Opinion
85093-COA
10-24-2023
ERIN CAMBRA, Appellant, v. CHARLES LANDING, Respondent.
UNPUBLISHED OPINION
ORDER AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Erin Cambra appeals from a district court child custody and support decree. Ninth Judicial District Court, Douglas County; Thomas W. Gregory, Judge.
Cambra and respondent Charles Landino were never married but have one minor child in common. In 2021, Landino commenced a custody action against Cambra, seeking joint legal and physical custody and a determination of the parties' respective child support obligations and interests in certain personal property. Shortly thereafter, in a separate justice court action, Cambra obtained an ex parte temporary protection order (TPO) against Landino based on allegations of domestic violence. The TPO action was later transferred to the district court and consolidated with the underlying proceeding for resolution of Cambra's request for an extension of the TPO. Following a two-day evidentiary hearing on Cambra's request for an extension of the TPO, the district court concluded that she failed to meet her burden of establishing an act or threat of domestic violence, and therefore, the court denied her request as it related to the TPO. Despite the denial, the district court also indicated that nothing precluded Cambra from attempting to prove that domestic violence had occurred when the case proceeded to trial on the custody issue.
Cambra then filed an answer and counterclaim to Landino's complaint in which she sought sole legal and physical custody, permission to relocate to Oklahoma with the child, an award of child support, and a determination of the parties' respective interests in certain real and personal property. The same day, Cambra also filed a motion for interim primary physical custody for purposes of relocation. The district court denied that motion, reasoning that the issues presented therein, including the domestic violence allegation that had been presented during the evidentiary hearing on Cambra's application to extend the TPO, should not be resolved before discovery and a trial. Around this time, the district court also determined that it lacked subject matter jurisdiction to adjudicate the parties' property disputes in the context of the underlying action and, as a result, denied the parties' pending motions insofar as they related to their property disputes.
The matter eventually proceeded to a one-day trial on the child custody and support issues. Following the trial, the district court entered a custody decree in which it awarded the parties joint legal and physical custody of the child; established Landino's child support obligation; determined that Cambra was not entitled to child support arrears; and allocated the dependency tax exemption to the parties on an alternating-year basis, commencing with Landino in 2022. The court did not resolve the parties' property disputes on jurisdictional grounds. This appeal Followed.
Child Custody Issues
On appeal, Cambra primarily challenges the decision to award the parties joint physical custody. This court reviews the district court's child custody determinations, including its resolution of requests to relocate with a minor child, for an abuse of discretion. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007); Flynn v. Flynn, 120 Nev. 436, 440 n.6, 92 P.3d 1224, 1227 n.6 (2004). We will not disturb the court's factual findings unless they are clearly erroneous or unsupported by substantial evidence. Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). Substantial evidence is that which a reasonable person may conclude is adequate to sustain a judgment. Ellis, 123 Nev. at 149, 161 P.3d at 242. In making a custody determination, the sole consideration is the best interest of the child. NRS 125C.0035(1); Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015). We presume the district court properly exercised its discretion in determining the child's best interest. Flynn, 120 Nev. at 440, 92 P.3d at 1226-27.
In this case, the parties presented extensive evidence and testimony at the evidentiary hearing on the TPO extension request and at trial, which the district court considered in resolving their custodial dispute. Based on that evidence and testimony, the court entered a detailed 17-page written order in which it concluded that joint physical custody was in the child's best interest after thoroughly analyzing the best interest factors set forth in NRS 125C.0035(4) and finding that they either favored Landino or were otherwise neutral, unproven, or inapplicable. See Lewis v. Lewis, 132 Nev. 453, 459-60, 373 P.3d 878, 882 (2016) (recognizing that the district court must consider the best interest factors in making custody determinations).
Although Cambra challenges several of the district court's specific factual findings, at its core, her argument is essentially that she presented sufficient evidence to demonstrate that primary physical custody in her favor was in the child's best interest, but the court nevertheless ruled against her because it improperly weighed or misinterpreted the evidence. The flaw in this argument is that Landino also presented extensive evidence at the evidentiary hearing and at trial that conflicted with Cambra's evidence, which the court considered in resolving the parties' custodial dispute. While Cambra is dissatisfied with the way in which the district court weighed the parties' conflicting evidence, this court will not reweigh the evidence or reevaluate witness credibility on appeal. See Quinte.ro v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000) (refusing to reweigh the evidence on appeal); see also Ellis, 123 Nev. at 152, 161 P.3d at 244 (refusing to reweigh credibility determinations on appeal). Instead, we deferentially review the district court's custody determination, focusing on whether it "reached its conclusions for the appropriate legal reasons" and whether its factual findings were "supported by substantial evidence." Ellis, 123 Nev. at 149, 161 P.3d at 241-42.
Here, the divorce decree and transcripts from the evidentiary hearing and trial demonstrate that, the district court gave due consideration to the issues and evidence before it and awarded the parties joint physical custody for appropriate reasons-specifically, its determination that doing so was in the child's best interest. See NRS 125C.0035(1); see also Davis, 131 Nev. at 451, 352 P.3d at 1143. That determination was based on an evaluation of the best interest factors, including a thorough examination of whether Landino committed domestic violence against Cambra, which the district court found that Cambra failed to establish, either by a preponderance of the evidence or clear arid convincing evidence. See Lewis, 132 Nev. at 459-60, 373 P.3d at 882; see also Mack v. Ashlock, 112 Nev. 1062, 1066, 921 P.2d 1258, 1261 (1996) (explaining that the preponderance of the evidence standard generally governs civil matters, including child custody determinations); but see NRS 125C.0035(5) (providing that clear and convincing evidence of domestic violence creates a rebuttable presumption that sole or joint physical custody with the perpetrator is not in the child's best interest). The district court made specific factual findings regarding the best interest factors, which were supported by substantial evidence, and provided an adequate explanation for its decision that, as a whole, the best interest factors weighed in favor of joint physical custody. See Davis, 131 Nev. at 452, 352 P.3d at 1143 (explaining that specific findings-particularly with respect to the best interest factors-and an adequate explanation are required for custody determinations since, "[w]ithout them, this court cannot say with assurance that the custody determination was made for appropriate legal reasons").
Although we agree with Cambra that the district court's best interest analysis incorrectly referred to one of the child's siblings as his stepbrother rather than his half-brother, the district court's use of incorrect terminology in this respect has no bearing on the evidence underlying its determination that a joint physical custody relationship would allow the child and sibling to have a continuing relationship. See NRS 125C.0035(4)(i) (indicating that the child's ability to maintain a relationship with any sibling is a factor for the district court to consider in evaluating the child's best interest). We also recognize that the district court incorrectly found that Cambra failed to disclose in her 2021 TPO application that a prior TPO against Landino, which she had obtained, was dissolved at her request. However, the district court's ultimate determination that Cambra failed to establish that Landino committed acts of domestic violence was influenced by many other considerations and, as a whole, it was supported by substantial evidence, notwithstanding the minor inaccuracies mentioned above. See NRS 125C.0035(4)(k) (indicating that the question of whether a parent has committed an act of domestic violence against the child or a parent of the child is a factor for the district court to consider in evaluating the child's best interest). And regardless of whether any of the district court's individual findings were inaccurate, Cambra has not shown how the district court's overall custody determination was incorrect. See Flynn, 120 Nev. at 440, 92 P.3d at 1226-27.
To overcome the foregoing, Cambra presents three additional arguments that broadly attack the district court's custody determination. First, Cambra asserts that the court improperly admitted or excluded certain testimony and that it made scheduling changes to the trial on relatively short notice that prevented her from presenting evidence and testimony that she otherwise would have proffered but for the scheduling changes. However, although Cambra disagrees with the district court's resolution of various hearsay and character-evidence issues, she does not offer any explanation as to why she believes any specific testimony was either admissible or inadmissible. Likewise, Cambra offers no indication of what evidence and testimony she would have presented at trial absent the scheduling changes, nor does she meaningfully explain how the scheduling changes impacted her ability to present any specific evidence or testimony. As a result, Cambra has failed to cogently argue these points, and, therefore, we need not consider them. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38: 130 P.2d 1280, 1288 n.38 (2006) (providing that Nevada's appellate courts need not consider issues unsupported by cogent argument or relevant legal authority).
Insofar as Cambra also asserts that the trial in this case was not conducted in accordance with SCR 25Ts general rule that custody issues be resolved within six months after the filing of a responsive pleading, she has not demonstrated a basis for relief. The record reflects that, although the trial was initially scheduled within SCR 25 Ts six-month period, it was later continued based on a stipulation between the parties in connection with their efforts to obtain psychological evaluations. In taking this action, the district court did not make contemporaneous findings on this point in its continuance order. See SCR 251 (providing that trial may be extended beyond the six-month period only upon entry of specific findings regarding the unforeseen circumstances that justify the extension of time). However, the district court eventually entered an order in which it explained the foregoing, further described how the continuance resulted in the trial being pushed back by approximately half a year due to scheduling conflicts, and determined it was necessary to reschedule the trial to an earlier date to adhere to the policies underlying SCR 251. Thus, although the district court could have more scrupulously adhered to SCR 25 Ts procedural requirements, it nevertheless endeavored to rectify the situation, and we discern no prejudice to Cambra in this respect. Cf. NRCP 61 ("At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights).
And regardless, Cambra's argument concerning the rescheduling of the trial fails given that the district court repeatedly emphasized at trial that it would extend the proceeding if necessary and invited Cambra to proffer additional evidence or witnesses for its consideration, which she failed to do.
Second, Cambra asserts that the district court's custody determination was influenced by biases against her gender and ethnicity. But this assertion fails because Cambra has not demonstrated that any alleged, bias was based on knowledge acquired outside of the proceedings, and the decision does not otherwise reflect "a deep-seated favoritism or antagonism that would make fair judgment impossible." See Canarelli v. Eighth Judicial Dist. Court, 138 Nev. 104, 107, 506 P.3d 334, 337 (2022) (explaining that, unless an alleged bias has its origins in an extrajudicial source, disqualification is unwarranted absent a showing that the judge formed an opinion based on facts introduced during official judicial proceedings, which reflects deep-seated favoritism or antagonism that would render fair judgment impossible); In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988) (providing that ridings made during official judicial proceedings generally "do not establish legally cognizable grounds for disqualification"); see also Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 291 (Ct. App. 2023) (noting that the burden is on the party asserting bias to establish sufficient factual grounds for disqualification).
Lastly, Carabra asserts that, in making its custody determination, the district court improperly failed to consider her motion to relocate with the child. Here, the court initially denied Cambra's motion without reaching its merits so that the matter could be addressed at trial, after discovery was completed, which was within the court's discretion. Cf. MDB Trucking, LLC v. Versa Prods. Co., 136 Nev. 626, 630, 475 P.3d 397, 403 (2020) (recognizing the district court's "inherent authority to manage the judicial process so as to achieve the fair, orderly, and expeditious disposition of cases"). Cambra then failed to present any evidence at trial directly pertinent to the relocation issue for the district court's consideration. See Druckman v. Ruscitti, 130 Nev. 468, 473-74, 327 P.3d 511, 515 (2014) (explaining the procedure that must be followed when a parent seeks to relocate with a child prior to the entry of an order finally establishing custody, which requires the moving party to demonstrate that there is "a sensible, good faith reason for the move" and that the relocation is in the child's best interest (internal quotation marks omitted)); see also Shakrokki v. Burrow, Nos. 81978, 82245, & 83726, 2022 WL 1509740, at *3 (Nev. May 12, 2022) (Order of Affirmance (Docket Nos. 81978, 82245.. & 83726) and Dismissing Appeal in Part (Docket No. 83726)) (explaining that the test for evaluating relocation requests set forth in Druckman applies in the absence of a court order finally establishing custody). And although the district court did not make any specific findings concerning Cam bra's relocation request in the custody decree, the court effectively denied her request by awarding the parties joint physical custody. See Druckman, 130 Nev. at 473, 327 P.3d at 515 (providing that, when parents have equal custody rights, a parent cannot relocate with a child outside of Nevada over the other parent's objection unless the relocating parent successfully moves for primary physical custody for the purpose of relocating)
Insofar as Cambra asserts that the district court was nevertheless required to grant her relocation request since she is a member of a federally recognized Native American tribe and sought to relocate to the tribe's land with the child who was also eligible for membership, she failed to cite to any legal authority to support that proposition. See Edwards, 122 Nev. at 330 n.38, 130 P.3d at 1288 n.28. But regardless, even assuming that Cambra's position is that the court could not properly deny her motion under these circumstances pursuant to the Indian Child Welfare Act (ICWA), which sets forth jurisdictional rules for certain "child custody proceeding[s]," see 25 U.S.C. § 1911, relief is unwarranted because that statute does not apply to the parties' custodial dispute. See 25 U.S.C. § 1903(1) (listing proceedings that qualify as "child custody proceeding[s]" for purposes of the ICWA and providing that "[s]uch term or terms shall not include a placement based . . . upon an award, in a divorce proceeding, of custody to one of the parents"); see also Mitchell v. Preston, 439 P.3d 718, 723 (Wyo. 2019) ("Even though the statutory exemption [set forth in 25 U.S.C. § 1903(1)] uses the term 'divorce,' it applies to custody disputes between non-married parents."); Starr v. George, 175 P.3d 50, 54 (Alaska 2008) (stating the same).
Given the foregoing, we conclude that Cambra failed to demonstrate that the district court abused its discretion by awarding the parties joint physical custody and denying her relocation request. Ellis, 123 Nev. at 149, 161 P.3d at 241; Flynn, 120 Nev. at 440 n.6, 92 P.3d at 1227 n.6. Accordingly, we affirm those decisions. Child support issues
Nevertheless, in almost all relocation cases, the district court should analyze the appropriate relocation factors regardless of whether the relocation issue is governed by the framework set forth in NRS 125C.007 or Druckman, 130 Nev. at 473-74, 327 P.3d at 515.
To the extent Cambra relies on her arguments concerning the district court's weighing of the evidence, handling of hearsay issues, rescheduling of the trial, and alleged biases to challenge any other aspect of the custody decree, her arguments fail for the same reasons as set forth above.
Cambra next challenges the portion of the custody decree that established Landino's child support obligation and determined that Cambra was not entitled to child support arrears. This court reviews child support orders for an abuse of discretion. Edgington v. Edging ton, 119 Nev. 577, 588, 80 P.3d 1282, 1290 (2003). As with custody determinations, this court will not disturb the factual findings underlying a child support order if they are supported by substantial evidence, Miller v. Miller, 134 Nev. 120, 125, 412 P.3d 1081, 1085 (2018), "which is evidence that a reasonable person may accept as adequate to sustain a judgment/' Ellis, 123 Nev. at 149, 161 P.3d at 242.
Cambra argues that, in calculating Landino's base child support obligation, the district court incorrectly found that his gross monthly income was $7,001 per month. She further contends that the court improperly provided for a downward adjustment of Landino's support obligation based on his payment of the child's health insurance premiums. However, at trial, Landino testified that, following a change in employment, his gross monthly income was approximately $7,000 per month, and he introduced into evidence a financial disclosure form, with supporting documentation, indicating that his gross monthly income was $7,001. And those materials and testimony constituted substantial evidence to support the district court's finding with respect to Landino's gross monthly income, notwithstanding Cambra's conflicting testimony regarding her belief that Landino earned significantly more. See id.
Moreover, with respect to the downward adjustment, NAC 425.100(3)(a)-(b) authorizes the district court to adjust a base child support. obligation provided that the court makes specific findings with respect to what the obligation is pursuant to the applicable guidelines and the reason for adjusting it. Here, the district court specifically and correctly found that Landino's base child support obligation was $780 per month pursuant to the applicable formula. See NAC 425.140 (setting forth the general formula for calculating base child support obligations); see also NAC 425.115(3) (explaining how NAC 425.140's formula is to be applied in the context of a joint physical custody arrangement). The district court further found that, because Landino made a $204 monthly payment for the child's medical insurance, a downward adjustment of $102, representing one-half of the medical insurance payment, was appropriate. The applicable regulations anticipate adjustments to base child support obligations on the foregoing-basis. See NAC 425.150(1) (setting forth a list of factors for the district court to consider in determining whether to adjust a base child support obligation, including "fajny other necessary expenses for the benefit of the child"). And the financial disclosure form that Landino introduced at trial constitutes substantial evidence supporting the district court's finding with respect to the amount of Landino's medical insurance payment. Ellis, 123 Nev. at 149, 161 P.3d at 242. Consequently, we conclude that the district court did not abuse its discretion in calculating Landino's child support obligation. See Edgington, 119 Nev. at 588, 80 P.3d at 1290.
Turning to child support arrears, Cambra argues that the district court improperly denied her request for such relief, covering the period between the parties' separation and the date that Landino began making formal child support payments pursuant to a court order, based on its finding that she removed $45,000 from the parties' joint bank account during that period. While the court indeed denied Cambra's request on that basis, it also did so based on voluntary support payments that Landino made to Cambra during the relevant period. And because Cambra does not address the additional basis for the court's decision, she failed to demonstrate that it abused its discretion by denying her request for child support arrears. See Hung v. Genting Berhad, 138 Nev., Adv. Op. 50, 513 P.3d 1285, 1288 (Ct. App. 2022) (holding that when a district court provides independent alternate grounds to support its ruling, the appellant must properly challenge all of the grounds otherwise the ruling will be affirmed); sec also Edgington, 119 Nev. at 588, 80 P.3d at 1290.
However, in connection with our determination below that the district court improperly failed to exercise jurisdiction over the parties' property disputes, further action is needed insofar as the district court denied Cambra's claim for child support arrears based, in part, on its determination that she removed $45,000 from the parties' joint bank account. In particular, since those funds are among the property to which the parties asserted competing claims, on remand, the court must clarify what interest it determined that Landino had in the funds and account for its arrearages determination in resolving the parties' property disputes.
Thus, given the foregoing, we affirm the custody and support decree insofar as it established Landino's child support obligation and determined that Cambra was not entitled to child support arrears.
Dependency Tax Credit Issue
Cambra next challenges the portion of the custody decree addressing the child dependency tax exemption (child tax credit) insofar as the district court directed that the alternating-year allocation of the child tax credit between the parties commence with Landino claiming it for the 2022 tax year. In particular, Cambra maintains that she should have received the child tax credit for the 2022 tax year since the child resided with her during the majority of that year. We review a district court's order allocating the child tax credit for an abuse of discretion. See Sertic v. Sertic, 111 Nev. 1192, 1197, 901 P.2d 148, 151 (1995) (concluding that the district court "should have broad discretion' over allocating the child tax credit).
Under 26 U.S.C. § 152(e)(4)(A), when a dependent child's parents are divorced or separated, the child's custodial parent is defined as "the parent having custody for the greater portion of the calendar year." However, while the custodial parent is generally entitled to claim the child tax credit, 26 U.S.C. § 152(e)(2) contains an express exception that permits the custodial parent to execute a waiver that allows the noncustodial parent to claim the child tax credit. See also Sertic, 111 Nev. at 1197, 901 P.2d at 151 ("Although [§ 152] directs that the custodial parent should receive the exemption, it provides several exceptions to this rule. One exception is that the custodial parent may waive the right to the exemption for any given year").
In Sertic, the district court ordered the parents to share joint physical custody of their minor child and directed that they claim the child tax credit in alternating years, rather than ordering that the child's mother, who was the federally-defined custodial parent, receive the credit. Id. at 1196-97, 901 P.2d at 151. On appeal the mother "raised the issue of whether the district court erred by not giving her the child [tax credit] for federal tax purposes each year." Id. at 1196, 901 P.2d at 151. The Nevada Supreme Court held that the district court properly allocated the child tax credit because federal tax law expressly provided for the waiver exception, and where the Sertics shared joint custody of their minor child, the district court has "broad discretion" over the child tax credit. Id. at 1197, 901 P.2d at 151. The court also explained that ordering the custodial parent to execute the necessary documentation was not overly burdensome because the "custodial parent must execute the release only one time." Id. Thereafter, the burden is on the noncustodial parent to attach the release to his return on each alternate year that he is eligible to claim the exemption." Id. But because it was unclear whether the district court had directed the child's mother to execute the IRS waiver form that would permit the father to claim the federal tax credit in alternating years, the supreme court directed the district court to require her to do so on remand if the same had not already been mandated. Id. at 1198: 901 P.2d. at 151.
In. the present case, Cambra only challenges the district court's decision with respect to the child tax credit insofar as it determined that the alternating allocation between the parties would commence with Landino claiming the credit in 2022, which she essentially contends was improper since she was the custodial parent in 2022. However, as detailed above, the court could properly allocate the child tax credit to Landino for the 2022 tax year given the federal code's waiver provision and the court's broad discretion over such matters. See 26 U.S.C. § 152(e)(2); see also Sertic, 111 Nev. at 1197, 901 P.2d at 151. We recognize that the court failed to direct the parties to execute the waiver documentation needed to give effect to its allocation of the child tax credit, which is a step that must still be completed. See Miller v. Comn'r 114 T.C. 184 196 (T.C. 2000) (concluding that, "[s] imply attaching a State court order that is not signed by the custodial parent to the return of the noncustodial parent does not satisfy the express statutory requirements of [26 U.S.C. §] 152(e)(2)(A)). Nevertheless, since Cambra has failed to demonstrate that the court abused its discretion in allocating the child tax credit to Landino in 2022 and does not otherwise challenge the remainder of the district court's allocation of the credit, we affirm the district court's decision allocating the tax credit. However, we direct the district court to require the parties to execute the necessary waiver documentation on remand if they have not already done so. See Serlic, 111 Nev. at 1198, 901 P.2d at 151. Property disputes
Cambra next challenges the district court's handling of the parties' property disputes. In doing so, she correctly observes that the district court made an interlocutory determination that it lacked jurisdiction to hear the disputes in the context of this action. That decision was erroneous. See In re Aboud, 129 Nev. 915, 921, 314 P.3d 941, 945 (2013) (providing that jurisdictional issues are subject to de novo review); cf. Landreth v. Malik, 127 Nev. 175, 177, 185-86, 251 P.3d 163, 164, 169-70 (2011) (holding that district court judges sitting in family court have the authority to hear property matters between unmarried parties). Indeed, the Ninth Judicial District Court is a court of general jurisdiction, which has original jurisdiction in all cases outside the jurisdiction of justice courts. See Nev. Const, art. 6, § 6(1); NRS 3.019 (requiring two judges in the Ninth Judicial District); NRS 3.0105 (establishing family courts in judicial districts with populations exceeding 100,000 persons); Landreth, 127 Nev. at 186, 251 P.3d at 170 (discussing the general jurisdiction of district courts in jurisdictions without family courts). Thus, for the foregoing reasons, we reverse the district court's decision as to its jurisdiction over the parties' property disputes and remand for further proceedings as to those disputes.
To the extent the record on appeal includes documentation related to Cambra's challenge, we cannot consider it because it was not part of the pre-appeal record. See Carson Ready Mix, Inc. v. First Nat'l Bank of Nev., 97 Nev. 474, 476, 635 P.2d 276, 277 (1981) (providing that the appellate courts cannot consider materials that are not a proper part of the record on appeal).
Because the custody and support decree was the final judgment in this case, to the extent the court purported to reopen the property disputes after this appeal was filed, it lacked jurisdiction to do so. See Mack-Manley v. Manley, 122 Nev. 849, 855, 138 P.3d 525, 529-30 (2006) (explaining that the filing of an appeal divests the district court of jurisdiction over matters pending before the appellate courts, although the district court retains jurisdiction over issues that are collateral to and independent of the appealed order).
Insofar as the parties raise arguments that are not specifically addressed in this order, we have considered them and conclude that they either do not present a basis for relief or need not be reached given the disposition of this appeal.
Gibbons, Bulla, Westbrook JJ.
Hon. Thomas W. Gregory, District Judge