Wiese v. Granata, 25518
| Decision Date | 22 December 1994 |
| Docket Number | No. 25518,25518 |
| Parties | Walter Scott WIESE, Appellant, v. Vicki Lynn GRANATA, Respondent. |
| Court | Nevada Supreme Court |
Appellant Walter Scott Wiese (Wiese) and respondent Vicki Lynn Granata (Granata) were divorced in February 1987, and custody of the parties' daughter, Autumn, was awarded to Wiese. Autumn has remained in her father's custody ever since.
On December 30, 1993, Granata filed an application for a temporary order for protection against domestic violence from Wiese. This application did not request a change in the custody of Autumn. The district court issued the requested temporary order for protection that same day. The district court's order did not purport to alter child custody in any way. 1
On January 28, 1994, Wiese was served with a motion brought by Granata to extend the temporary order of protection and modify it with respect to Granata's visitation rights with Autumn. The motion did not request a change of custody. Accompanying this motion was a notice of hearing and an order to show cause. The notice informed Wiese that on April 8, 1994, the district court would consider whether to extend, modify or dissolve the temporary order for protection and would determine whether Wiese had violated the temporary order for protection. The notice did not require Wiese to appear (however, the order to show cause attached to the notice did order Wiese to appear).
The district court held the hearing on April 8, 1994, as scheduled. Wiese did not, however, appear at the hearing, apparently because his counsel had not told him he needed to appear. We do not know what transpired at this hearing because neither the transcript nor the minutes from the hearing are part of the record on appeal. What we do know is that following the hearing, on April 13, 1994, the district court issued an order granting Granata physical custody of Autumn. Wiese requested an emergency stay of the order. Following a thirty-minute hearing regarding this request, the district court took the matter under consideration and on April 18, 1994, denied Wiese's request for an emergency stay and reaffirmed its April 13, 1994 order giving custody of Autumn to Granata.
Wiese appealed and moved this court for an emergency stay of the district court's orders changing custody. In an April 28, 1994 order, this court stayed those portions of the district court's orders which affected the custody rights of the parties. We now vacate those portions of the district court's April 13, and 18, 1994 orders which affect the custody rights of the parties because (1) Wiese did not receive notice that the issue of child custody was before the district court; (2) Wiese did not receive a full and fair hearing; and (3) the district court did not consider or apply the proper standard for modifying custody before it changed custody of Autumn to Granata.
First, due process requires that notice be given before a party's substantial rights are affected. The notice of hearing Wiese received does not mention or even hint that child custody is at issue. Dagher v. Dagher, 103 Nev. 26, 731 P.2d 1329 (1987), is exactly on point. In that case, the district court gave custody of the parties' minor child to the father following a hearing on a motion for "modification of divorce" which the mother failed to attend. Id. at 27, 731 P.2d at 1329. The motion for modification of divorce did not seek a permanent change of physical custody. Thus, as with Wiese in this case, the mother was never apprised that the hearing might involve a change of custody. Id. at 27, 731 P.2d at 1329. This court reversed the district court's order changing custody, calling it "precipitous" and holding that "the court erred in changing custody without prior specific notice and as a sanction for perceived maternal misconduct." Id. at 28, 731 P.2d at 1330 (footnote omitted).
The district court's orders in this case were also precipitous, and, as in Dagher, appear to have been motivated by Wiese's failure to appear at the April 8, 1994 hearing. As we noted in Dagher, "a court may not use changes of custody as a sword to punish parental misconduct." Id. at 28 n. 3, 731 P.2d at 1330 n. 3; see also Moser v. Moser, 108 Nev. 572, 576, 836 P.2d 63, 66 (1992).
Granata argues that Wiese should have known the April 8, 1994...
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