ., by making findings inconsistent with that unrebutted evidence, and by forcing Mary to choose between her husband and her children." Specifically, Mary takes issue with the district court's findings on the following best interest factors: (c), (d), (e), (f), (g), and (k) of NRS 125C.0035(4).
As to factor (c), which addresses the likelihood that each parent would foster a "continuing relationship" with the noncustodial parent, Mary contends that the district court ignored her unrebutted testimony that: (1) Matthew did not allow her to take the children during his custody time on several occasions, despite the fact that she was willing to give him extra time on request; (2) Matthew prevented her from speaking to the children when she was in Ohio for two weeks in 2020; and (3) Matthew "restricted her time" with the children for the first two months that she moved in with Hal in 2019. However, the district court did not find Mary's or Hal's testimony to be credible, and repeatedly indicated as much in its order. The district court was not obligated to believe all of Mary's assertions, regardless of whether Matthew addressed them in his own testimony. Ultimately, the court concluded-based on evidence presented by Matthew-that the factor favored Matthew...
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