Opinion
85208-COA
06-20-2023
ALLISON HOLMES, Appellant, v. FELIPE SERRANO, Respondent.
UNPUBLISHED OPINION
ORDER OF REVERSAL AND REMAND
GIBBONS, C.J.
Allison Holmes appeals from the final judgment in an action to determine paternity, child custody, and child support. Second Judicial District Court, Family Division, Washoe County; Aimee Banales, Judge.
Holmes and respondent Felipe Serrano were never married and have one minor child together, who was born in 2019. In 2021, Holmes filed a petition in the district court seeking various forms of relief, including, as relevant here, primary physical custody. Serrano, in turn, filed an answer and counterclaim in which he requested, among other things, that the parties be awarded joint physical custody. The district court subsequently directed that the parties attend mediation. At the mediation, the parties agreed upon a parenting plan that established a custodial schedule. In particular, the parenting plan provided that Serrano would have physical custody each week from Saturday at 6:00 p.m. until Monday at 8:00 a.m. and from Wednesday when the child is picked up from daycare until Thursday at approximately 8:00 a.m. when the child is dropped off for daycare. Holmes was to have physical custody during the remainder of the week pursuant to the parenting plan. Although the parties were able to agree to the foregoing custodial schedule, they were unable to agree about whether their custodial arrangement should be designated as primary physical custody in Holmes' favor or joint physical custody. As a result, the district court entered an order adopting the parenting plan but permitted briefing with respect to the proper designation for the parties' custodial arrangement.
The parties then filed competing motions for partial summary judgment in which they analyzed their respective timeshares in the context of the 40-percent guideline for examining whether a custodial arrangement constitutes joint physical custody, which was discussed in Rivero v. Rivero, 125 Nev. 410, 425-27, 216 P.3d 213, 224-25 (2009), overruled in part on other grounds by Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 984 (2022), and Bluestein v. Bluestein, 131 Nev. 106, 112-13, 345 P.3d 1044, 1048-49 (2015). Based on their respective analyses, Holmes specifically argued that the parties' custodial arrangement constituted primary physical custody in her favor, while Serrano maintained that it constituted joint physical custody. The district court granted summary judgment in Serrano's favor after briefly comparing the parties' timeshares and observing that the child would spend approximately 156 nights per year with Serrano, which was 42 percent of the nights in a calendar year. This appeal followed.
This court reviews a district court order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper if the pleadings and all other evidence on file demonstrate that no genuine dispute of material fact exists and that the moving party is entitled to judgment as a matter of law. Id. When deciding a summary judgment motion, all evidence must be viewed in a light most favorable to the nonmoving party. Id. General allegations and conclusory statements do not create genuine disputes of fact. Id. at 731, 121 P.3d at 1030-31.
On appeal, Holmes argues that the district court misapplied the 40-percent guideline in determining that the parties' custodial arrangement constituted joint physical custody as a matter of law. Taken together, the supreme court's decisions in Rivero and Bluestein explain that a joint physical custody arrangement is generally one in which each parent has physical custody of the child at least 40 percent of the time, which is equal to at least 146 days in a calendar year, although the district courts may deviate from this guideline based on the best interest of the child, which is the paramount consideration in determining whether a custodial arrangement qualifies as joint or primary physical custody. See Rivero, 125 Nev. at 427, 216 P.3d at 225 ("[A]bsent evidence that joint physical custody is not in the best interest of the child, if each parent has physical custody of the child at least 40 percent of the time, then the arrangement is one of joint physical custody"); Bluestein, 131 Nev. at 113, 345 P.3d at 1049 (explaining that the "40-percent guideline should not be so rigidly applied that it would preclude joint physical custody when the court has determined in the exercise of its broad discretion that such a custodial designation is in the child's best interest"); see also NRS 125C.0035(1) (providing that the sole consideration when making a custody determination is the best interest of the child).
Serrano is proceeding on appeal in pro se and did not file an answering brief. Although we could treat this failure as a confession of error and summarily reverse the challenged order, see Rhode Island v. Prins, 96 Nev. 565, 566, 613 P.2d 408, 409 (1980) (explaining that the appellate courts may treat a respondent's failure to file an answering brief as a confession of error); see also NRAP 31(d)(2), we decline to do so given that, as discussed below, the district court failed to apply the correct analysis in addressing whether the parties' custody arrangement constituted joint or primary physical custody.
In calculating the parties' respective timeshares, the district court should not focus on "the exact number of hours the child was in the care of [a] parent, whether the child was sleeping, or whether the child was in the care of a third-party caregiver or spent time with a friend or relative during the period of time in question." Rivero, 125 Nev. at 427, 216 P.3d at 225. Instead, the district court must "look at the number of days during which a party provided supervision of the child, the child resided with the party, and during which the party made the day-to-day decisions regarding the child." Id. In essence, the district court was required to determine how the day-to-day care responsibilities for the child were distributed between the parties in light of their custodial arrangement. Id. at 428, 216 P.3d at 226 (providing that a party has primary physical custody if he or she "has the primary responsibility for maintaining a home for the child and providing for the child's basic needs").
In the present case, the district court calculated the parties' respective timeshares by simply looking to which party the child will spend his nights with over the course of a calendar year. However, as discussed above, the methodology developed by the supreme court for calculating timeshares is not limited to an assessment of where a child will sleep on any given night. See id. at 427, 216 P.3d at 225. The district court's decision to focus on the sleeping arrangements for the child rather than the distribution of the responsibilities for the child's day-to-day care was a significant deficiency, as the party who has physical custody of a child at any given time is not necessarily the party who is responsible for the child's day-to-day care. See Greeley o. Campbell, No. 72531, 2018 WL 1053347, at *2 (Ct. App. Feb. 14, 2018) (Order of Affirmance) (concluding that substantial evidence supported the district court's determination that one parent maintained day-to-day care responsibilities for the child during the other parent's scheduled custodial time). Moreover, in concluding that the parties' custodial arrangement constituted joint physical custody because the child would spend 42 percent of his nights with Serrano, the court failed to make any findings concerning the child's best interest, such that it seemingly overlooked that the child's best interest remains the paramount consideration when making a custodial designation. See Rivero, 125 Nev. at 427, 216 P.3d at 225; Bluestein, 131 Nev. at 113, 345 P.3d at 1049.
Although we recognize that these deficiencies were influenced, at least in part, by the parties' briefing, which asked the district court to make a determination as a matter of law concerning the nature of their custodial arrangement based solely on the custodial schedule set forth in their parenting plan, we are constrained to conclude that the district court did not apply the correct legal standard in designating the arrangement as joint physical custody and that it therefore erred by granting Serrano's motion for partial summary judgment. See Wood, 121 Nev. at 729, 121 P.3d at 1029. Accordingly, we
importantly, by the time the parties filed their motions for partial summary judgment, they had been following the custody schedule at issue here, which predated the parties' parenting plan, for approximately four months. Yet in seeking a ruling from the district court concerning a designation for their custodial arrangement, the parties did not offer any specifics with respect to their responsibilities for the child's care or address how their proposed designations for the schedule related to the child's best interest.
ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.
The Honorable Abbi Silver, Senior Justice, participated in the decision of this matter under a general order of assignment.
Westbrook J., Silver J.
Hon. Aimee Banales, District Judge.