Solinger v. Solinger
| Decision Date | 20 April 2023 |
| Docket Number | 84832-COA |
| Parties | ADAM MICHAEL SOLINGER, Appellant, v. CHALESE MARIE SOLINGER, Respondent. |
| Court | Nevada Court of Appeals |
UNPUBLISHED OPINION
ORDER AFFIRMING IN PART, REVERSING IN PART, PART AND REMANDING
Gibbons C.J.
Adam Michael Solinger appeals from a decree of divorce. Eighth Judicial District Court, Family Division, Clark County; Mary D. Perry, Judge.
Adam and Chalese Marie Solinger were married in May 2012.[1]They had two minor children, M.S., age five when trial began, and M.S., age three when trial began in 2021. Adam filed a complaint for divorce in January 2019. In his complaint, he sought an equal division of the property acquired during the marriage, joint legal custody of the children, primary physical custody of the children, child support, and equal division of all the children's medical expenses.
In February 2019, Chalese filed an answer and counterclaim. In her counterclaim, she sought joint legal and physical custody of the children. She also asked that Adam provide health insurance for the children, but that all unreimbursed health care expenses be split equally between the parties. Finally she requested that the district court fairly and equitably divide the community property and assets between the parties and that she be awarded spousal support along with $5,000 in preliminary attorney fees.
Throughout the nearly three-and-a-half years that it took for the parties to get divorced, both parties filed a variety of motions seeking spousal support, temporary primary physical custody, child support, attorney fees, and trial continuations. Before trial began, the district court ordered that a neutral custody evaluation be conducted, and that a report of the evaluator's findings be prepared for the parties and the court's review. However, Chalese disagreed with portions of the report, so she retained a rebuttal expert who prepared his own report. Trial was held over five nonconsecutive days beginning in May 2021 and ending in March 2022. During trial, eight witnesses testified, including the custody evaluator, rebuttal expert a private investigator hired by Adam to surveil Chalese, Adam's father, Adam's girlfriend, Adam, Chalese's boyfriend (Josh), and Chalese.
After trial concluded, but before the district court entered the decree of divorce, Chalese's boyfriend began acting irrationally at the residence he shared with Chalese while she had parenting time with the children. He broke a television and threatened to prevent Chalese from leaving the residence. She was able to take the children and leave. Once she was outside the residence, she called the police. The boyfriend was arrested for domestic violence, and Chalese obtained a temporary protection order. Chalese filed a motion asking for the opportunity to present testimony about the domestic violence incident, which Adam did not oppose. During a hearing held following her motion, Chalese testified that she would be willing to rekindle a relationship with her boyfriend if she knew that the children would be safe around him. The district court took this testimony and the incident into consideration when deciding child custody.
The court entered a decree of divorce in May 2022, ordering the following: joint legal custody; joint physical custody; a week-on/week-off parenting time schedule; for Adam to pay Chalese child support; for Adam to pay all of the children's health insurance costs and also pay 65 percent of the children's other medical, educational, and extracurricular costs; a division of the assets and debts of the parties; and an award of attorney fees to Chalese.
On appeal, Adam argues that the district court abused its discretion or erred by: (1) awarding joint physical custody; (2) miscalculating child support; (3) ordering Adam to pay 65 percent of the children's medical, educational, and extracurricular costs; (4) requiring Adam to use his separate property to pay Chalese's attorney fees; (5) awarding Chalese the survivorship interest in Adam's possible future Nevada state pension (PERS); (6) awarding Chalese all of her attorney fees and awarding her more than $1,500 in expert witness fees; and (7) ordering the law firm representing Adam to distribute Adam's funds in its client trust account to one of Chalese's prior attorneys. Adam also argues that this court should require a different judge to handle this case if remanded.
We agree that the district court abused its discretion when it calculated child support; ordered Adam to pay 65 percent of the children's medical, educational, and extracurricular costs; awarded Chalese a survivorship interest in Adam's PERS; and-awarded more than $1,500 in expert fees. We also necessarily vacate the award of attorney fees. But we disagree with Adam's remaining arguments. We address each argument in turn.
The district court acted within its discretion when it awarded joint physical custody
Adam argues that the district court made sweeping findings that are not supported by the record, erroneously found that the neutral expert's custody evaluation report was incomplete, and failed to consider Chalese's boyfriend's behavior when it applied the best interest of the child factors in NRS 125C.0035(4). Chalese responds that the district court did not abuse its discretion when it awarded joint physical custody.
Child custody decisions are reviewed for an abuse of discretion. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). A district court abuses its discretion when its decision is clearly erroneous. See Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018). Additionally, we will not set aside child custody determinations if they are supported by substantial evidence. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). Evidence is substantial if a reasonable person would accept it as adequate to sustain a judgment. Id. We will not disturb a district court's findings of fact if they are supported by substantial evidence. Bedore v. Familian, 122 Nev. 5, 9-10, 125 P.3d 1168, 1171 (2006).
First, Adam's main argument appears to be that the district court was prejudiced against him, and therefore made sweeping findings that are not supported by the record. We disagree. The decree of divorce reveals that the court fully considered the testimony and other evidence in the record. Thus, most of the arguments raised by Adam challenge the district court's credibility determinations and weighing of evidence. Additionally, although Adam states that the court failed to consider various actions by Chalese, a careful review of the decree reveals that the court either found her account to be more credible than Adam's or found that Chalese had done nothing wrong. Appellate courts do not determine the credibility of witnesses on appeal or re weigh the evidence. Castle v. Simmons, 120 Nev. 98, 103, 86 P.3d 1042, 1046 (2004). Accordingly, we conclude that there is sufficient evidence in the record to support the district court's findings of fact.[2]
Second, Adam argues that the district court erroneously found that the expert's report was incomplete because it did not address gatekeeping. But Adam failed to provide a copy of the expert's report for this court to review. See NRAP 30(b)(3). This court presumes that the missing portion of the record supports the district court's ruling. See Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007). Therefore, we conclude that the district court did not abuse its discretion when it found that the expert's report was incomplete.
Adam also argues that the district court erred in finding that Chalese's rebuttal expert claimed that the initial expert failed to cover numerous subjects and facts. Adam mainly relies on the rebuttal expert's report to support his argument; however, Adam failed to provide the report on appeal. See NRAP 30(b)(3). Thus, we presume that the report supports the district court's findings. See Cuzze, 123 Nev. at 603, 172 P.3d at 135. Additionally, a careful review reveals that the expert's testimony is properly reflected in the decree of divorce. Therefore, we conclude that the district court did not abuse its discretion.
Further, Adam is correct that the district court did not consider Chalese's boyfriend's abusive conduct when applying NRS 125C.0035(4)(k). That section of the statute, however, requires the court to look at the parents or another person seeking custody of the child. Chalese's boyfriend is not the parent nor was he seeking custody of the children. Therefore, the district court did not err in its analysis and application of NRS 125C.0035(4)(k).[3]
Adam also argues that the district court abused its discretion by not extending the trial to hear evidence about the television incident that led to the arrest of Chalese's boyfriend for domestic violence. The record reveals that the district court held a hearing about the incident, Chalese's response to the incident, and Adam's concerns. The district court found that Chalese acted appropriately and removed the children from the situation and then called the police. Adam fails to cite any authority that required the district court to hear additional post-trial testimony. Therefore, we need not further consider his argument. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) ().
Below the district court applied the best interest of the child factors and found that seven factors were neutral, one factor favored Adam, and four factors favored Chalese. Even if the domestic violence factor was considered neutral or in...
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