Opinion
83054-COA
06-15-2021
KA1 PERRY, Petitioner, v. HONORABLE DAWN R. THRONE, EIGHTH JUDICIAL DISTRICT COURT, FAMILY DIVISION Respondent, LOLITA RIMSON, Real party in Interest.
ALEX B. GHIBAUDO, P.C., ESQ., Nevada Bar No: 10592, Attorney for Petitioner. KAI PERRY, Petitioner. LAW OFFICES OF Frank J. Toti, Esq., Attorney for Real Party in Interest. LOLITA RIMSON, Real Party in Interest. THE HONORABLE DAWN R. THRONE, Eighth Judicial District Court, Family, Respondent.
UNPUBLISHED OPINION
District Court Case No: D-20-612589-F.
ALEX B. GHIBAUDO, P.C., ESQ., Nevada Bar No: 10592, Attorney for Petitioner.
KAI PERRY, Petitioner.
LAW OFFICES OF Frank J. Toti, Esq., Attorney for Real Party in Interest.
LOLITA RIMSON, Real Party in Interest.
THE HONORABLE DAWN R. THRONE, Eighth Judicial District Court, Family, Respondent.
EMERGENCY PETITION FOR A WRIT OF MANDAMUS PURSUANT TO NRAP 27(E)
COMES NOW Petitioner KAI PERRY ("Petitioner") by and through his attorney of record, ALEX B. GHIBAUDO, ESQ. of the law firm of ALEX B. GHIBAUDO, P.C, and submits the foregoing Emergency Motion Under NRAP 27(e), for a Writ of Mandamus, or alternatively a Writ of Prohibition. It is requested that this motion be decided no later than June 15, 2021 by 12:00 p.m. After that date, the child will be removed outside of Nevada and an arrest warrant will issue if the child is not turned over.
NRAP 26.1 DISCLOSURE
The undersigned counsel of record certifies that the following are persons and entities as described in NRAP 26.1(a). and must be disclosed. These representations are made so that the judges of this court may evaluate possible disqualification or recusal. Petitioner, Kai Perry is an individual. There are no corporations in this case.
TABLE OF CONTENTS
NRAP26.1 DISCLOSURE.......................................................................................2
TABLE OF CONTENTS.........................................................................................3
TABLE OF LEGAL AUTHORITIES......................................................................3
ROUTING STATEMENT........................................................................................6
RELIEF SOUGHT....................................................................................................7
ISSUES PRESENTED..............................................................................................7
NRAP 27(e) CERTIFICATE.....................................................................................8
STATEMENT OF THE FACTS.............................................................................11
STANDARD FOR WRIT......................................................................................22
A WRIT IS WARRANTED ON THE MERITS...................................................24
A. Summary of argument.......................................................................................24
B. Legal Argument.................................................................................................25
CONCLUSION......................................................................................................37
VERIFICATION.....................................................................................................37
CERTIFICATE OF COMPLIANCE.......................................................................39
CERTIFICATE OF SERVICE................................................................................41
TABLE OF LEGAL AUTHORITIES
NEVADA CASES
Adams v. Adams, 107 Nev. 790, 791, 820 P.2d 752, 753, 1991 Nev. LEXIS 169, * 1 (Nev. November 5, 1991)........................................................................................23
B a I dona do v. Wynn Las Vegas, LLC, 124 Nev. 951, 964-65, 194 P.3d 96, 105 (2008)...............................................23, 25
Brunzell v. Golden Gate National Bank, 85 Nev. 345, 455 P.2d 31 (1969).............................................................................36
Cheung v. Eighth Judicial Dist. Court of Nev., 121 Nev. 867, 869 (Nev. 2005).........................................................................21, 22
City of Oakland v. Desert Outdoor Adver., Inc., 127 Nev. 533, 534, 267 P.3d 48, 49, 2011 Nev. LEXIS 54, *1, 127 Nev. Adv. Rep. 46 (Nev. August 4, 2011)...........................................23, 25, 26
Div. of Child & Family Servs. V. Eighth Judicial Dist Court, 92 P.3d 1239, 1242 (Nev. 2004)..............................................................................20
Friedman v. Eighth Judicial Dist Court of Nev., 127 Nev. 842, 852, 264 P.3d 1161, 1168, 2011 Nev. LEXIS 90, * 18-19, 127 Nev. Adv. Rep. 75 (Nev. November 23, 2011)................................................24
Kar v. Kar, 132 Nev. 636, 637, 378 P.3d 1204, 1204, 2016 Nev. LEXIS 653, *1, 132 Nev. Adv. Rep. 63 (Nev. August 12, 2016).....................................................31
Lathigee v. B.C. Sees. Comm'n, 477 P.3d 352, 353, 2020 Nev. LEXIS 77, * 1, 136 Nev. Adv. Rep. 79 (Nev. December 10, 2020)...................................................................24, 25
Miller v. Wilfong, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005).........................................................36
Padilla Constr. Co. of Nev., Corp. v. Bur/ey, No. 65854, at *15 (Nev. App. May 10, 2016).........................................................24
Rosenstein v. Steele, 103 Nev. 571, 572, 747 P.2d 230, 231, 1987 Nev. LEXIS 1877, *1 (Nev. December 22, 1987).................................................................................23
Slezak v. S/ezak, 2017 Nev. App. Unpub. LEXIS 298, *6, 133 Nev. 1075, 2017 WL 1829958 (Nev. Ct. App. April 28, 2017).........................................................36
State ex rel. Sisson v. Georgetta, 78 Nev. 176, 370P.2d672, 1962 Nev. LEXIS 113(1962).....................................21
State Indus, Ins. Sys. v. Sleeper, 100 Nev. 267, 269, 679 P.2d 1273, 1274(1984).....................................................30
State v. Judicial Dist. Court, 118 Nev. 609, 55 P.3d 420, 423, 118 Nev. Adv. Rep. 64 (2002)............................21
Vaile v. Eighth Jud. Dist Ct., 118 Nev. 262, 276, 44 P.3d 506, 515-16(2002)..........................................................................................................23
FEDERAL CASES
Rocha v. Florez, 2014 U.S. Dist. LEXIS 10287, *3-4, 2014 WL 317779 (D. Nev. January 28, 2014)......................................................................................30
OTHER STATE CASES
Coury v. State, 213 Tenn. 454, 455, 374 S.W.2d 397, 398, 1964 Tenn. LEXIS 405, *1 (Tenn. January 8, 1964)......................................................................................29
In re Marriage of Dedie, 255 P.3d 1142, 1143, 2011 Colo. LEXIS 551, *1 (Colo. June 27, 2011)...............29
Simmonds v. Parks, 329 P.3d 995, 1007, 2014 Alas. LEXIS 144, *28-30, 2014 WL 3537863 (Alaska July 18, 2014)..............................................................................29
STATUTES AND RULES
28 U.S.C. §1738A..........................................................................7, 9, 23, 26, 27, 29
NRS 17.340.............................................................................................................29
NRS 17.350.............................................................................................................28
NRS 17.360.............................................................................................................28
NRS 17.370.............................................................................................................28
NRS 34.020.............................................................................................................21
NRS 34.170.......................................................................................................20, 21
NRS 34.320.............................................................................................................21
NRS 34.330.............................................................................................................21
NRS 125A.085...........................................................................................................7
NRS 125A.335.....................................................................................................7, 27
NRS 125A.365.........................................................................................................28
NRS 125A.375.........................................................................................................29
ROUTING STATEMENT
This case may be presumptively assigned to the Court of Appeals as stated in NRAP 17(b)(10) because it involves a family law matter, but given the emergency nature of it and the delay that may be caused by transfer to the Court of Appeals, it should be retained by the Nevada Supreme Court.
RELIEF SOUGHT
Petitioner hereby requests that this Court direct Judge Dawn R. Throne to set aside the orders from the hearing of June 09, 2021 incident to denial of Petitioner's Opposition to Plaintiff's Motion and Countermotion to Determine Whether the California Custody Orders are Entitled to Full Faith and Credit Under the Parental Kidnapping Prevention Act and Due Process filed on June 01, 2021 concerning registration of a foreign judgment; set aside the threat of imminent arrest if Petitioner fails to turn over his son; enter a temporary restraining order that prevents the child from being removed from Nevada; set aside attorney's fees; and for judicial notice to be taken of the items referenced in Petitioner's written request filed on June 01, 2021.
ISSUES PRESENTED
1. Whether the district court abused its discretion by registering a foreign child custody determination and enforcing those orders without first affording Petitioner a substantive evidentiary hearing to address whether (i) the rendering court lacks subject matter jurisdiction; (/#) there was fraud in the procurement of the judgment; (iii) there was a lack of due process; and (iv) there are other grounds that make the judgment invalid or unenforceable.
2. Whether the district court abused its discretion in refusing to exercise subject matter jurisdiction under the UCCJEA.
3. Whether the district court erred in according the California child custody orders full faith and credit under the Parental Kidnapping Prevention Act, 28 U.S.C. §1738A.
4. Whether the district court abused its discretion in ordering an arrest warrant to issue for Petitioner if he does not relinquish custody, control and care of the minor child on June 15, 2021 by 3:00 p.m.
5. Whether the District Court erred in failing to take judicial notice upon written request.
6. Whether the District Court erred in entering an order awarding attorney's fees to the real party in interest ("Lolita").
NRAP 27(e) CERTIFICATE
A. The telephone numbers and office addresses of the attorneys for the parties
ALEX B. GHIBAUDO, P.C., Alex B. Ghibaudo, Esq., 197 E. California Ave. Ste. 250, Las Vegas, Nevada 89014, (702) 462-5888, Attorney for Petitioner.
LAW OFFICES OF FRANK J. TOT1, ESQ. Frank J. Toti, Esq. 6900 Westcliff Drive Ste. 500 Las Vegas, Nevada 89145 (702) 364-1604, Attorney for Real Party in Interest.
B. Facts showing the existence and nature of the claimed emergency
Petitioner, Kai Perry, submits this Emergency Petition for Writ of Mandamus with the following Points and Authorities. This Petition is brought pursuant to NRAP 21(a) for issuance of a Writ of Mandamus directing the Honorable Dawn R. Throne to set aside the Order regarding registration of a foreign judgment at the hearing of June 09, 2021, that will result in the indefinite removal of the child from Nevada on June 15, 2021 at 3:00pm. Counsel for Lolita was advised by the district court to bring a draft of an arrest warrant for the court to sign if Petitioner fails to produce the child at said date and time.
Petitioner certifies that to avoid the irreparable harm as a result of the minor child being taken outside of Nevada, relief is needed in less than 14 days, specifically no later than Tuesday, June 15, 2021 by 12:00 p.m. Once the child is taken to California, he is not likely to be returned and the status quo will be substantially impaired or destroyed.
C. When and how counsel for the other parties and any pro se parties were notified and whether they have been served with the motion; or, if not notified and served, why that was not done.
On June 09, 2021, Petitioners counsel sent email correspondence to the counsel of Lolita, Mr. Frank Toti, Esq., informed him of Petitioner's intent to seek emergency relief under NRAP 27(e), and advised Mr. Toti that a copy of the motion will be served at the earliest time possible. On June 11, 2021, Petitioner's counsel called the Supreme Court clerk, spoke to Linda, and advised that a writ would be forthcoming. Linda stated that she notified the Court and will be looking for it. On June 11, 2021, Petitioner's counsel called department U of the district court, inquired as to the status of the submitted order, and advised the JEA that a writ would be forthcoming.
STATEMENT OF THE FACTS
The parties have one minor child in common: K.K.P., DOB: 11/18/2013. For the first half of 2017, the parties both resided in the State of California. On June 2017, Lolita. the mother of the minor child, moved to Las Vegas with the minor child where she secured a residence and executed a lease agreement at 1020 E. Desert Inn Road, Apt. 1307, Las Vegas, Nevada 89109. On October 2017, Petitioner, the father of the minor child, joined the Lolita and the child in Las Vegas where they resided together.
On November 16, 2017, Lolita received personal service of an order for summary eviction from the Las Vegas Justice Court in connection with 1020 E. Desert Inn Road. The parties and the child then moved to 917 Desert Oak Court, Apt. D, Las Vegas, Nevada 89145. The credit history of Southwest Gas Corporation reflects that the parties were joint account holders at 917 Desert Oak Court from November 13, 2017 to July 17, 2018.
Las Vegas Justice Court case no: LVTC037242 attached as Exhibit of Appendix, Bates No. K.AI 0004-0009.
Southwest Gas bill at 917 Desert Oak Court attached as Exhibit 2 of Appendix, Bates No. KAI 0010-0011.
On February 2018, Lolita moved out of the family residence to pursue a romantic relationship with an individual known to Petitioner only as "Smokey."
Lolita maintained a residential address in Las Vegas located at 26 E. Serene Avenue, Apt. 107, Las Vegas, Nevada 89123, as reflected on the child's medical intake sheet.
Minor child's medical intake reflects Plaintiffs address as 26 E. Serene Avenue attached as Exhibit 3 of Appendix, Bates No. KAI 0019.
On July 2018, the parties reconciled and moved into a residence together located at 6008 Atlantis Dream Avenue, Las Vegas, Nevada 89139, where Lolita secured a lease agreement solely in her name. The credit history and final bill of Southwest Gas Corporation reflects that the parties were joint account holders at 6008 Atlantis Dream Avenue from July 19, 2018 until February 19, 2019.
Southwest Gas credit history and final bill at 6008 Atlantis Dream Avenue Court attached as Exhibit 4 of Appendix, Bates No. KAI 0023-0027.
On September 2018, the Lolita pursued yet another romantic relationship, with an individual identified as Marvin Cardoza. On September 13, 2018, Las Vegas Metropolitan Police Department ("LVMPD") responded to a domestic dispute at 6008 Atlantis Dream Avenue, where the parties were present, and the LVMPD CAD report reflects, "Both arguing about Kai need to moving out. Rimson was given blue card. Both parties agreed that Rimson is to stay on the third floor and Kai on the first floor." On November 26, 2018, LVMPD responded to yet another domestic dispute between the parties at 6008 Atlantis Dream Avenue where the report indicates that Lolita allegedly pushed Petitioner down a flight of stairs. Petitioner moved out and, on December 2018, secured a new residence for himself and the minor child at 9750 Peace Way, Apt. 2028, Las Vegas, Nevada 89147. Lolita resumed dominion and control over 6008 Atlantis Dream Avenue, where she resided with Marvin Cardoza.
LVMPD CAD report of September 13, 2018 attached as Exhibit 5 of Appendix, Bates No. KAI 0028-0029.
LVMPD Report No: LLV181100116983 dated November 26, 2018 attached as Exhibit 6 of Appendix, Bates No. KAI 0030-0031.
On December 24, 2018, an eviction was filed against Lolita in the Las Vegas Justice Court. Attached to said filing is a Nevada lease agreement executed solely by Lolita. On December 27, 2018, an order for summary eviction was issued to Lolita concerning 6008 Atlantis Dream Avenue. Lolita, together with Marvin Cardoza, then relocated to Riverside, California. Petitioner and the minor child remained in Nevada.
Nevada lease agreement executed by Plaintiff attached as Exhibit 7 of Appendix, Bates No. KAI 0038-0050.
See Exhibit 1 of Appendix, Bates No. KAI 0004-0009, Las Vegas Justice Court case no: 18LVTC037831.
On January 14, 2019, Petitioner filed initial child custody proceedings in Nevada. Personal service of the Nevada proceedings was subsequently effectuated upon Lolita on February 08, 2019.
On February 07, 2019, Lolita filed a competing initial child custody proceeding in the State of California. Lolita enlisted the help of her friend, Monica M. Hernandez, a private party who allegedly effectuated personal service of the California proceedings upon Petitioner on February 08, 2019 in the State of California. In fact, the address depicted on the proof of service belongs to the mother of Petitioner's child from a previous relationship, Jacqueline Hoffman. California court documents from those unrelated child custody proceedings confirm this much on the face of the caption. Mrs. Hoffman resides with her husband at 1130 Woodcrest Avenue, Fullerton, California 92833. Petitioner has never resided at said address nor was he physically present at said location on February 08, 2019.
Affidavit of Service of Monica M. Hernandez attached as Exhibit 8 of Appendix, Bates No. KAI 0051-0053.
California court documents that reflect Jacqueline Hoffman (and not Defendant) resided at 1130 Woodcrest Avenue attached as Exhibit 9 of Appendix, Bates No. KAI 0055.
Teresa S. Solis submitted a notarized declaration that Petitioner was present in Nevada when Monica Hernandez alleged she effectuated service upon him in California.
Declaration of Teresa S. Solis attached as Exhibit 10 of Appendix, Bates No. KAI 0064-0067.
Based on such conduct by Lolita and her accomplice, Monica M. Hernandez, on April 09, 2019, the California court entered a default child custody judgment in favor of Lolita. Indeed, Petitioner has never missed a court date for which he received notice.
Register of Actions for Riverside Superior Court case no: FLRJ900945 attached as Exhibit 11 of Appendix, Bates No. KAI 0068-0123.
On May 02, 2019, Lolita requested temporary emergency temporary orders from the California court. On May 06, 2019, Petitioner was present at hearing in California without counsel and that court indicated, "This Court is taking emergency jurisdiction." The California court further directed Plaintiff to "drive out to Las Vegas today to retrieve the minor child
See Exhibit 11 of Appendix, Bates No. KAI 074, entry of 5/06/2019.
."
Indeed, the minor child was not physically present in California when the California court entered temporary emergency orders.
See Exhibit 11 of Appendix, Bates No. KAI 074, entry of 5/06/2019.
On May 28, 2019, the California court found "[T]here is a hearing scheduled on 6/10/2019 with Judge Ritchie in Department H in Las Vegas. This Court needs to have a UCCJEA conference with [Judge Ritchie] in Las Vegas in order to determine which Court has jurisdiction ."
See Exhibit 11 of Appendix, Bates No. KAI 0078, entry of 5/28/2019.
On June 10, 2019, the Nevada court entered a minute order that indicated, "Court noted since July, 2017, Nevada has been the home state..."
Nevada Court minute order of June 19, 2019 attached as Exhibit 12 of Appendix, Bates No. KAI 0125-0126.
On June 26, 2019, the California register of actions reflects that an off-the-record UCCJEA judicial conference occurred with Nevada. On November 13, 2019, an on-the-record hearing was held in California, where the following exchanges occurred:
See Exhibit 11 of Appendix, Bates No. KAI 0080, entry of 6/26/2019.
CALIFORNIA COURT: Whether or not [Dad] was a resident of Nevada is one thing, under UCCJEA. the residence of the parents is not the test, the residence of the child is the test. And so when we're talking about UCCJEA jurisdiction, we are talking about where the child has resided for six months, except in an emergency situation.
CALIFORNIA COURT: For better or for worse, I have just decided I don't think we need a 217 hearing. I don't think we need to take evidence on the motion. It is denied. Counsel prepare an order.
CALIFORNIA COURT: California is jurisdictional!)' able to determine what's in that kid's best interest. So, basically, we want him to come back here so we can figure out what's in his best interest. Changing schools in the middle of the school year does not bother me particularly.
Transcript of November 13, 2019 California hearing attached as Exhibit 14 of Appendix, Bates No. KAI 0147, lines 20-25.
See Exhibit 14 of Appendix, Bates No. KAI 0149, lines 18-21.
See Exhibit 14 of Appendix, Bates No. KAI 0158, lines 16-20.
On January 14, 2020, Lolita was present in the California court and Petitioner was present in the Nevada court where Judge Gerrard (CA) and Judge Ritchie (NV) conducted a UCCJEA conference. The following exchanges occurred at said conference:
Transcript of January 14, 2020 UCCJEA conference attached as Exhibit 15 of Appendix, Bates No. KAI 0162-0207.
THE NEVADA COURT: Yeah. Well, f take your comments to mean that California did consider on the merits, Dad's allegations that they moved to Nevada in 2017, and that that was resolved on the merits, and that California has determined that you're the home state; right?
THE CALIFORNIA COURT: Well, not exactly....But as far as I can see, it does not look like the merits were decided as to Dad's living situation, and what state he was living in, at what time or even where the child was, at the time.
MR. WESTOVER [Defendant's CA Counsel]: I was able to get more minutes, there's the Court minute order from Nevada on a June 10th hearing where, at least, my reading, it seems as though the Court in Nevada made a determination that Nevada has been the home state since July 2017. And that there's a prima facie case for jurisdiction. That's a June 10th minute order that was two weeks before the UCCJEA conference on the phone that the Court had with the Court in Nevada.....I believe, two or three spots, both judicial officers seem to address the fact that there needed to be an evidentiary hearing on where this child lived during those six months.....And, on November 13th, here, 1 think, the Court is correct in saying there wasn't a true evidentiary hearing. It wasn't on its merits, hence, our appeal.
MR. WESTOVER: However, my proposal, what I think would be faster and more expeditious for the parties and for the child, as the Court correctly said, and I did discuss this a little bit with Ms. Claypool, is if the Court was to effectively hold a new hearing on that, I think, procedurally, we would be vacating November 13th, and resetting that motion to calendar. We could have a hearing on that, we could avoid the appeal, and there can be a final decision one way or another. Whether that happens here, because our motion to set aside was filed here, or it happens in Nevada under the UCCJEA, Family Code 3412, or Las Vegas it's I255A.295, that evidentiary hearing could be held and should be held so that one of the two courts can decide (he jurisdictional issue on the merits.
THE NEVADA COURT: So the reference to the prima facia case goes to saying that if Dad's allegations are true, then Nevada would be the home state. And that's without regard to any information that was provided by Mom. Nevada has not issued any contradictory orders to California and has not had any evidentiary findings, any evidentiary proceedings concerning the dispute concerning home state.....But I do think that one of us needs to make a finding on the record about the merits so that, at least, the record would be clear for the parties to challenge any kind of finding.
THE CALIFORNIA COURT: [Mom] purports under the UCCJEA form we have here that the child lived in Moreno Valley. California, which is a citv in Riverside County and purports that the child was always living -- residing in California.
MR. WESTOVER: I will, your Honor. And then on the one other issue. I still have time to file a 2122 motion, perhaps, I will do that so that it's, at least, on calendar as well. I'm well within the one-year time limit for that for perjury. So I'll do that so that it gives the Court an additional basis tor jurisdiction to look at this.
THE CALIFORNIA COURT: But I am totally in the dark. It sounds like Nevada has our documents, but I don't have anything here. And whether that was somewhat of concern to Judge Naughton when he dismissed Dad's motion, I don't know.....1 have broad discretion. I just want to make sure this covers the discretion I have. I'm not 100 percent confident it does. So I'm going to do my own research. I don't know. It's simply I just don't know.
THE CALIFORNIA COURT: I think you said perfectly, Judge Ritchie, is no Court wants to make any orders that are based off a mistake of fraud or anything. I don't want to do that either....And so my thought process in asking that question was if it's going to be more efficient and Mom is going to be able to see the child in Nevada, then I would have Nevada do the evidentiary hearing (emphasis added).
See Exhibit 15 of Appendix, Bates No. KAI 0171, line 13 to Bates No. KAI 0072, line 1.
See Exhibit 15 of Appendix, Bates No. KAI 0181, lines 13-24.
See Exhibit 15 of Appendix, Bates No. KAI 0184, lines 10-22.
See Exhibit 15 of Appendix, Bates No. KAI 0185, lines 6-22.
See Exhibit 15 of Appendix, Bates No. KAI 0191, lines 18-22.
See Exhibit 15 of Appendix, Bates No. KAI 0203, lines 14-19.
See Exhibit 15 of Appendix, Bates No. KAI 0200, lines 1-22.
See Exhibit 15 of Appendix, Bates No. KAI 0188, lines 12-25.
Petitioner's California counsel informed the Court that the parties resided in Las Vegas, there was no service, and the lack of service is fatal to subject matter jurisdiction in California.
See Exhibit 15 of Appendix, Bates No. KAI 0181, line 16 to Bates No. KAI 0183, line 1.
On July 13, 2020, the California court indicated that, "The jurisdictional issue(s) in this case have already been ruled on and decided; Two judicial officers. Judge Jennifer Gerrard and the court on November 13, 2019, have found California to have jurisdiction over this matter.''
California order filed July 13, 2020 attached as Exhibit 13 of Appendix, Bates No. KAI 0128-0133.
From August 27, 2020 to February 01, 2021, the minor child was diagnosed for a mental health assessment and therapy related to the domestic violence he observed between the parents and sexual abuse from his stepbrother.
Findings of Dr. Pam Glovsky, LCPC attached as Exhibit 16 of Appendix, Bates No. KAI 0208-0213.
Evidence concerning the child's school and medical care are located in Nevada.
Evidence of the minor child's education and medical care in Nevada attached as Exhibt 17 of Appendix, Bates No. KAI 0214-0232.
On June 01, 2021, Petitioner filed a motion in the district court and requested an evidentiary hearing to determine whether the California custody orders were entitled to full faith and credit enforcement under the PKPA. On June 09, 2021, hearing was held, but no evidentiary hearing was conducted on the merits of Petitioner's challenge to subject matter jurisdiction or whether the California custody orders are entitled to full faith and credit. Rather, Petitioner was summarily ordered to turn over the child by 3:00 p.m. on June 15, 2021 or else a warrant would be issued for his arrest.
STANDARD FOR WRIT
A writ of Mandamus is an extraordinary remedy that may issue if the Petitioner has no plain, speedy, and adequate remedy at law. NRS 34.170. The writ generally serves to "compel the performance of an act that the law requires as a duty resulting from an office, trust or station, or to control an arbitrary or capricious exercise of discretion." Id.. Even where an alternative remedy exists this Court may entertain a petition for mandamus under urgent circumstances or "when an important issue of law needs clarification and sound judicial economy and administration favor the granting of the petition. Div. of Child & Family Servs. v. Eighth Judicial Dist. Court, 92 P.3d 1239, 1242 (Nev. 2004); citing State v. Judicial Dist. Court, 118 Nev. 609, 55 P.3d 420, 423, 118 Nev. Adv. Rep. 64 (2002).
A writ of prohibition is the counterpart of a writ of mandamus and is available to arrest "the proceedings of any tribunal...when such proceedings are without or in excess of the jurisdiction of such tribunal. NRS 34.320. A writ of prohibition is available to ensure that a district court operates within its jurisdiction. NRS 34.320; Cheung v. Eighth Judicial Dist Court of Nev., 121 Nev. 867, 869 (Nev. 2005). Prohibition and mandamus are proper remedies to require a district judge to refrain from further proceedings and to transfer the case upon his disqualification by affidavit of prejudice. State ex rel Sisson v. Georgetta, 78 Nev. 176, 370 P.2d 672, 1962 Nev. LEXIS 113(1962).
A Writ of Mandamus is available "to compel the performance of an act that the law requires as a duty resulting from an 'office, trust or station' or to control an arbitrary or capricious exercise of discretion." Writs of Prohibition are "the counterpart of the Writ of Mandamus." It arrests the proceeding of any "tribunal, corporation, board or person exercising judicial functions, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person." Such writs may be issued when no plain, speedy and adequate remedy exists in the ordinary course of law. The Nevada Supreme Court has held:
See Cheung v. Dist Ct, 121 Nev 867, 868-69, 124 P.3d 550, 552 (2005) (quoting NRS 34.160).
See NRS 34.320.
See NRS 34.020; NRS 34.170; NRS 34.330.
"As a writ protection seeks an extraordinary remedy, we will exercise our discretion to consider such a petition only where there is no "plain, speedy, and adequate remedy in the ordinary course of law" or there are either urgent circumstances or important legal issues that need clarification in order to promote judicial economy and administration."
See Cheung v. Dist. Ct, 124 P.3d at 552.
Here, there is no plain, speedy and adequate remedy at law. Petitioner was given until June 15, 2021 by 3:00 pm to turn over the child to Lolita to be taken to California subject to the jurisdiction of the California courts, and an arrest warrant will issue for Petitioner if he does not turn over the child by said date and time.
A WRIT IS WARRANTED ON THE MERITS
A. SUMMARY OF ARGUMENT
The district court erred when it refused to grant Petitioner a substantive evidentiary hearing for his challenge to subject matter jurisdiction of the foreign child custody orders, notwithstanding California's authorization for Nevada to conduct said hearing. Petitioner protests the registration of the foreign judgment on the basis of: (i) lack of subject matter jurisdiction of the California court; (ii) lack of notice to Petitioner of the California proceedings; (iii) fraud in the procurement of the California judgment; (iv) lack of an evidentiary hearing to determine factual disputes as to subject matter jurisdiction; and (v) Nevada is the more convenient forum.
See Rosenstein v. Steele, 103 Nev. 571, 572, 747 P.2d 230, 231, 1987 Nev. LEXIS 1877, *1 (Nev. December 22, 1987)(motion seeking to set aside the judgment and to stay its enforcement.).
The district court abused its discretion in according the California custody orders full faith and credit under the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A and Adams v. Adorns, 107 Nev. 790, 791, 820 P.2d 752, 753, 1991 Nev. LEXIS 169, *1 (Nev. November 5, 1991).
The district court abused its discretion in ordering an arrest warrant to be issued for Petitioner if he does not turn the child over to Lolita by 3:00 pm on June 15, 2021.
The district court abused its discretion in awarding Lolita attorney's fees.
First, questions of jurisdiction are never waived and may be raised at any time, even sua sponte by the Court on appeal. See generally Ba I dona do v. Wynn Las Vegas, LLC, 124 Nev. 951, 964-65, 194 P.3d 96, 105 (2008); Voile v. Eighth Jud. Dist. Ct., 118 Nev. 262, 276, 44 P.3d 506, 515-16 (2002). This is so because questions of jurisdiction go to whether the court has the fundamental power to grant the requested relief and enforce its own judgment. Padilla Constr. Co. of Nev.. Corp. v. Burley, No. 65854, at *15 (Nev. App. May 10, 2016). "Subject matter jurisdiction under the UCCJEA cannot be waived or conferred by agreement or estoppel or judicial admission." Friedman v. Eighth Judicial Dist. Court of Nev., 127 Nev. 842, 844, 264 P.3d 1161, 1163, 2011 Nev. LEXIS 90, *1, 127 Nev. Adv. Rep. 75 (Nev. November 23, 2011).
1. Whether the District Court Erred in Registering the Foreign Judgment
"Under comity, Nevada courts will not recognize a judgment or order of a sister state if there is a showing of fraud, lack of due process, or lack of jurisdiction in the rendering state. But otherwise, comity may be appropriately invoked according to the sound discretion of the court acting without obligation, (reviewing grant of comity for abuse of discretion)." Lathigee v. B.C. Sees. Comm'n, 477 P.3d 352, 353, 2020 Nev. LEXIS 77, * 1, 136 Nev. Adv. Rep. 79 (Nev. December 10, 2020).
Here, the district court's basis for denying Petitioner's challenge to the potentially void foreign judgment was that it is untimely. The issue of subject matter jurisdiction may be raised at any time, even on appeal. Not all judgments are entitled to full faith and credit in Nevada. Notably, defenses such as lack of personal or subject-matter jurisdiction of the rendering court, fraud in the procurement of the judgment, lack of due process, satisfaction, or other grounds that make the judgment invalid or unenforceable may be raised by a party seeking to reopen or vacate a foreign judgment.
Baldonado v. Wyrm Las Vegas, LLC, 124 Nev. 951, 964-65, 194 P.3d 96, 105 (2008).
City of Oakland v. Desert Outdoor Adver., Inc., 127 Nev. 533, 534, 267 P.3d 48, 49, 2011 Nev. LEXIS 54, * 1, 127 Nev. Adv. Rep. 46 (Nev. August 4, 2011).
Judicial officers from each state court have made representations that Petitioner would receive an evidentiary hearing regarding the factual jurisdictional disputes, then assigned the matter to new judicial officers who then vacated those representations. Judge Ritchie made a prima facie finding that Nevada is the home state. The evidentiary exhibits presented by Petitioner unequivocally establish that the parties and the child were residing in Nevada for more than six consecutive months prior to commencement of child custody proceedings.
See Exhibit 12 of Appendix, Bates No. KAI 0125-0126.
No substantive hearing was held and the hearings that were held only discussed the occurrence of a future evidentiary hearing. To date, no true evidentiary hearing has been conducted in either California or Nevada, yet the district court registered the foreign judgment notwithstanding Petitioner's protest as to (i) lack of subject matter jurisdiction; (ii) lack of notice; and (iii) fraud, (iv) and any other grounds that make the foreign judgment invalid or unenforceable.
See City of Oakland v. Desert Outdoor Adver., Inc., 127 Nev. 533, 537-538, 267 P.3d 48, 51, 2011 Nev. LEXIS 54, *8-9, 127 Nev. Adv. Rep. 46 (Nev. August 4, 2011).
Because no evidentiary hearing has yet been conducted, Petitioner, had no opportunity to dispose of all issues related to the jurisdictional dispute, and no adequate record was created for future consideration by the appellate courts. Factual jurisdictional disputes remain outstanding.
2. Whether the District Court Abused its Discretion in Failing to Exercise Subject Matter Jurisdiction
HOME STATE JURISDICTION
Under NRS 125A.305 and the PKPA 28 U.S.C. §1738A(c)(1)(2)(a), a court of this State has jurisdiction to enter an initial child custody determination if Nevada was the home state of the child within six months before the commencement of the proceeding. California has a substantially identical code referenced as 3421 (a)(1).
Here, Petitioner has been afforded no opportunity to establish facts for the district court to determine where the child was residing six months preceding the commencement of child custody proceedings. If given an opportunity to present the same, it will be evident that Nevada is the home state of the child and the orders entered in California were not made in conformity with its own state laws or the PKPA, rendering the California orders void ab initio.
TEMPORARY EMERGENCY JURISDICTION
Under NRS 125A.335 and the PKPA 28 U.S.C. §1738A(c), Nevada may exercise temporary emergency jurisdiction if the child is physically present in this State and it is necessary in an emergency to protect the child who is subjected to or threatened with mistreatment or abuse. Petitioner's attempt to file a child abuse complaint against Lolita with CPS was not effective because the child was in Petitioner's physical care. Indeed, the child was treated by a therapist due to sexual abuse at the hands of the child's step-sibling. The district court abused its discretion in allowing these findings to fall on deaf ears. Certainly, the district court is not prevented from exercising temporary emergency jurisdiction. California, on the other hand, was without jurisdiction to enter temporary emergency orders under its own state law, code 3424, and the PKPA, because the child was not physically present in California when temporary emergency orders were entered. The California custody orders are not entitled to full faith and credit enforcement.
See Exhibit 16 of Appendix, Bates No. KAI 208-213.
INCONVENIENT FORUM
Nevada and California have substantially identical codes in NRS 125A.365 and FAM §3427 to determine the more convenient forum. Substantial evidence was presented by Petitioner to demonstrate Nevada is the more convenient forum, including, but not limited to evidence of domestic violence located in Nevada. Under the UCCJEA, the district court should have exercised jurisdiction, to ensure that another more appropriate forum existed to resolve the dispute; hence, it is necessary to remand the case to determine whether jurisdiction was warranted under NRS 125A305(1)(a).
See Exhibit 5 and 6 of Appendix, Bates No. KAI 0028-0031.
See Kar v. Kar, 132 Nev. 636, 637, 378 P.3d 1204, 1204, 2016 Nev. LEXIS 653, *1, 132 Nev. Adv. Rep. 63 (Nev. August 12, 2016).
UNJUSTIFIABLE CONDUCT
Nevada and California have substantially identical codes in NRS 125A.375 and FAM §3428 to determine whether jurisdiction shall be declined if the conduct that created the jurisdiction was by way of fraud. But for the conduct of Lolita in creating jurisdiction in California, Nevada would have no impediment in exercising jurisdiction. Petitioner never resided nor was he present at the address where service was allegedly effectuated on him in California.
3. Whether the District Court Abused its Discretion in According Full Faith and Credit to the California Custody Orders
The provisions of NRS 17.340 to 17.370, inclusive, govern the registration of foreign judgments. Particularly, NRS 17.370 provides that "if the judgment debtor shows the court that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded."
Here, an appeal from the foreign judgment is pending and a stay is appropriate, albeit the request for stay was also denied. The decision to accord full faith and credit to the foreign custody order appears to have been made summarily, without ever really addressing the merits despite the fact that Petitioner has raised his contentions in several pleadings and hearings. Petitioner has clearly alleged that he did not receive notice of the California proceedings. Petitioner has attacked the jurisdiction of the California courts from the onset. Other jurisdictions provide persuasive guidance concerning the full faith and credit clause of the PKPA. "The State of the forum has at least as much leeway to disregard the custody decree, to qualify it, or to depart from it as does the State where it was rendered." Coury v. State, 213 Tenn. 454, 455, 374 S.W.2d 397, 398, 1964 Tenn. LEXIS 405, *1 (Tenn. January 8, 1964). "Hence, the Parental Kidnaping Prevention Act of 1980, 28 U.S.C.S. § 1738A, did not require Colorado to accord full faith and credit to the New York supreme court custody modification determination. The Colorado trial court erred in ordering enforcement of the New York custody modification determination." In re Marriage of Dedie, 255 P.3d 1142, 1143, 2011 Colo. LEXIS 551, * I (Colo. June 27, 2011). "[Concluding that the Minto Tribal Court's judgment terminating Parks's parental rights was not entitled to full faith and credit under ICWA's § 1911(d) because the tribal court violated minimum due process." Simmonds v. Parks, 329 P.3d 995, 1007, 2014 Alas. LEXIS 144, *28-30, 2014 WL 3537863 (Alaska July 18, 2014).
Assuming arguendo, that the California child custody determination is entitled to full faith and credit (and it is not), the California court did authorize an evidentiary hearing to be conducted in Nevada regarding the jurisdictional dispute. If the district court's position is that the California orders are entitled to full faith and credit, then full compliance should be accorded to California's authorization for Nevada to conduct an evidentiary hearing in this State.
See Exhibit 15 of Appendix, Bates No. KAl 0188, lines 12-25.
Nothing in the statute appears to prevent a temporary restraining order without notice that maintains the status quo as to physical custody itself-as Petitioner seeks here-where such an order is otherwise appropriate under NRCP 65(b). The statute requires notice only "[b]efore a child custody or visitation determination is made ...." Id. The temporary restraining order Petitioner seeks preventing [the real party in interest] from removing the child from the State of Nevada before the hearing to determine the issue is manifestly not itself a decision as to child custody or visitation. Rocha v. Florez, 2014 U.S. Dist. LEXIS 10287, *3-4, 2014 WL 317779 (D. Nev. January 28, 2014).
E. Whether the District Court Abused its Discretion in Ordering an Arrest Warrant to be Issued for Petitioner
"Lack of subject matter jurisdiction renders a judgment void. One may not be held in contempt of a void order." State Indus. Ins. Sys. v. Sleeper, 100 Nev. 267, 267, 679 P.2d 1273, 1274, 1984 Nev. LEXIS 367, *1 (Nev. April 25, 1984). Here, Petitioner's Fourth and Sixth Amendment right to be free from unreasonable seizure has been compromised on the basis of a void foreign judgment. Petitioner has not been afforded an evidentiary hearing to determine whether he is in violation of a foreign judgment and the threat of arrest was summarily ordered by the district court.
F. Whether the District Court Abused its Discretion in Failing to Take Judicial Notice Upon Petitioner's Request
The provisions of NRS 47.130 provide that facts subject to judicial notice are those generally known within the territorial jurisdiction of the trial court; or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, so that the fact is not subject to reasonable dispute. The provisions of NRS 47.150 provide that a judge shall take judicial notice if requested by a party and supplied with the necessary information. The provisions of NRS 47.160 provide that a party who requests judicial notice is entitled to an opportunity to be heard. Petitioner's request for judicial notice reflects the text: "Hearing Requested" and was filed contemporaneously with his Motion that is the subject of this writ.
G. Whether the District Court Abused its Discretion in Awarding Attorney's Fees to the Real Party in Interest
This court reviews an award of attorney fees for abuse of discretion. Miller v. Wilfonz, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005). Moreover, when awarding attorney fees in family law cases, the district court is required to "consider the disparity of income of the parties!.)" Id. at 623, 119 P.3d at 730. Further, the district court must consider the factors set forth in Brunzell v. Golden Gate National Bank, 85 Nev. 345, 455 P.2d 31 (1969). Miller, 121 Nev. at 623, 119P.3dat730.
Here, the district court failed to consider the disparity of income of the parties. Particularly since Petitioner has been forced to retain additional counsel in the State of California to defend against the foreign judgment and a new fee to file the instant writ. In addition. Petitioner has been the sole caretaker of the minor child since Lolita relocated to California.
CONCLUSION
For the reasons stated above, Petitioner respectfully requests this Honorable Court to intervene and issue a writ that restrains and prevents: (i) the registration of the California judgment; (ii) removal of the minor child from Nevada; (iii) issuance of an arrest warrant to Petitioner for not turning the child over to Lolita by June 15, 2021 at 3:00 p.m.; (iv) attorney's fees from Petitioner; and (v) take judicial notice of Petitioner's requests.
VERIFICATION ALEX B. GHIBAUDO, ESQ. , declares under penalty of perjury under the law of the State of Nevada that:
1. I am an attorney duly licensed to practice law in the State of Nevada; I am employed by Alex B. Ghibaudo, P.C.; and I am the attorney representing the Petitioner, Kai Perry.
2. This Petition must be heard no later than 12:00 p.m. on June 15, 2021 because once the minor child is removed from Nevada, it will cause irreparable harm.
3. I have read the preceding filing, and know the contents thereof; that the same is true of my own knowledge, except those matters stated therein upon information and belief, and as to those matters I believe them to be true.
4. All grounds in support of the Motion were previously submitted to the district court, albeit without a true evidentiary hearing afforded Petitioner.
5. That the foregoing motion is not frivolous or interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
CERTIFICATE OF COMPLIANCE
1. I hereby certify that this brief complies with the formatting requirements of NRAP 32(a)(4), the typeface requirements of NRAP 32(a)(5) and the type style requirements of NRAP 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word-Office 365 Business in font type Times New Roman size 14.
2. T further certify that this brief complies with the page-or type- volume limitations of NRAP 32(a)(7) because, excluding the parts of the brief exempted by NRAP 32(a)(7)(C), it is either:
[X] Proportionately spaced, has a typeface of 14 points or more and contains 6970 words; or
[ ] Monospaced, has 10.5 or fewer characters per inch, and contains _____ words or ______ lines of text; or
[ ] Does not exceed _______ pages.
3. Finally, I hereby certify that J have read this appellate brief, and to the best of my knowledge, information, and belief, it is not frivolous or interposed for any improper purpose. I further certify that this brief complies with all applicable Nevada Rules of Appellate Procedure, in particular NRAP 28(e)(1), which requires every assertion in the brief regarding matters in the record to be supported by a reference to the page and volume number, if any, of the transcript or appendix where the matter relied on is to be found. I understand that I may be subject to sanctions in the event that the accompanying brief is not in conformity with the requirements of the Nevada Rules of Appellate Procedure.