Strom v. Keller

• Decision Date: 24 January 2022
• Docket Number: 82851-COA
• Citation: 502 P.3d 734 (Table)
• Parties: Carol Ann STROM, Appellant, v. Edward R. KELLER, Respondent.
• Court: Nevada Court of Appeals

502 P.3d 734 (Table)

Carol Ann STROM, Appellant,

v.Edward R. KELLER, Respondent.

No. 82851-COA

Court of Appeals of Nevada.

FILED JANUARY 24, 2022

The Hill Law Group

Benon Law Group Ltd.

ORDER OF AFFIRMANCE

Edward R. Keller and Carol never married and have one minor child together.¹ After Edward filed a motion to establish paternity in district court, the court entered a stipulation and order establishing Edward's paternity and granting Carol primary physical custody until the child turned six, at which time the parties would share joint physical custody. In the same year the child was to turn six, but before the child turned six, Edward filed a motion to modify custody seeking primary physical custody. At the subsequent evidentiary hearing, the parties jointly submitted the report from a psychological evaluation Carol had previously received which concluded that Carol had paranoid personality traits, among other things, and recommended that she participate in therapy to resolve these issues. Assuming that Carol would follow its orders, the district court granted the parties joint physical custody and ordered Carol to receive at least six months of therapy from a seasoned psychologist familiar with high conflict civil domestic matters. The court also required Carol to distribute half of the child's federal Supplemental Security Income (SSI) benefits to Edward because the parties would be jointly sharing physical custody.

Six months later, Edward filed pro se a motion to enforce and/or for contempt based on Carol's failure to participate in therapy or distribute the child's SSI benefits. In his prayer for relief, Edward asked the district court to award him primary physical custody. But because Carol had appealed the prior order, and the appeal was still pending, the district court merely stated it was inclined to grant an order to show cause for contempt on both of Edward's claims and to set an evidentiary hearing to determine custody modification. After Carol's appeal was resolved a year later, resulting in an affirmance of the order for joint physical custody,² Edward re-filed his pro se motion, again asking in his prayer for relief to modify custody and award him primary physical custody. This time, the court issued an order to show cause for contempt and set an evidentiary hearing for it and modification of physical custody.

At the evidentiary hearing, where each party was represented by counsel, the district court found that Carol knew she had received SSI benefits on behalf of her child, knew she was required to distribute one-half of those SSI benefits to Edward, and knew that she had not distributed those benefits. The district court also found that although Carol claimed to have completed the required six months of therapy, she had not submitted credible proof showing that she did so, nor that any of her therapy had been with a qualified psychologist as required. The court then (1) ordered Carol to pay Edward his share of the SSI benefits in the amount of $7,896, (2) sanctioned Carol $1,150 for her contempt in failing to distribute the SSI benefits and ordered that it be paid to Edward, and (3) ordered Carol to pay a portion of Edward's attorney fees in an amount to be determined upon Edward's submission of an affidavit of fees and costs accompanied by an analysis pursuant to Brunzell v. Golden Gate National Bank , 85 Nev. 345, 455 P.2d 31 (1969).

Also at the evidentiary hearing, the district court analyzed each of the statutorily required best interest custody factors and found modification was in the child's best interest. In so finding, the court included in its findings that Carol (1) failed to participate in her court-ordered therapy, thereby lessening her ability to be a safe and effective parent; and (2) took independent steps regarding the child's schooling, which also violated a previous court order, thereby displaying a lack of cooperation. The court then granted Edward primary physical custody. Carol now appeals both the custody and contempt orders.³

The district court did not change custody to punish Carol for her failure to comply with court orders

Carol argues the district court modified custody to punish her for not completing her court-ordered therapy, which, as she claims, is prohibited under Sims v. Sims, 109 Nev. 1146, 865 P.2d 328 (1993), and Lewis v. Lewis , 132 Nev. 453, 373 P.3d 878 (2016).

"This court reviews the district court's decisions regarding custody ... for an abuse of discretion." Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009). Although district courts have broad discretion in determining child custody, "the district court must have reached its conclusions for the appropriate reasons" and we "will not set aside district court's factual findings if they are supported by substantial evidence." Id.; Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007).

In modifying a joint physical child custody arrangement, a district court must consider whether there has been a substantial change in circumstances and if modifying custody is in the child's best interest. See Romano v. Romana, 138 Nev., Adv. Op. 1, ––– P.3d ––––, –––– (2022). Courts have broad discretion in determining what evidence they may consider when evaluating a child's best interest. Truax v. Truax, 110 Nev. 437, 438-39, 874 P.2d 10, 11 (1994) (noting NRS 125C.0035(4) is nonexhaustive); see also Rivero, 125 Nev. at 428, 216 P.3d at 226 (noting courts’ broad discretion in child custody matters). But courts cannot consider "failure to follow court orders ... as a factor in determining the child's best interest during a modification of custody" or it amounts to an abuse of discretion. Lewis v. Lewis , 132 Nev. 453, 459, 373 P.3d 878, 882 (2016). Thus, courts cannot modify custody to punish parents for their contempt. Sims v. Sims, 109 Nev. 1146, 1149, 865 P.2d 328, 330 (1993).

In Sims, the father moved for primary physical custody because the mother left the ten-year-old daughter at home alone. Id. at 1147, 865 P.2d at 329. In resolving the motion, the district court denied the request but ordered that the child not be left alone for even five minutes and be within sight of a responsible adult at all times. Id. The order also stated that if the child was left alone in the future, physical custody would change. Id. After the father learned that the mother left the daughter alone for several hours over a three-day period, he again sought primary physical custody, which the district court granted. Id. at 1147-48, 865 P.2d at 329-30.

On appeal, the Nevada Supreme Court held that "although the order signed by the district court judge recites that the change is in the best interests of the child, the entire thrust of the findings by the factfinder ... relates to the mother's disobedience of the court's prior order." Id. at 1149, 865 P.2d at 330. The supreme court further concluded that the order the mother violated was questionable at best and that "the mother's disobedience of the order was virtually the only factor given weight in the ... determination that custody should be changed." Id. The court then held that such a determination "does not comport with our best interests of the child standard." Id. The court further reasoned that if the district court truly considered leaving the child alone to be problematic, it would have changed custody immediately after the hearing rather than waiting six months to issue its decision. Id. at 1149, 865 P.2d at 331. In addition, the supreme court considered the district court's order as arbitrary because the father was not even raising the child—it was the father's elderly mother who was raising her. Id. The supreme court then reversed the district court's custody determination. Id. at 1150, 865 P.2d at 331.

In Lewis, the district court ordered the father to pay child support, tutoring costs, and medical insurance. 132 Nev. at 455-56, 373 P.3d at 879-80. The mother then filed both a motion to modify custody and to enforce the child support order. Id. at 456, 373 P.3d at 880. The court stated that modifying custody was "in the child's best interest based on [the father's] conduct over the past ten (10) months" without specifying what conduct. Id. at 458, 373 P.3d at 881 (internal quotation marks omitted). The court did, however, find that the father had not paid his child support, tutoring costs, or medical insurance. Id. And orally, the district court specifically noted that changing custody was in the child's best interest based largely on the father disobeying court orders. Id. at 459. 373 P.3d at 881-82.

On appeal, the supreme court noted that the district court "appeared to base its order modifying child custody, at least in part" on the fathers failure to comply with the court's order. Id. at 459, 373 P.3d at 882. This included a written finding and an oral pronouncement that modifying custody was in the child's best interest because of that failure to obey. Id. The supreme court then held that "[b]ecause [the father's] failure to follow court orders may not be considered as a factor in determining the child's best interest during a modification of custody, we hold that the district court abused its discretion." Id. But the supreme court also held that the district court failed to make specific factual findings regarding each of the statutorily listed factors. Id. at 460, 373 P.3d at 882. Consequently, "[b]ecause the district court abused its discretion by improperly considering [the father's] failure to comply with court orders and failing to enter specific factual findings as to each of the statutory best-interest-of-the-child factors," the court reversed the district court order. Id.

Here, Carol has failed to demonstrate that the district court impermissibly considered her noncompliance as a factor in modifying custody and thus abused its discretion. Although the district court repeatedly referred to Carol's failure to participate in court-ordered therapy in...