Phillips v. Phillips ( 2022 )


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  •                         IN THE SUPREME COURT OF THE STATE OF NEVADA
    TODD MATTHEW PHILLIPS,                                No. 82414
    Appellant,
    FILE
    vs.                                                                      APR 2 9 2022
    AMBER PHILLIPS, N/K/A AMBER
    EUZABETH A. BROWN
    KORPAK,                                                                   . pUPREASC COURT
    CLESUipF
    Res • ondent.                                                      13Y   IL‘
    F1'UT,
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    Ati)
    TODD MATTHEW PHILLIPS,                               / No. 82693
    Appellant,
    vs.
    AMBER PHILLIPS, N/K/A AMBER
    KORPAK,
    Respondent.
    ORDER OF AFFIRMANCE
    These appeals challenge a district court child custody order
    (Docket No. 82414) and an award of attorney fees (Docket No. 82693) arising
    from divorce proceedings. Eighth Judicial District Court, Clark County;
    Vincent Ochoa, Judge. After an evidentiary hearing on custody of the
    parties' minor child, the district court awarded sole legal and primary
    physical custody to respondent Amber Phillips and awarded her attorney
    fees. Appellant Todd Matthew Phillips now challenges these
    determinations on various grounds.
    'Pursuant to NRAP 34(0(1), we have determined that oral argument
    is not warranted in Docket No. 82414. And, having considered the pro se
    opening brief filed in Docket No_ 82693, we conclude that a response is not
    necessary, NRAP 46A(c), and that oral argument is not warranted, NRAP
    34(0(3). We therefore have decided the appeal in Docket No. 82693 based
    on the pro se brief and the record. Id.
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    Child custody order (Docket No. 82414)
    We first address the child custody order, which we review for
    an abuse of discretion. See Wallace v. Wallace, 
    112 Nev. 1015
    , 1019, 
    922 P.2d 541
    , 543 (1996). "In reviewing child custody determinations, we will
    not set aside the district courfs factual findings if they are supported by
    substantial evidence, which is evidence that a reasonable person may accept
    as adequate to sustain a judgment." Ellis v. Carucci, 
    123 Nev. 145
    , 149, 
    161 P.3d 239
    , 242 (2007) (footnote omitted).
    Todd first challenges the district court's use of NRS
    1250.0035(5)s best-interest rebuttable presumption based on domestic
    violence to support its decision, arguing that it improperly relied on a 2018
    temporary protection order (TP0) action to find that he engaged in one or
    more acts of domestic violence.2 But the district court appropriately relied
    2 NRS   125C.0035(5) provides:
    Except as otherwise provided in subsection 6 or
    NRS 125C.210, a determination by the court after
    an evidentiary hearing and finding by clear and
    convincing evidence that either parent or any other
    person seeking physical custody has engaged in one
    or more acts of domestic violence against the child,
    a parent of the child or any other person residing
    with the child creates a rebuttable presumption
    that sole or joint physical custody of the child by the
    perpetrator of the domestic violence is not in the
    best interest of the child. Upon making such a
    determination, the court shall set forth:
    (a) Findings of fact that support the determination
    that one or more acts of domestic violence occurred;
    and
    (b) Findings that the custody or visitation
    arrangement ordered by the court adequately
    2
    on the proceedings from the TPO action, by way of judicial notice, as they
    addressed issues relevant to the child custody determination and satisfied
    the requirements for judicial notice of records in closely-related cases.3 See
    NRS 47.150(1) (providing that a court may take judicial notice sua sponte);
    NRS 47.130(2) (providing that a judicially-noticed fact must be Iclapable of
    accurate and ready determination by resort to sources whose accuracy
    cannot reasonably be questioned"); NRS 125C.0035 (listing factors to
    consider in child custody determinations, including "the level of conflict
    between the parents," the parents ability to cooperate, and "[w]hether
    either parent . . . has engaged in an act of domestic violence against . . . any
    other person residing with the child"); Mack v. Estate of Mack, 
    125 Nev. 80
    ,
    91-92, 
    206 P.3d 98
    , 106 (2009) (noting an exception to the general rule
    protects the child and the parent or other victim of
    domestic violence who resided with the child.
    3Indeed,  the district court was required to consider the TPO action as
    proceedings impacting the district court's custody determination, see NRS
    125A.355(2) (stating that "a court of this state, before hearing a child
    custody proceeding, shall examine the court documents and other
    information supplied by the parties pursuant to NRS 125A.385); NRS
    125A.385 (setting forth required disclosures regarding other proceedings
    impacting child custody), and Todd fails to show the judicial notice violated
    his procedural due process rights, see J.D. Constr., Inc. v. II3EX Int? Grp.,
    
    126 Nev. 366
    , 376, 
    240 P.3d 1033
    , 1040 (2010) (explaining due process
    requirements). Finally, Todd's substantive challenges to the TPO are
    irrelevant as it has expired and is not before us on appeal, see In re Temp.
    Custody of Five Minor Children, 
    105 Nev. 441
    , 444, 
    777 P.2d 901
    , 902 (1989)
    (holding that no appeal may be taken from a temporary order subject to
    periodic mandatory review), and claim preclusion does not bar the finding
    of domestic violence in this case as child custody was not an issue in the
    TPO action, see Five Star Cap. Corp. v. Ruby, 
    124 Nev. 1048
    , 1052, 
    194 P.3d 709
    , 711 (2008) (setting forth a three-factor test for determining when claim
    preclusion bars a claim in a subsequent case), holding modified on other
    grounds by Weddell v. Sharp, 
    131 Nev. 233
    , 
    350 P.3d 80
     (2015).
    3
    against taking judicial notice of records in another case where the closeness
    of the cases and the particular circumstances warranted it). Moreover, the
    evidence in the TPO action supports the district court's application of
    125C.0035(5)s best-interest rebuttable presumption, as it provided
    substantial evidence that Todd engaged in one or more acts of domestic
    violence against Amber. This evidence included that Amber was fired from
    a job based on safety concerns relating to Todd's conduct; and two
    restraining orders obtained against Todd by Amber and another woman in
    California. In addition to the evidence and findings made in the TPO action,
    the record contains documents from the child's school in response to the trial
    subpoena, which included a letter to the school's security site supervisor by
    the school's counsel. This letter alerted the supervisor to Todd's hostile
    language and demeanor, and to threats Todd allegedly made to shoot Amber
    and their child. Combined with Amber's testimony regarding various
    instances of abuse, deemed credible by the district court, and Todd's failure
    to meaningfully rebut this presumption,4 the district court did not abuse its
    discretion by applying NRS 125C.0035s presumption to find that giving
    Todd physical custody of the child would not be in the child's best interest.5
    See Castle v. Simmons, 
    120 Nev. 98
    , 102-03, 
    86 P.3d 1042
    , 1045-46 (2004)
    4Todd   did not request any transcripts, see NRAP 3E(c)(2)(A)
    (requiring appellant to file and serve a transcript request form "[w]hen a
    transcript is necessary for an appear), and states that his arguments can
    be resolved without transcripts. We do not address if the district court erred
    by ignoring evidence of a police report because Todd fails to show that he
    attempted to introduce the report at trial.
    5We  need not address Todd's arguments regarding NRS 432B.157s
    custodial presumption regarding domestic violence because this case did not
    involve Chapter 432B proceedings.
    4
    (explaining that the district court analyzes NRS 125C.0035(5)s rebuttable
    presumption based on a totality of the evidence and further holding that
    "we will not reweigh the credibility of wi.tnesses on appear). And because
    Todd does not otherwise contest the district court's specific findings on the
    NRS 125C.0035 best-interests-of-the-child factors, we conclude that the
    district court did not abuse its discretion in its child custody determination.6
    See Wallace, 112 Nev. at 1019, 
    922 P.2d at 543
    ; Castle, 120 Nev. at 102-03,
    
    86 P.3d at 1045-46
    .
    Todd also claims that the custody order violated SCR 251,
    which states that the district court shall "resolve the issues affecting the
    custody or visitation of the child or children within six months of the date
    that such issues are contested by the filing of a responsive pleading that
    contests the custody or visitation issues." However, the rule further allows
    extensions of time for "[e]xtraordinary cases that present unforeseeable
    circumstancee so long as the district court enters "specific findings of fact
    regarding the circumstances that justify the extension of time." 
    Id.
     Here,
    the district court made the required findings to justify an extension of time,
    and the record supports those findings, including that Todd sought several
    extensions of time, including four requests to continue the trial; that he
    6Todd further claims that the district court committed fraud by
    including a recitation of Amber's testimony in its order stating that
    "[Amber] learned that [Todd] made phone calls to the child's school and
    threatened to shoot up the school which resulted in the lockdown." He asks
    that we excise this from the custody order. In context, the district court was
    reciting Amber's testimony at the evidentiary hearing. Furthermore, the
    TPO evidence, properly admitted by the district court, and school records
    otherwise support this finding. See Wallace, 112 Nev. at 1019, 
    922 P.2d at 543
    ; Castle, 120 Nev. at 102-03, 
    86 P.3d at 1045-46
    . Thus, we reject Todd's
    contention.
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    caused further delay by filing several failed motions to disqualify the
    presiding judge; and that the Covid-19 pandemic caused a continuance from
    approximately March 2020 to October 2020. Under these facts, we conclude
    the district court complied with SCR 251.
    Todd next makes several constitutional arguments, all of which
    lack merit upon de novo review. See Jackson v. State, 
    128 Nev. 598
    , 603,
    
    291 P.3d 1274
    , 1277 (2012) (holding that this court applies de novo review
    to constitutional issues). His constitutional challenge to NRS 125C.0035
    fails because Todd and Amber have equal fundamental rights to care for
    their child, leaving the best interest of the child as the sole consideration to
    decide custody. See Rico v. Rodriguez, 
    121 Nev. 695
    , 704, 
    120 P.3d 812
    , 818
    (2005) (holding that "Din a custody dispute between two fit parents, the
    fundamental constitutional right to the care and custody of the children is
    equar; therefore, "the dispute in such cases can be resolved best, if not
    solely, by applying the best interests of the child standard"). And thus, we
    also reject Todd's argument the district court's order was subject to strict
    scrutiny review.     See 
    id.
     (reviewing the child custody order without
    addressing strict scrutiny).
    Todd's due process challenge to the divorce complaint fails
    because it was the district court's later orders, not the complaint, that
    affected Todd's custodial rights.7 See Wiese v. Granata, 
    110 Nev. 1410
    , 1412,
    
    887 P.2d 744
    , 745 (1994) ([D]ue process requires that notice be given before
    a party's substantial rights are affected."). And we also reject Todd's
    7We  further conclude that the district court properly rejected Todd's
    NRCP 12(b)(5) motion seeking to dismiss the complaint given that Amber
    alleged facts that, when taken as true, would entitle her to custody of the
    minor child. See Edgar v. Wagner, 
    101 Nev. 226
    , 228, 
    699 P.2d 110
    , 112
    (1985) (providing the standard for dismissal under NRCP 12(b)(5)).
    6
    argument that the district court erred by not holding a jury trial. There is
    no right to jury trials in proceedings before the family court division. See
    In re Parental Rights as to M.F., 
    132 Nev. 209
    , 215, 
    371 P.3d 995
    , 999-1000
    (2016) (holding that there is no right to a jury trial for termination of
    parental right proceedings and explaining the policy rationale for why it is
    improper to hold jury trials in cases in family divisions of district courts);
    BareIli v. BareIli, 
    113 Nev. 873
    , 879, 
    944 P.2d 246
    , 249 (1997) (affirming the
    district court's conclusion that there is no right to a jury trial in divorce
    proceedings because there is no right to a jury trial in domestic
    proceedings). Additionally, Todd's double jeopardy and statute-of-
    limitations challenges to the court's finding of domestic violence would be
    relevant only if criminal charges were at issue, but no such charges are at
    issue here. See Hudson v. United States, 
    522 U.S. 93
    , 99 (1997) (holding
    that the Double Jeopardy Clause "protects only against the imposition of
    multiple criminal punishments for the same offense"); see also NRS
    125C.230 (placing no time limit on the district court's consideration of
    domestic violence issues relevant to its custody determination).
    Finally, Todd makes several arguments regarding the
    Honorable Judge Vincent Ochoa's refusal to recuse based on alleged
    appearances of impropriety.8 We review a judge's decision not to recuse for
    a "clear abuse of discretion."9 Canarelli v. Eighth Judicial Dist. Court, 138
    8Todd   makes additional arguments that are irrelevant. As Todd's
    parental rights have not been terminated, we need not address his
    arguments that there were no grounds for such termination. And, because
    he fails to show that Amber was charged with kidnapping, we decline to
    address his argument that Amber kidnapped their child in 2018.
    9 Wereject Todd's arguments to the extent he asserts that Judge
    Ochoa's conduct required disqualification. Todd does not challenge the
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    Nev., Adv. Op. 12 at *2 (2022); see NCJC Rule 1.2 ("A judge shall act at all
    times in a manner that promotes public confidence in the independence,
    integrity, and impartiality of the judiciary and shall avoid . . . the
    appearance of impropriety."). The test for an appearance of impropriety is
    "whether the conduct would create in reasonable minds a perception that
    the judge violated [the NCJC] or engaged in other conduct that reflects
    adversely on the judges honesty, impartiality, temperament, or fitness to
    serve as a judge." NCJC Rule 1.2, cmt. 5; see also NCJC Rule 2.11(A).
    We reject most of Todd's arguments because they are based on
    events that occurred during the course of the TPO and child custody
    proceedings, none of which displayed a "deep-seated favoritism or
    antagonism" by Judge Ochoa, see Canarelli, 138 Nev., Adv. Op. 12 at *3
    (holding that, generally, an extrajudicial source is required for recusals)
    (quoting Liteky v. United States, 
    510 U.S. 540
    , 555 (1994)); or on events
    which Todd himself created such as suing the judge in federal court, cf. City
    of Las Vegas Downtown Redevelopment Agency v. Hecht, 
    113 Nev. 644
    , 649,
    
    940 P.2d 134
    , 138 (1997) (holding that a party "should not be permitted to
    create a situation involving a judge and then claim that the judge" should
    be removed due to the events the party created). As for Todd's argument
    that Judge Ochoa should have recused himself because he allegedly falsified
    TPO documents, Todd failed to raise this issue in the TPO case and we thus
    Honorable Chief Judge Linda Bells orders denying his various motions and
    pleadings seeking disqualification below and he fails to identify any conduct
    requiring Judge Ochoa's disqualification. See NCJC Rule 2.7 (providing
    that a district court judge generally has a duty to sit and preside to the
    conclusion of all proceedings unless disqualification is required by law);
    Millen v. Eighth Judicial Dist. Court, 
    122 Nev. 1245
    , 1253, 
    148 P.3d 694
    ,
    699 (2006) (discussing the duty to sit).
    8
    do not consider it. See Truesdell v. State, 
    129 Nev. 194
    , 200, 
    304 P.3d 396
    ,
    400 (2013) (holding that "a party must challenge a TPO's validity before the
    court that issued the order?). Todd's next argument, that Judge Ochoa
    should have recused because Amber's counsel contributed to the judge's
    campaign, lacks merit. Todd does not allege that the campaign
    contributions were beyond the statutory limits for such contributions. Cf.
    Ivey v. Eighth Judicial Dist. Court, 
    129 Nev. 154
    , 162, 
    299 P.3d 354
    , 359
    (2013) (Campaign contributions made within statutory limits cannot
    constitute grounds for disqualification of a judge under Nevada law."); In re
    Petition to Recall Dunleavy, 
    104 Nev. 784
    , 790, 
    769 P.2d 1271
    , 1275 (1988)
    (explaining that "intolerable resulte would occur if litigants could
    disqualify a judge because an attorney for the opposing party donated to the
    judge's campaign). And he otherwise fails to point to any facts regarding
    the contributions that reasonable minds would perceive as Judge Ochoa
    engaging in any conduct affecting his "honesty, impartiality, temperament,
    or fitness to serve as a judge."10 NCJC Rule 1.2, cmt. 5. Lastly, Todd argues
    that Judge Ochoa should have recused himself because he allegedly gave
    Amber legal advice by instructing her to "file a motion" alleging domestic
    violence facts against him. Because Todd did not request any transcripts,
    see NRAP 3E(c)(2)(A) (requiring appellant to file and serve a transcript
    request form "[w]hen a transcript is necessary for an appear), we do not
    10Because  Todd fails to identify the specific issues with the campaign
    contribution, we further reject any argument that Judge Ochoa's recusal
    was compelled by the Due Process Clause. See Ivey, 129 Nev. at 159, 299
    P.3d at 357 (analyzing whether a "judges recusal was compelled by the Due
    Process Clause" due to campaign contributions by examining various
    factors "on a case-by-case basis," including the size and timing of the
    contributions).
    9
    have the necessary information to address his argument. Nevertheless, to
    the extent the district court informed Amber of her legal options, we do not
    believe this warranted recusal. NCJC Rule 1.2, cmt. 5.
    Attorney fees order (Docket No. 82693)
    Turning to the district court's award of attorney fees, we discern
    no abuse of discretion. See Blanco v. Blanco, 
    129 Nev. 723
    , 732, 
    311 P.3d 1170
    , 1176 (2013) (The decision whether to grant . . . attorney fees is, by
    statute, purely discretionary with the district court."). The district court
    provided a valid statutory basis for the attorney fee award.        See NRS
    125.150(3) (providing that the district court may award reasonable attorney
    fees in a divorce proceeding); Frantz v. Johnson, 
    116 Nev. 455
    , 471, 
    999 P.2d 351
    , 361 (2000) (H is an abuse of discretion to award attorney fees without
    a statutory basis for doing so."). Additionally, the district court noted that
    it had considered the disparity in income of the parties, and Amber's
    Brunzelln brief, which the district court specifically requested before ruling
    on attorney fees.12 See Miller v. Wilfong, 
    121 Nev. 619
    , 623, 
    119 P.3d 727
    ,
    730 (2005) (clarifying what a district court must consider when a party
    represented by pro bona counsel seeks attorney fees, and further explaining
    the policy reasoning behind permitting pro bono counsel to receive such
    fees). Its order also analyzed each Brunzell factor, including Todd's
    11Brunzell   v. Golden Gate Nat'l Bank, 
    85 Nev. 345
    , 
    455 P.2d 31
     (1969).
    12Regarding   the disparity of income, Todd appears to argue that the
    district court did not consider the issue because it did not order Amber to
    file an updated Financial Disclosure Form. Todd fails to demonstrate that
    the district court had to order Amber to file such a form, especially where
    Todd failed to show that Amber's financial situation had changed.
    Additionally, to the extent Todd argues that the district court erred by
    imputing income of $5,000 per month to him, the record reflects that the
    parties stipulated to this amount.
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    litigation practices and how they increased Amber's legal fees, in finding
    the fees reasonable; and ultimately reduced the requested fee amount by
    nearly half. Finally, because the award was based on NRS 125.150(3), we
    need not address Todd's arguments regarding NRS 18.010(2)(b). Based on
    the foregoing, we
    ORDER the judgments of the district court AFFIRMED.B
    , C.J.
    Parraguirre
    is.
    J.                                       Sr.J.
    Cadish
    cc:   Hon. Vincent Ochoa, District Judge
    Todd Matthew Phillips
    Hutchison & Steffen, LLC/Las Vegas
    Eighth District Court Clerk
    13The  Honorable Mark Gibbons, Senior Justice, participated in the
    decision of this matter under a general order of assignment.
    The motions to stay the custody order are denied as moot.
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