Sorensen v. Sorensen

• Decision Date: 30 December 2016
• Docket Number: No. 69854,69854
• Parties: DAVID SORENSEN, Appellant, v. CHRISTINA M. SORENSEN, Respondent.
• Court: Court of Appeals of Nevada

DAVID SORENSEN, Appellant, v. CHRISTINA M. SORENSEN, Respondent.

No. 69854

COURT OF APPEALS OF THE STATE OF NEVADA

December 30, 2016

ORDER OF AFFIRMANCE

This is an appeal from a district court order establishing child custody and granting relocation with the minor children. Second Judicial District Court, Washoe County; Bridget E. Robb, Judge.

Appellant David Sorensen and respondent Christina Sorensen were a married couple residing in Sparks, Nevada with their three minor children. In December, 2014, David, Christina, and their three children visited extended family in Texas to celebrate the holidays. After vacationing in Texas for several weeks, David returned to their home in Nevada with the expectation that Christina and the children would join him the following week. Several days later, Christina called David and informed him that she was separating from him, and that she and the children would remain in Texas. Christina subsequently enrolled the children in school in Texas.

Shortly thereafter, David commenced divorce proceedings against Christina in Washoe County. After an initial evidentiary hearing, the district court granted Christina temporary primary physical custody and allowed Christina to remain in Texas with the children until a full evidentiary hearing could be held. After the second evidentiary hearing, the district court awarded joint legal custody to both parties and primary physical custody of the children to Christina, and granted Christina's request to relocate with the children to Texas.¹

On appeal, David challenges the district court's final order on the custody and relocation issues, asserting that the court erred by: (1) finding that Christina actually relied on inaccurate legal advice from a Texas domestic relations attorney when the court was determining whether she committed an act of abduction; (2) finding that Christina did not violate David's joint legal custody rights, and that David instead violated Christina's joint legal custody rights; and (3) considering post-relocation facts in the course of determining the parties' child custodyrights and ascertaining whether the relocation was permissible.² We conclude that none of these contentions merit reversal, and therefore affirm the district court's order.³

The District Court's Finding That Christina Actually Relied Upon the Advice of Counsel Was Supported by Substantial Evidence

A district court has "broad discretionary powers to determine child custody matters" such that this court "will not disturb the district court's custody determinations absent a clear abuse of discretion." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007) (footnote omitted) (citing Rico v. Rodriguez, 121 Nev. 695, 701, 120 P.3d 812, 816 (2005)); see also Davis v. Davis, 114 Nev. 1461, 1465-68, 970 P.2d 1084, 1087-88 (1998) (applying the clear abuse of discretion standard to a relocation case). Although this standard requires "the district court [to] . . . reach[] its conclusions for the appropriate reasons[,]" its factual findings will not be set aside "if they are supported by substantial evidence, which is evidence that a reasonable person may accept as adequate to sustain a judgment." See id., 161 P.3d at 241-42 (footnotes omitted) (citing Rico, 121 Nev. at 701, 120 P.3d at 816; Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993); Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004)). "Moreover, in child custody matters, a presumption exists that the trial court properly exercised its discretion in deciding what constitutes a child's best interest." Primm v. Lopes, 109 Nev. 502, 504,853 P.2d 103, 104 (1993) (citing Culbertson v. Culbertson, 91 Nev. 230, 533 P.2d 768 (1975)).

David claims that this court should set aside the district court's factual finding that Christina relied upon her Texas counsel's legal advice, apparently for the purpose of undermining the district court's conclusion that Christina did not commit an act of abduction. See NRS 125.480(7) (2014) (creating a rebuttable presumption against awarding custody or unsupervised visitation to the perpetrator of an "abduction"); NRS 125C.240(1) (2015) (same). In particular, he argues that: (1) certain discrepancies between the Texas attorney's affidavit and Christina's testimony demonstrate that Christina "misrepresented the facts" that she supplied to the attorney, and (2) Christina's testimony establishes that she avoided telling him where the children were residing, not because she feared him, but simply because she wanted to establish residency in Texas. We disagree.

Notwithstanding any inconsistencies between Christina's testimony and her Texas attorney's affidavit, the district court was permitted to credit Christina's testimony that she informed the attorney that she was "fearful of [David,]" and that counsel had advised her not to inform David of her decision to remain in Texas with the children because "there was a safety issue[.]" See Ellis, 123 Nev. at 152, 161 P.3d at 244 (footnote omitted) (citing Castle v. Simmons, 120 Nev. 98, 103, 86 P.3d 1042, 1046 (2004)) (holding that an appellate court should "leave witness credibility determinations to the district court and . . . not reweigh credibility on appeal[,]" even when confronted with conflicting evidence).

Moreover, there was substantial evidence showing that Christina believed that it was lawful for her to continue to withhold her address from David because after she informed him of her decision to remain in Texas, he threatened her by stating that he was "going to hurt her [and] that [she was] going to pay[.]"⁴ Therefore, we will not disturb the district court's finding because it was supported by substantial evidence.⁵ See id. at 149, 161 P.3d at 241-42.

The District Court's Findings That Christina Did Not Violate David's Joint Legal Custody Rights and That David Instead Violated Christina's Rights Do Not Warrant Reversal

David contends that the district court erred in failing to conclude that Christina violated his joint legal custody rights by enrolling the children in school in Texas, and in finding that he violated Christina's legal custody rights by not telling her who was caring for the children while he was at work. We conclude that neither of these findings warrants reversal.

Even assuming that the district court erred in its conclusions relating to the parties' violations of their respective legal custody rights, there is no indication that this error affected the court's determination of the custody and relocation issues. First, David's assertion that Christinaintended to interfere with his custodial rights by enrolling the children in school in Texas without his knowledge or consent is an evidentiary matter properly left to the district court. Even if such conduct actually occurred and it violated his joint legal custody rights, substantial evidence supports the district court's conclusion that Christina did not intend to interfere with his custodial rights because she had relied on the advice of counsel. Specifically, Christina testified that her counsel advised her not to inform David of her decision to remain in Texas with the children because "there was a safety issue," and the attorney also advised her to enroll her children in their new schools in Texas. See Ellis, 123 Nev. at 152, 161 P.3d at 244 (footnote omitted) (citing Castle v. Simmons, 120 Nev. 98, 103, 86 P.3d 1042, 1046 (2004)) (holding that an appellate court should "leave witness credibility determinations to the district court and . . . not reweigh credibility on appeal").

Second, these findings relating to legal custody rights had no apparent impact on the custody and relocation rulings because they appear under the heading "General Findings" in the district court's final order and they are not mentioned in the district court's analysis of the NRS 125.480(4)⁶ best interest factors or the relocation considerationsannounced in Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991). Further, David does not identify any other essential determinations that were purportedly affected by the district court's alleged errors.⁷ Thus, David fails to establish that the district court committed "a clear abuse of discretion" meriting reversal. See Ellis, 123 Nev. at 149, 161 P.3d at 241 (footnote omitted) (citing Rico, 121 Nev. at 701, 120 P.3d at 816); see also Primm, 109 Nev. at 504, 853 P.2d at 104 ("[I]n child custody matters, a presumption exists that the trial court properly exercised its discretion in deciding what constitutes a child's best interest.").

The District Court Did Not Commit a Clear Abuse of Discretion by Considering Post-Relocation Facts

David avers that the district court erred by considering post-relocation facts on two occasions: (1) the district court temporarily permitted the children to stay in Texas "to avoid any potential disruption in the children's lives"; and (2) the district court's final order on the child custody and relocation issues "cit[ed] Christina's employment that sheobtained post-relocation as substantially improving her life." We conclude that David's claims are unpersuasive.

First, we reject David's argument that the district court should not have granted Christina temporary custody because David does not allege that the grant of temporary custody had any impact on the final order.⁸ Second, even if this court retroactively applied AB 263 or used its provisions as "persuasive support" for resolving this case as David suggests, consideration of Christina's post-relocation employment would not have been improper.⁹ Under section 15 of AB 263, "[i]f a parent with primary physical custody or joint physical custody relocates with a child in violation of NRS 200.359[,]" then "[t]he [district] court shall not consider any post-relocation facts or circumstances regarding the welfare of the child or the relocating parent[.]" See 2015 Nev. Stat., ch. 445, § 15, at 2589 (emphasis added) (...