Thomason v. Myers
| Decision Date | 14 September 2015 |
| Docket Number | No. 66291,66291 |
| Parties | TARA THOMASON, Appellant, v. STEPHEN MYERS, Respondent. |
| Court | Nevada Court of Appeals |
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
This is an appeal from a district court order granting a motion to modify child custody. Fourth Judicial District Court, Elko County; Steven Elliott, Judge.
Appellant Tara Thomason and Respondent Stephen Myers had three minor children in common when they mutually signed a Marital Separation Agreement which was filed with the district court as part of a Summary Decree of Divorce on June 21, 2007.
Pursuant to the Agreement, the parties agreed to share joint legal custody of the children but Tara would have primary physical custody subject to Stephen's visitation (or parenting time). Stephen was to have parenting time two (2) nights per week overnight, on his nights off work; three (3) weeks for vacation per year; and shared holidays. Stephen was also ordered to pay Tara $1,545.77 per month in child support, which represented 29% of his gross monthly income (pursuant to NRS 125B.070(1)(b)(3)) less $56.59 per month for his share of the children's health insurance premium. Notably, Stephen's child support was established in a separate child support case, but was modified by the decree to reflect the health insurance premium paid by Stephen.
On November 10, 2011, Stephen filed a Motion to Modify Custody seeking joint physical custody over the children, asserting thatjoint physical custody was in the children's best interest and that a substantial change in circumstances had occurred. In the Motion, Stephen argued that he had only agreed to give Tara primary physical custody because he did not want to put the children through the stress of a custody battle when they were already experiencing the difficulties of divorce. Stephen also argued that Tara exhibited erratic behavior around the children by, for example, telling them they could not go to friends' houses or the movies but then changing her mind at the last minute. He also contended that the children reported that they wanted to spend more time with Stephen, and that Tara only gave Stephen extra visitation when the children were ill.
In response to Stephen's Motion to Modify, Tara filed a Motion to Dismiss Stephen's Motion arguing there was no change in circumstances and, therefore, Stephen was not entitled to a hearing on his motion pursuant to Rooney v. Roomy, 109 Nev. 540, 853 P.2d 123 (1993).
The Motions were originally presented to District Judge Alvin Kacin. Judge Kacin denied Tara's Motion to Dismiss, granted a hearing on Stephen's Motion to Modify Custody, and also ordered the parties to attend mediation. Shortly thereafter, a Court Appointed Special Advocate (CASA) named Janell Anderson submitted two reports recommending joint custody. Judge Kacin then disqualified himself from the case, and the matter was transferred to Senior District Judge Steven Elliott. Judge Elliott conducted a two-day evidentiary hearing on April 23 and 24, 2014, after which he entered an Order Granting Plaintiffs Motion to Modify Custody dated August 11, 2014 in which he found that a substantial change in circumstances had occurred affecting the welfare of the childrenand that it was in the children's best interest to change the custody arrangement to joint physical custody. Tara appeals from this Order.
Tara contends that the district court must be reversed for four reasons: (1) the court erred in denying her Motion to Dismiss Stephen's Motion to Modify Custody despite acknowledging that there was no substantial change in circumstances; (2) the court erroneously disregarded the "substantial change in circumstances" test set forth in Ellis v. Carucci, appearing to suggest that the stipulated custody order was something other than final, contrary to Rennels v. Rennels; (3) the district court's decision to modify was not supported by substantial evidence and the facts do not meet the standard set forth by Ellis v. Carucci; and (4) the district court erred in granting attorney fees. Each of these will be discussed in turn.
First, Tara contends that the district court erred in denying her "Motion to Dismiss" Stephen's Motion to Modify Custody. As an initial observation, there is no such thing in the Nevada Rules of Civil Procedure as a motion to "dismiss" a motion filed by an opponent. An entire case may be "dismissed," but a mere motion may not be. A party may respond to a motion by filing an opposition to it explaining why it should not be granted, or by moving to strike it on the grounds that the original motion was procedurally improper. But here, Tara's motion sought to have Stephen's Motion "dismissed" not because of any alleged procedural irregularity, but rather because she disagreed with its substance and believed that Stephen's Motion should not be granted on its merits. Therefore, Tara's motion was not a motion to "dismiss" Stephen's Motion at all (because there is no such thing) or even, alternatively, a motion to strike Stephen's Motion, but rather a mere substantive opposition toStephen's Motion. Accordingly, the district court could not have "granted" Tara's motion because there was no proper relief for it to grant.
Therefore, we construe Tara's "Motion to Dismiss" as a substantive opposition to Stephen's Motion. Properly construed this way, Tara essentially argues that the district court erred in granting an evidentiary hearing to explore Stephen's Motion to Modify Custody when Stephen failed to establish a prima facie case for modification under Rooney v. Rooney, 109 Nev. 540, 853 P.2d 123 (1993). But in Rooney, the Nevada Supreme Court held that the "district court has the discretion to deny a motion to modify custody without holding a hearing unless the moving party demonstrates 'adequate cause' for holding a hearing." 109 Nev. at 542, 853 P.2d at 124 (emphasis added). In other words, in response to a motion seeking to modify custody, a district court must grant an evidentiary hearing if the moving party demonstrates a prima facie case of some "substantial change in circumstances," but may grant an evidentiary hearing even if the moving party did not do so. Thus, even though Judge Kacin originally found that Stephen had not set forth prima facie evidence of a substantial change in circumstances, he committed no error in ordering that an evidentiary hearing be held nonetheless.
Tara next argues that Judge Kacin erred by disregarding the "substantial change in circumstances" prong of Ellis in its original Order denying Tara's "Motion to Dismiss" and ordering an evidentiary hearing on Stephen's Motion to Modify Custody. In his written Order, Judge Kacin observed that Ellis v. Carucci, 123 Nev. 145, 161 P.3d 239 (2007) stands for the proposition that in order to change custody from a primary custody arrangement to a joint one, the non-custodial parent must show there has been a substantial change in circumstances affecting the welfareof the child and that it is in the child's best interest to change custody. However, Judge Kacin concluded that the Nevada Supreme Court left open the possibility that if the parties originally stipulated to the custody arrangement, the question has not been "litigated" and, thus, Ellis does not apply to a stipulated custody order (as opposed to one entered following a contested trial) and on a later motion to modify, the court need only determine whether a modification is in the child's best interest, not whether there has also been a substantial change in circumstances affecting the child's welfare.
Judge Kacin's Order addresses a question that has not yet been decided by the Nevada Supreme Court in a published opinion. However, we need not reach the merits of that question in this appeal because his original Order was rendered moot when, following a two-day evidentiary hearing during which both parties presented evidence, Senior Judge Elliott found that a "substantial change in circumstances" had indeed occurred. Thus, whether or not Judge Kacin applied Ellis correctly when considering whether Stephen originally established a prima facie case in his moving papers, Senior Judge Elliot applied Ellis correctly to the evidence he heard during the two-day hearing. Because Judge Kacin's interlocutory order setting an evidentiary hearing on Stephen's Motion was supplanted by Senior Judge Elliott's final order granting Stephen's Motion, and only a "final" order can be the basis of an appeal. Therefore, the question of whether Judge Kacin's interpretation of Ellis was correct is not properly before us.
Tara's third argument is that the district court's decision to modify was not supported by substantial evidence and the facts do not meet the standard set forth by Ellis. Courts will generally uphold theparties' custody agreements if "they are not unconscionable, illegal, or in violation of public policy." Rivero v. Rivero, 125 Nev. 410, 429, 216 P.3d 213, 227 (2009). However, once the parties ask the court to modify that agreement, the court must apply Nevada law. Bluestein v. Bluestein, 131 Nev. ___, ___, 345 P.3d 1044, 1047. "A court decision regarding visitation is a 'custody determination'." Wallace v. Wallace, 112 Nev. 1015, 1019, 922...
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