Truax v. Truax, 24176

Citation874 P.2d 10,110 Nev. 437
Decision Date19 May 1994
Docket NumberNo. 24176,24176
PartiesJohn Thomas TRUAX, Appellant, v. Rita TRUAX, Now Known as Rita Briley, Respondent.
CourtSupreme Court of Nevada
OPINION

PER CURIAM: 1

The litigants have been fighting over the custody of their three children for the past several years. This fight has been the stage for a myriad of allegations, formal charges, and official court battles. As of 1991, the parents were subject to a "shared" or joint physical custody order of the district court.

In December 1991, Rita petitioned the domestic relations referee to commission a court-appointed special advocate ("CASA") to investigate evidence of child abuse. Rita claimed that her son was being physically abused by John Thomas Truax's (Thomas) daughter from a prior marriage. A CASA was assigned and conducted an examination of all three children.

To the agreement of both parties, the referee held an evidentiary hearing to consider the CASA's evaluations and other expert testimony. At that hearing, three experts presented exhaustive testimony regarding their respective examinations of the "familial" relationship.

The referee found that the best interests of the children would be served by vesting Rita with primary physical custody and affording Thomas visitation rights. The referee agreed with the testimony and recommendations of the CASA; the joint custody order was working to the detriment of the children, and there was evidence that the litigant's son was being mistreated while at Thomas' home. After considering Thomas' objections, the district court adopted the referee's findings.

Thomas appeals, claiming that the child custody referee applied the wrong legal standard when considering a modification of joint custody. He also argues that the district court abused its discretion by adopting the referee's findings and recommendations. We disagree with both contentions and affirm the district court's order.

NRS 125.510(2) specifically describes when a joint custody arrangement may be revisited and modified by the court:

2. Any order for joint custody may be modified or terminated by the court upon the petition of one or both parents or on the court's own motion if it is shown that the best interest of the child requires the modification or termination. The court shall state in its decision the reasons for the order of modification or termination if either parent opposes it.

(Emphasis added.) Thomas disregards this language and mistakenly cites Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968), for the proposition that the court can only modify custody where circumstances are materially altered and a change would substantially enhance the children's welfare.

This argument fails for two reasons. First, Thomas did not preserve this argument for appeal. Failing to object in the district court level, we cannot consider the merits of Thomas' contentions. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983-84 (1981) (aside from general jurisdiction, issues not objected to at trial court are waived for appeal). Second, Murphy is inapplicable to the instant case. The decision was handed down in 1968, well before NRS 125.510(2) was enacted by the Nevada Legislature in 1981. See 1981 Nev.Stat., ch. 148 at 283-84. Moreover, Murphy only describes when a modification to a primary custody agreement is warranted. In view of these simple facts and the plain language of NRS 125.510(2), we conclude that the referee properly applied the best interests of the child standard in the instant case.

Thomas' second claim of error does not fare any better than his first. Consistent with Nevada statutes and pertinent case law...

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20 cases
  • Rivero v. Rivero
    • United States
    • Nevada Supreme Court
    • August 27, 2009
    ...had the burden to show that modifying the custody arrangement was in the child's best interest. NRS 125.510(2); Truax v. Truax, 110 Nev. 437, 438-39, 874 P.2d 10, 11 (1994). However, the district court did not make findings of fact supported by substantial evidence to support its determinat......
  • People v. Loomis
    • United States
    • New York County Court
    • March 20, 1997
    ...Jan. 19, 1995); McCoy v. State, 886 P.2d 252 (Wyo.1994); In re Marriage of Rosenfeld, 524 N.W.2d 212 (Iowa App.1994); Truax v. Truax, 110 Nev. 437, 874 P.2d 10 (1994); Sims v. Hornsby, 1992 WL 193682 (Ohio App. 12 Dist., Butler County, Aug. 10, 1992); Wiederholt v. Fischer, 169 Wis.2d 524, ......
  • Strom v. Keller
    • United States
    • Nevada Court of Appeals
    • January 24, 2022
    ...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 disc......
  • Sorensen v. Sorensen
    • United States
    • Nevada Court of Appeals
    • December 30, 2016
    ...order issued in a domestic relations case because the appellant had failed to present it to the district court); Truax v. Truax, 110 Nev. 437, 438-39, 874 P.2d 10, 11 (1994) (citing Old Aztec Mine, 97 Nev. at 52, 623 P.2d at 983-84) (same). Further, this argument would fail even if David ha......
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