Blanco v. Blanco, 129 Nev. Adv. Op. 77 (Oct. 31, 2013)

Before the Court en banc. Opinion by Justice Hardesty.
In this appeal from a divorce decree entered by default in the district court, the Court considered the propriety of case-concluding discovery sanctions for failure to respond to discovery requests when the case involves child custody and child support claims. The Court concluded that case-terminating discovery sanctions were impermissible in cases involving child custody and child support because the sole consideration of the court in such matters is the child’s best interest; other sanctions, such as contempt, monetary sanctions, and attorney’s fees, are still available in such cases. The Court also concluded that case-concluding discovery sanctions were permissible in the claims for property division, spousal support, and attorneys’ fees, but that any such sanction must comply with the procedural due process requirements of Young v. Johnny Ribeiro Bldg, Inc. and Foster v. Dingwall. Thus, a trial court must determine whether the discovery sanction is warranted and whether the sanction relates to the claims at issue in the violated discovery order, and then must support the sanction with an explanation of the pertinent factors guiding such determination. Although the factual determinations regarding property division often necessitate an evidentiary hearing, a trial court may render a decision on spousal support and attorneys’ fees without such a hearing. Because the Court held that case-concluding sanctions were impermissible in child custody and support matters, and because the district court did not conduct the appropriate Young/Foster analysis, the entry of a divorce decree by default was improper. Reversed and remanded for further proceedings. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)

St. Mary v. Damon, 129 Nev. Adv. Op. 68 (Oct. 3, 2013)

Before the Court en banc. Opinion by Justice Saitta.
In this opinion, the Court considered issues relating to the custodial rights over a minor child born to two women who were formerly romantic partners. St. Mary gave birth to a child through in vitro fertilization using Damon’s egg and an anonymous donor’s sperm, and the child’s birth certificate originally listed only St. Mary as the mother; in 2009 Damon obtained an order establishing her maternity and adding her name to the child’s birth certificate. The couple also entered into a co-parenting agreement to share parental responsibilities, participate in child-rearing decisions, and pay for expenses. After St. Mary and Damon split, a dispute arose over St. Mary’s right to custody, visitation and child support. Damon contended that due to her biological connection, she was entitled to sole custody of the child, and in support of this contention, submitted the 2009 order. The Court held that the district court erred in using the 2009 order to conclude that St. Mary was a surrogate lacking any right to parent the child without giving St. Mary an evidentiary hearing. The Court reasoned that the Nevada Parentage Act permits a child to have two legal mothers, and establishes (through both the maternity and paternity provisions) various ways to determine a child’s legal mother. The Court remanded the case with instructions to the district court to conduct an evidentiary hearing on St. Mary’s legal right to parent the child. The Court further held that the co-parenting agreement was not void as unlawful or against public policy, indeed the Court stated that barring the enforceability of a co-parenting agreement simply because the parents were both of the same gender was contrary to the public policy of promoting a child’s best interest with the support of two parents. The Court held that the district court must consider the co-parenting agreement in determining custody should it determine after remand that both St. Mary and Damon are the child’s legal parents. Reversed and remanded for further proceedings. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson.)

Bradford v. Eighth Jud. Dist. Ct., 129 Nev. Adv. Op. 60 (Aug. 29, 2013)

Before Chief Justice Pickering and Justices Hardesty and Saitta. Opinion by Justice Hardesty.
In this original petition for a writ of mandamus or prohibition challenging the district court’s order dismissing a divorce complaint, the Court considered whether Petitioner’s failure to appeal the dismissal order precluded writ relief in the matter. Petitioner and Real Party in Interest were married in 2008; a newly elected judge who had taken his oath of office but was not authorized to take office until two weeks later performed the marriage ceremony. Three years later, Petitioner filed for divorce from the Real Party in Interest, seeking custody of the couple’s minor child. At the divorce hearing, the district court sua sponte raised the issue of whether the newly elected judge had authority to solemnize the marriage. The court concluded the judge did not have such authority and thus ruled the parties were not legally married, dismissing the divorce complaint as moot. Although proceedings to determine custody of the parties’ child continued in a separate custody case after the district court entered the dismissal order, Petitioner did not appeal the dismissal order and failed to seek any other relief until a year later, when she sought writ relief from the Nevada Supreme Court. The Nevada Supreme Court, in noting the long-held rule that the right to appeal is an adequate legal remedy precluding consideration of a writ appeal, rejected Petitioner’s argument that the dismissal order was not appealable as a valid, final judgment because the district court had reached an erroneous legal conclusion. Although the Nevada Supreme Court noted that the district court’s conclusion may have been in error, it affirmed that an incorrect legal conclusion does not render a judgment invalid or void, and so the district court’s dismissal order was a valid, final judgment. Petitioner had an adequate legal remedy by appealing the dismissal order. Because she failed to do so, writ relief was no longer available to her. Writ denied. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)

Leventhal v. Black & LoBello, 129 Nev. Adv. Op. 50 (July 11, 2013)

Before Chief Justice Pickering, and Justices Hardesty and Saitta. Opinion by Chief Justice Pickering.
In this appeal from a district court order adjudicating a law firm’s charging lien for attorneys’ fees against its former client under pre-2013 NRS 18.015, the Court considered whether the lien should have been adjudicated when the law firm did not serve the statutory notices required to perfect its lien until eight months after the case was over and property distributed. The Court held that to assert a charging lien against the client’s claim or recovery under NRS 18.015, four requirements must be met. First, the attorney must have presented a claim for affirmative relief, generally recovery of money or property, on behalf of the client. Second, the attorney must perfect the lien by serving a notice in writing by certified mail, return receipt requested, to the client and upon the opposing party whom the client has a cause of action and stating the attorney’s interest in the cause of action. Third, the statute sets a timing requirement that once perfected the lien attaches to a verdict, judgment or decree entered and to any money or property which is recovered on account of the suit or other action, from the time of service of the notices required by this section. Fourth, the attorney must timely file and properly serve a motion to adjudicate the lien. Here, because LoBello failed to perfect its lien until eight months after a stipulated divorce decree was entered and the property was distributed – well after the time a lien could have attached to any of the property governed by that settlement – and because the settlement of a later custody dispute did not modify the property distribution in the divorce decree or otherwise bring that property back into dispute, there was no property to which LoBello’ s lien could attach. Since there were no “tangible fruits” upon which the lien could attach at the time the lien was served, the district court should not have adjudicated the lien under NRS 18.015(4). Reversed. (Lisa M. Wiltshire Alstead, Associate in the Reno office of McDonald Carano Wilson).

Falconi v. Secretary of State, 129 Nev. Adv. Op. 28 (April 25, 2013)

Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Cherry.
In this extraordinary writ proceeding, the Court analyzed whether a co-parent with joint custody of a child, Falconi, may seek the disclosure of the fictitious address of the other co-parent, Farrar, which was obtained from the Secretary of State based on evidence of domestic violence by Falconi. The Court determined that a TRO issued to Farrar following a physical altercation at the parties’ shared residence was sufficient to support the issuance of the fictitious address to Farrar under NRS 217.462. The Secretary of State was obligated to issue the fictitious address based on the TRO and was neither required nor authorized by statute to inquire into whether the TRO was issued based on a finding of domestic violence or a finding or a potential threat of violence. As for Falconi’s request for Farrar’s confidential address, the Court adopted the reasoning of Sacharow v. Sacharow, 826 A.2d 710, 714 (N.J. 2003), which balanced the competing interests of one parent’s need for confidentiality against the need for the other parent to know where the child was living. In Sacharow, the court placed the burden on the parent with the confidential address to establish that he or she was the victim of domestic violence at the hands of the other parent, and that he or she reasonably feared future violence. If established, the burden shifts to the other parent to establish that, based on other factors, address confidentiality is not in the child’s best interest. As applied in Nevada, the Sacharow analysis comes into play after the parent seeking the confidential address establishes that he or she shares joint legal custody. Ultimately, the Court denied the writ, finding that the district court was the appropriate court to make the pertinent factual determinations. The Court specifically indicated that its decision did not impair Falconi’s right to seek relief in the district court. Petition denied. (David Stoft, Associate in the Las Vegas office of McDonald Carano Wilson).

Ivey v. Dist. Ct., 129 Nev. Adv. Op. 16 (March 28, 2013)

Before the Court en banc. Opinion by Justice Gibbons.
In this original petition for a writ of mandamus or prohibition, the Court considered whether the district court’s failure to order recusal of a family court judge in connection with certain campaign contributions by parties and attorneys involved in the action violated the petitioners due process rights or Nevada law. Petitioner Luciaetta Ivey and her then spouse, Phil Ivey, filed a joint petition for divorce in the Eighth Judicial District; the case was assigned to Judge William Gonzalez. The parties entered into a marital settlement agreement that set forth, among other things, the monthly alimony payment to Luciaetta. After entry of the divorce decree, Judge Gonzalez successfully ran for re-election. During the campaign for reelection, the Phil, his attorney, his attorney’s wife, and his attorney’s law partner and Luciaetta’s law firm made various cash donations exceeding $10,000 and in-kind contributions to Judge Gonzalez’s campaign. The total cash contributions represented approximately 14% of all contributions to the campaign; the in-kind contributions totaled 25% of all in-kind contributions; Phil’s cash contribution alone equaled 7% of all cash contributions. After the election, a dispute arose over the monthly alimony payments and Judge Gonzalez was assigned to hear Luciaetta’s motion to reopen discovery. Luciaetta sought Judge Gonzalez’s recusal from the new proceeding arguing that the campaign contributions created an appearance of impropriety that resulted in a denial of Due Process and violated Nevada law. Relying on Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009), the Court held that denial of the motion to disqualify did not violate Luciaetta’s due process rights because the size of the contributions at issue, compared to the total sum spent during the campaign, and the effect that contribution may have had on the election’s outcome, did not rise to a level “where the probability of actual bias is too high to ensure the protection of” Luciaetta’s rights. The Court concluded that the amount of donations by the spouse and attorney’s did not rise to the “exceptional” level that existed in Caperton, nor was the timing suspicious because the contributions were made after the entry of the divorce decree. Luciaetta also argued that Judge Gonzalez’s disqualification was required under NRS 1.230 and the Rule 2.11 of the Nevada Code of Judicial Conduct (NCJC) (now the Revised Nevada Code of Judicial Conduct). Because the contributions made were within the statutory limits for campaign contributions and the timing of the contributions was not suspicious, the Court rejected Luciaetta’s argument. In a concurring opinion, Justice Hardesty (joined by Chief Justice Pickering, and Justices Parraguirre and Douglas) wrote to address criticism of the NCJC. Justice Hardesty noted that the Nevada Supreme Court initiated a thorough review of the NCJC in 2009 which included a study on campaign finance rules in light of the Caperton decision. Despite public comments, the Court voted to adopt the RNCJC without inclusion of the committee’s recommendations on this issue. In a second concurring opinion, Justice Saitta wrote separately to voice concerns with the current judicial campaign contribution rules. Writ petition denied. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson).

In Re Parental Rights as to A.G., 129 Nev. Adv. Op. 13 (Feb. 28, 2013)

Before the Court en banc. Opinion by Justice Douglas.
In this appeal, the court examined the question of whether the statutory requirements for reunification with a child after removal from the home for neglect are required to be fulfilled by the non-offending parent. A child was removed from her mother by Social Services. At the time, the mother and father were separated. Social Services subsequently petitioned for a hearing to determine if the child was in need of protection. The mother signed a stipulation of the allegations against her and willingly relinquished custody, but as to the father, the stipulation only noted a temporary protective order against him, not any neglectful behavior. The father reached a stipulation to dismiss the petition for a hearing against him, but Social Services filed a case plan providing for him to submit to drug screenings. He did not sign the case plan. After several dependency proceedings, Social Services moved to terminate the parental rights of the father because he had not complied with his case plan, which Social Services argued triggered the statutory presumptions of NRS 128.109 in favor of terminating parental rights. The district court denied the petition, stating that these legal presumptions did not apply to the father. On appeal, Social Services argued that the initial removal of the child gave Social Services the jurisdiction to place the child with a suitable parent, and that the father was not a suitable parent. The court held that applying the statutory presumptions in favor of terminating parental rights to the father without having maintained a petition against the father for neglect would be a denial of due process. Because the father’s behavior was not the cause of the removal of the child from parental custody in the first place, he could not be compelled to comply with a case plan for reunification, and Social Services otherwise failed to demonstrate that termination of his parental rights was warranted. Affirmed. (Mark Dunagan, Associate in the Reno office of McDonald Carano Wilson.)

DeVries v. Gallio, 128 Nev. Adv. Op. 63 (Dec. 13, 2012)

Before Justices Saitta, Pickering, and Hardesty. Opinion by Justice Hardesty.
In this appeal, the Court reviewed the district court’s decisions resolving a property division and a spousal support issue that arose in a divorce decree. The Court addressed the factors for determining the community interest in a separate property business under the California cases Pereira v. Pereira, 103 P. 488 (Cal. 1909), and Van Camp v. Van Camp, 199 P. 885 (Cal. Ct. App. 1921), and agreed with the district court’s determination that the husband was not entitled to an award of an interest in the business. The husband also sought review of the district court’s rejection of spousal support. In addressing the award of spousal support, the district court did not conduct any evidentiary hearings on the spousal support request and failed to expressly analyze the factors for determining spousal support set forth in Sprenger v. Sprenger, 110 Nev. 855, 878 P.2d 284 (1994), and NRS 125.150(8). The Court found that the district court abused its discretion in making its determination not to award spousal support to either party, because it was unclear from the record if or how the district court applied the relevant case law or statutory factors to the limited evidence that was before it. In making this determination, the Court pointed out that all the evidentiary hearings conducted by the district court focused on the division of property between the parties, and that the district court failed to hear evidence on the support issue. The Court reasoned that it was therefore difficult to determine on what basis the district court arrived at its conclusion that neither party was entitled to spousal support. Affirmed in part and reversed in part. (Brent Keele, Associate in the Reno office of McDonald Carano Wilson.)

Grisham v. Grisham, 128 Nev. Adv. Op. 60 (Dec. 6, 2012)

Before Justices Saitta, Pickering, and Hardesty. Opinion by Justice Pickering.
In this appeal, the Court upheld a final divorce decree based upon a written but unsigned property settlement agreement. Respondent and appellant reached a divorce settlement but the final draft contained interlineated handwritten changes and the parties failed to execute a clean copy prior to the prove-up hearing. At the hearing the draft was admitted as an exhibit, the handwritten changes were read into the record, the parties stipulated that the agreement would be binding, and the court approved the stipulation by minute order. Subsequently, appellant refused to sign the final draft of the agreement and challenged the decree approving the agreement. The Court confronted the interesting question of whether in-court proceedings could create an enforceable agreement. The Court held that District Court Rule 16 permits the enforcement of an agreement if it is entered in the court minutes following a stipulation. Applying general principles of contract law, the Court found that appellant had manifested consent to the agreement by his acknowledgement under oath that he had reviewed and agreed to it. The agreement was not invalidated by the district court’s failure to read the entire agreement out loud into the record. Although the Court noted that there may be a case where an in-court proceeding is so truncated by reliance on exhibits that an intent to be bound is absent, the facts before the Court reflected an implied consent that the agreement be entered in the minutes. Finally, the Court noted that a stipulated judgment made in open court satisfies the statute of frauds. Affirmed. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson.)

Liapis v. Dist. Ct., 128 Nev. Adv. Op. 39 (Aug. 9, 2012)

Before Justices Cherry, Pickering, and Hardesty. Opinion by Justice Hardesty.
In this original petition for writ of mandamus, the Court faced two novel issues: should an attorney who represents one of his parents in a divorce action between both parents be disqualified either (1) because the attorney’s representation will constitute the appearance of impropriety or (2) because representing the parent will violate the concurrent-conflict-of-interest rule in Nevada Rule of Professional Conduct (RPC) 1.7? In answering the first issue, the Court held that there was no disqualifying appearance of impropriety because the appearance of impropriety is no longer recognized by the American Bar Association and the Court has not recognized the appearance of impropriety as a basis for disqualifying counsel except in the limited circumstance of a public lawyer. Thus, as a general matter, an appearance of impropriety without more does not support a lawyer’s disqualification. The Court resolved the second issue by holding there was no violation of RPC 1.7 unless there was an ethical breach by the attorney that affects the fairness of the entire litigation or a proven confidential relationship between the nonclient parent and the attorney. Moreover, the Court held that the nonclient parent did not have standing to assert a conflict claim, largely because she was not a former or current client of her son, the mother-son relationship did not establish a confidential relationship, and there was no suggestion of any other legally recognizable confidential relationship. Because the district court manifestly abused its discretion in disqualifying counsel, the court granted the appellant’s petition and instructed the district court to vacate its order granting Respondent’s motion to disqualify counsel. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP).

In re Parental Rights as to C.C.A., 128 Nev. Adv. Op. 15 (April 5, 2012)

Before Justices Douglas, Hardesty and Parraguirre. Opinion by Justice Douglas.
In this appeal from a judgment terminating parental rights, the Court reversed and remanded the district court’s decision terminating parental rights because the district court failed to state any factual or legal basis for the termination. The order, submitted by the state, recited the statutory bases for terminating parental rights but did not recite any facts from the two-day bench trial or apply the law to those facts. Citing the high standard of proof for termination proceedings and NRCP 52(a), which requires district courts to separately state its findings of fact and conclusions of law in a judgment on a bench trial, the Court held that it could not review the decision because neither the written order nor the record of oral proceedings contained factual findings. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP).

Vaile v. Porsboll, 128 Nev. Adv. Op. 3 (January 26, 2012)

Before Justices Saitta, Hardesty, and Parraguirre. Opinion by Justice Hardesty.
Both parties appealed from a divorce decree; the Court consolidated the appeals and addressed a district court’s ability to enforce or modify a child custody order when neither the divorced parties nor the children live in Nevada. Having resolved the issues involving personal jurisdiction in an earlier appeal, the Court concluded that under the Uniform Interstate Family Support Act (“UIFSA”) a district court retains jurisdiction to enforce its order despite the parties having moved unless and until a court from the new state enters an order modifying the original order in accordance with the UISFA. Courts do not, however, retain jurisdiction to modify the order. Addressing whether the district court had modified the support order or simply clarified it to assist in enforcement, the Court held that a clarification would define the parties previously articulated rights, and a modification would change the rights granted under the previous order. In this case, the district court had modified the order and was without jurisdiction to do so. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)

In re Parental Rights as to S.M.M.D., 128 Nev. Adv. Op. 2 (January 26, 2012)

Before the Court en banc. Opinion by Justice Pickering.
In this appeal involving the Indian Children Welfare Act, the Court determined that the specific language of the Indian Child Welfare Act allowed the tribe and the state to agree to state court jurisdiction over a termination of parental rights for Indian children, despite the general rule that parties cannot agree to confer subject matter jurisdiction upon a court. The Court also rejected the appellant’s argument that the state court lacked jurisdiction because of failure to comply with notice formalities because the appellant had actual notice and participated in the hearing in which her parental rights were terminated. In addressing an issue of general applicability: the Court confirmed that a court always has jurisdiction to determine if it has jurisdiction. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)

Friedman v. Dist. Ct., 127 Nev. Adv. Op. 75 (November 23, 2011)

Before the Court en banc. Opinion by Justice Pickering.
In this petition for a writ of mandamus and/or prohibition, the Nevada Supreme Court considered whether, under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a Nevada family court could assert jurisdiction over a child custody dispute- pursuant to an agreement between the parties-when all parties have relocated to another state. First, the Court determined that, under the UCCJEA, exclusive, continuing jurisdiction (UCCJEA Jurisdiction) is extinguished when “the child, the child’s parents and any person acting as a parent do not presently reside in the State.” Next, the Court considered whether the parents’ agreement to maintain jurisdiction in Nevada, despite their relocation to California, would trump the UCCJEA. The Court concluded that the UCCJEA is the exclusive jurisdictional basis for child custody determinations and no agreement by the parties may override the jurisdiction conferred by the UCCJEA. However, the Court noted that such agreements may be reviewed by a court with UCCJEA jurisdiction and that court may then decline jurisdiction, deferring it to a more convenient/appropriate forum. Lastly, the Court rejected the argument that the parties were judicially or equitably estopped from contesting Nevada’s jurisdiction because, as the Court emphasized, under the UCCJEA, subject matter jurisdiction may not be conferred by a court with no authority to act. Any estoppel arguments must only be asserted to the court with UCCJEA jurisdiction. In a dissent joined by Justice Cherry, Justice Gibbons maintained that the issuance of such extraordinary writs is only permissible when there is not “a plain, speedy, and adequate remedy at law.” Justice Gibbons contended that because the California court has not agreed to jurisdiction and an agreement conferring jurisdiction to Nevada exists, extraordinary relief is not warranted. Justice Cherry wrote separately to add that the legislature should reevaluate this statute to ensure that parties can stipulate to jurisdiction in the future. Petition granted. (Amanda M. Hogeg, Associate in the Las Vegas office of McDonald Carano Wilson).

Rennels v. Rennels, 127 Nev. Adv. Op. 49 (August 4, 2011)

Before Hardesty, Saitta and Parraguirre. Opinion by Hardesty.
In this family law case, the Court considered (1) whether a stipulated visitation order between a parent and a grandmother was a final decree entitled to res judicata protections; and (2) whether the parental presumption – i.e. fit parents act in the best interests of their child – continues to apply when a parent seeks to modify or terminate a nonparent’s judicially approved visitation rights of a minor child. The Court held that the stipulated visitation order between the parent and grandmother was a final order because it intended to resolve the entire dispute, thus it was a final decree that precluded relitigation of the nonparent’s right to visitation based on the same set of facts already considered. Next, the Court held that where a parent seeks to modify or terminate the judicially approved visitation rights of a nonparent, the parental presumption no longer controls. The Court adopted the two-prong test previously enunciated in Ellis v. Carucci, 123 Nev. 145 (2007), holding that modification or termination of a nonparent’s judicially approved visitation rights is only warranted upon a showing of substantial change in circumstances that affects the child’s welfare such that it is in the child’s bests interests to modify an existing visitation arrangement. Once a nonparent has effectively rebutted the parental presumption, a child’s need for stability becomes an important factor. Although the Court declined to articulate what circumstances may evidence the substantial change required under the first prong, the Court noted that hostility or animosity between the parent and nonparent, by itself, is insufficient. Under the second prong (best interests of the child) a court should evaluate the factors in NRS 125.480(4) as well as any other relevant considerations. Reversed and remanded for further proceedings. (Kristen Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson)