Shahrokhi v. Burrow C/W 82245 ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
i
ALI SHAHROKHI, No. 81978 FILE
Appellant,
vs. MAY 1 2 2022
KIZZY J. S. BURROW A/K/A KIZZY
BURROW, CLERK ETURT
PREIR
BY i •
Fq(
Res ondent. DEPU7Y CLERI
ALI SHAHROKHI, No. 82245
Appellant,
vs.
KIZZY BURROW,
Res ondent.
ALI SHAHROKHI, No. 83726
Appellant,
vs.
KIZZY BURROW,
Res • ondent.
ORDER OF AFFIRMANCE (DOCKET NOS. 81978, 82245, AND 83726)
AND DISMISSING APPEAL IN PART (DOCKET NO. 83726)
These appeals challenge several orders in a custody dispute.
Eighth Judicial District Court, Clark County; Linda Marie Bell, Chief
Judge, Mathew Harter, Judge, and Dawn Throne, Judge.'
Appellant Ali Shahrokhi and respondent Kizzy Burrow never
married and have one minor child together. Sometime after their
relationship ended, Kizzy obtained a temporary restraining order against
Ali and the parties filed competing complaints for child custody. After an
evidentiary hearing, the district court awarded Kizzy sole legal and physical
1We have determined that Docket No. 83726, which is subject to the
child custody fast track rule, should be submitted for decision on the fast
track briefs and the appellate record, without any further briefing or oral
argument. See NRAP 3E(g)(1).
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custody of the minor child, permitted her to relocate with the minor child to
Oregon, and awarded her attorney fees and costs. Ali now challenges these
orders, and several others, on various grounds.
As a preliminary matter, Ali 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). First, Ali's constitutional
challenge to NRS 125C.0035 fails because he and Kizzy 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 "[i]n a custody dispute
between two fit parents, the fundamental constitutional right to the care
and custody of the children is equal!' ; therefore, "the dispute in such cases
can be resolved best, if not solely, by applying the best interests of the child
standard").
Ali also argues that the district court deprived him of his
constitutional procedural due process rights by failing to provide him with
adequate notice and an opportunity to be heard regarding certain motions.
"Due process is satisfied by giving [the] parties 'a meaningful opportunity
to present their case."' J.D. Constr., Inc. v. IBEX Int'l Grp., 126 Nev. 366,
376, 240 P.3d 1033, 1040 (2010) (quoting Mathews v. Eldridge, 424 U.S. 319,
349 (1976)); see also Callie v. Bowling, 123 Nev. 181, 183, 160 P.3d 878, 879
(2007) ("[P]rocedural due process 'requires notice and an opportunity to be
heard."' (quoting Maiola v. State, 120 Nev. 671, 675, 99 P.3d 227, 229
(2004))). The record shows that Ali was served with the motions, which
included information regarding any related hearings, and he either
submitted a written opposition, appeared at the scheduled hearing, or failed
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2
to request a hearing pursuant to local rule. Therefore, Ali's due process
claims fail because in all alleged instances, Ali was provided both "notice
and an opportunity to be heard" with respect to the issues before the court.2
Callie, 123 Nev. at 183, 160 P.3d at 879. We now turn to Ali's challenges to
specific court orders.
Docket No. 81978
In Docket No. 81978, Ali challenges the denial of his request to
disqualify the presiding judge, two district court orders finding he
committed domestic violence, and the order granting Kizzy sole legal and
physical custody and permitting her to relocate to Oregon.
Motion to disqualify
Ali challenges Chief Judge Linda Bell's denial of his motion to
disqualify Judge Mathew Harter, arguing that Judge Harter displayed bias
which would "cause a reasonable person to question the judge's
impartiality." Towbin Dodge, LLC v. Eighth Judicial Dist. Court, 121 Nev.
251, 260, 112 P.3d 1063, 1069 (2005); see also NCJC Rule 2.11(A) ("A judge
2We note there is no right to a jury trial in family court proceedings.
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
having juries decide family division cases is improper); Barelli v. Barelli,
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 such right in domestic proceedings).
We have considered Ah's remaining constitutional arguments and
determine that they do not warrant reversal. See Miller v. Burk, 124 Nev.
579, 588-89, 188 P.3d 1112, 1118-19 (2008) (explaining that this court "will
not decide constitutional questions unless necessarY to resolve the issues
on appeal). And the record belies Ali's arguments that the district court
ignored his pretrial objections or that it improperly deemed him a vexatious
litigant.
3
shall disqualify himself or herself in any proceeding in which the judge's
impartiality might reasonably be questioned."). Most of Ali's arguments fail
because they are based on rulings and official actions in the child custody
proceedings,3 see Matter of Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271,
1275 (1988) C[R]ulings and actions of a judge during the course of official
judicial proceedings do not establish legally cognizable grounds for
disqualification."), none of which displayed "a deep-seated favoritism or
antagonism that would make fair judgment impossible," Kirksey v. State,
112 Nev. 980, 1007, 923 P.2d 1102, 1119 (1996) (quoting Liteky v. United
States, 510 U.S. 540, 555 (1994)). Nor do we agree that Ali's pending civil
rights action against the judge in federal court required disqualification.4
See 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). Because Ali
3We further note that the record does not support many of Ali's
allegations, including allegations of ex parte communications between
Judge Harter, Kizzy, and her counsel, allegations that the district court
marshals threatened him with violence, or allegations that Judge Harter
gave legal advice to the parties or counsel throughout the proceedings.
4A1i's campaign-contribution disqualification arguments lack merit
because he does not allege that Kizzy's counsel's contributions to Judge
Harter exceeded statutory limits and this court has held that "a
contribution to a presiding judge by a party or an attorney does not
ordinarily constitute grounds for disqualification." City of Las Vegas
Downtown Redevelopment Agency v. Eighth Judicial Dist. Court, 116 Nev.
640, 644, 5 P.3d 1059, 1062 (2000); see also 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.")
4
failed to show that Judge Harter exhibited extreme bias that would "permit
manipulation of the court and significantly impede the judicial process,"
which is required to overcome the presumption that a judge is personally
unbiased, Millen v. Eighth Judicial Dist. Court, 122 Nev. 1245, 1254-55,
148 P.3d 694, 701 (2006) (quoting Hecht, 113 Nev. at 635-36, 940 P.2d at
128-29), we conclude that the chief judge did not abuse her discretion in
refusing to disqualify Judge Harter, see Ivey, 129 Nev. at 162, 299 P.3d at
359 (reviewing the denial of a motion to disqualify for an abuse of
discretion).
Domestic violence findings
Ali next challenges the district court's domestic violence
findings on various grounds. We reject any argument the proceedings were
criminal or in excess of the court's jurisdiction. While the district court's
order refers to criminal law to define relevant terms, see, e.g., NRS 33.018
(defining acts which constitute domestic violence), it makes clear that the
court's domestic violence findings were pursuant to NRS 125C.0035(5) to
determine if that statute's best-interest presumption applied in this case.5
5Because the district court's domestic violence findings were made
pursuant to NRS 125C.0035(5) and not NRS Chapter 33, we decline to
consider Ali's arguments that the district court proceedings deprived him of
the additional constitutional protections afforded to criminal defendants.
We also decline to consider any argument that Kizzy's complaint did not put
Ali on notice of domestic violence allegations because the argument is not
cogent and Ali fails to support it with citation to relevant authority. See
Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280,
1288 n.38 (2006) (noting that this court need not consider claims
unsupported by cogent argument or relevant authority). We further note
that the district court is required by statute to consider whether a parent
seeking custody of a minor child has committed acts of domestic violence,
see NRS 125C.0035(4)(k) (providing that whether a parent seeking physical
5
See NRS 125C.0035(5) (creating a rebuttable presumption that physical
custody is not in the child's best interest where the district court has found
that a parent committed "acts of domestic violence against the child, a
parent of the child or any other person residing with the child"); NRS
3.223(1)(a) (providing that family courts have exclusive jurisdiction in any
proceeding brought pursuant to NRS Chapter 125C); Landreth v. Malik,
127 Nev. 175, 186-88, 251 P.3d 163, 170-71 (2011) (concluding that family
court judges "ha[ve] the same constitutional power and authority as any
[other] district court judge" such that they have jurisdiction to resolve issues
beyond those listed in NRS 3.223). And the record supports the district
court's application of NRS 125C.0035(5)s best-interest rebuttable
presumption, as it provides substantial evidence that Ali engaged in
multiple acts of domestic violence against Kizzy, including threats to hit her
and burn her clothing, harassing her, and intimating that he knows where
she lives.6 Considering this evidence, which the district court deemed
credible, combined with Ali's failure to meaningfully rebut the statutory
presumption,7 we conclude that the district court did not abuse its
custody of a minor child has committed acts of domestic violence is a
relevant factor in determining the best interest of the child), and neither
domestic violence nor child custody are among those areas of the law upon
which the Nevada Rules of Civil Procedure imposes heightened pleading
standards, see generally NRCP 9.
GThis includes evidence from Kizzy's prior TPO action, testimony from
Kizzy, an interview with the minor child, and numerous text message and
Our Family Wizard messages between the parties.
7The record reveals that Ali presented no evidence during the
domestic violence phase of the district court's evidentiary hearing. We are
not persuaded by Ali's arguments that he was not afforded adequate notice
or an opportunity to respond to Kizzy's domestic violence allegations, as he
6
discretion by applying NRS 125 C.0035s presumption to find that giving Ali
physical custody would not be in the child's best interest. See Castle v.
Simmons, 120 Nev. 98, 102-03, 86 P.3d 1042, 1045-46 (2004) (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 witnesses on appear).
Custody and relocation
We next reject Ali's argument that the district court erred when
it applied the factors set forth in Druckman v. Ruscitti, 130 Nev. 468, 473,
327 P.3d 511, 515 (2014), in granting Kizzy's relocation request. See Stacco
v. Valley Hosp., 123 Nev. 526, 530, 170 P.3d 503, 505-06 (2007) (recognizing
that this court reviews whether a district court applied the correct legal
standard de novo). We disagree that the district court's stipulated order
granting Kizzy temporary sole physical custody constituted an order
awarding physical custody such that the district court had to apply the NRS
125C.007 relocation factors instead.8 See Druckman, 130 Nev. at 473, 327
P.3d at 514 (explaining that, in the absence of a court order awarding a
was present at numerous court hearings during which the court, parties,
and counsel discussed the need for an evidentiary hearing specifically
regarding those allegations and because Ali elected to conduct that hearing
on the first day set for trial on Kizzy's custody and relocation requests. Cf.
Pearson v. Pearson, 110 Nev. 293, 297, 871 P.2d 343, 345 (1994) C[A] party
will not be heard to complain on appeal of errors which he himself
induced . . . ." (quoting 5 Am. Jur. 2d Appeal and Error § 713 (1962))).
8NRS 125C.007(1) explains that the factors set forth in that statute
apply to all petitions to relocate brought pursuant to NRS 125C.006 or
125C.0065; those latter statutes apply to petitions for relocation only where
there is a prior court order establishing either primary or joint physical
custody.
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7
I947A ataas
parent physical custody, the predecessor statute to NRS 125C.006 does not
apply).
Our review of the record also supports the district court's
findings regarding the Druckrnan factors. The record shows that Kizzy
demonstrated good-faith reasons for the move to Oregon, including her
relationship with her fiance and her desire to escape Ali's obsessive
behavior. See id. at 473, 327 P.3d at 515 (requiring a parent to demonstrate
a good faith basis for relocation before the district court may consider the
motion); see also Jones v. Jones, 110 Nev. 1253, 1260-61, 885 P.2d 563, 568-
69 (1994) (explaining that the best interest of the child must be considered
in conjunction with the well-being of the custodial parent and recognizing
that "Mlle custodial parent's right to pursue another relationship is
integrally connected to the health and well-being of the custodial parenr).
And the record also supports the district court's detailed findings regarding
the Schwartz9 factors, see Druckman, 130 Nev. at 473, 327 P.3d at 515, and
the factors set forth in NRS 125C.0035. Because the district court's findings
regarding the parties inability to cooperate to meet the child's needs;
"which parent is more likely to allow the child to have . . . a continuing
relationship with the noncustodial parene; the child's "physical,
developmental and emotional neede; and Ali's acts of domestic violence
against Kizzy are supported by substantial evidence, we conclude that the
district court's decision to award Kizzy sole physical custody was not an
abuse of discretion."' See NRS 125C.0035; see Wallace v. Wallace, 112 Nev.
9Schwartz v. Schwartz, 107 Nev. 378, 382-83, 812 P.2d 1268, 1271
(1991).
1°We decline to address Ali's remaining arguments in this regard
because they are either irrelevant or unsupported by the record. And we
8
1015, 1019, 922 P.2d 541, 543 (1996) (reviewing a child custody order for an
abuse of discretion); see also Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d
239, 242 (2007) (explaining that this court "will not set aside the district
court's factual findings [in child custody determinations] if they are
supported by substantial evidence").
We reject Ali's contention that the district court violated SCR
251, which generally requires child custody issues be resolved within six
months of a responsive pleading. Indeed, the rule 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." SCR 251. Here, the
record supports the district court's finding that Ali was the primary cause
of the delay in resolving the parties competing custody requests: Ali delayed
proceedings on multiple occasions, including by filing numerous writ
petitions, several requests to continue trial, multiple failed motions to
disqualify the presiding judge, as well as additional delays due to Ali's
wavering agreement to participate in child custody and psychological
evaluations.H Thus, the invited error doctrine bars Ali's argument
need not address Ali's arguments regarding termination of parental rights,
given that the district court's order does not terminate Ali's parental rights.
llIndeed, in the span of several months, Ali refused to participate in
any counseling, then agreed to participate in counseling (and sought a trial
continuance to do so) but failed to pay the retainer fee necessary to begin
counseling, then later renewed his opposition to counseling. Given Ali's
representations that he would participate in a psychological evaluation, we
decline to consider his appellate arguments regarding the district court's
authority to order him to do so. See Pearson, 110 Nev. at 297, 871 P.2d at
345 (explaining that "a party will not be heard to complain on appeal of
error which he himself induced or provoked the court . . . to commie).
9
regarding the delay and we conclude the district court complied with SCR
251. See Pearson, 110 Nev. at 297, 871 P.2d at 345 CThe doctrine of 'invited
error embodies the principle that a party will not be heard to complain on
appeal of errors which he himself induced or provoked the court or the
opposite party to commit." (quoting 5 Am. Jur. 2d Appeal and Error § 713
(1962))).
Docket No. 82245
In Docket No. 82245, Ali challenges the order requiring him to
pay Kizzy's attorney fees and costs. We review for an abuse of discretion,
see Gunderson v. D.R. Horton, Inc., 130 Nev. 67, 82, 319 P.3d 606, 616
(2014), and conclude that the district court was authorized to award Kizzy
her "reasonable attorney fees . . . and other costs of the proceedine as the
prevailing party. See NRS 125C.250 (authorizing an award of attorney fees
to the prevailing party in a child custody matter). We also reject Ali's
contention that the district court improperly evaluated the parties'
disparity in income when considering the issue, as the district court's order
makes clear that it considered the information provided in both Ali's and
Kizzy's most recent financial disclosure forms when making its decision.i2
See Miller v. Wilfong, 121 Nev. 619, 623-24, 119 P.3d 727, 730 (2005)
(requiring the district court to "consider the disparity in income of the
parties when awarding feee in a family law case).
Docket No. 83726
In Docket No. 83726, Ali challenges several post-judgment
orders. As to some of those orders, our review pursuant to NRAP 3(g)
reveals a jurisdictional defect. Specifically, some of the orders designated
12 We have considered Ali's remaining arguments regarding the
district court's fee award and determine that they lack merit.
10
notices of appeal are not substantively appealable. See NRAP 3A(b).
This court has jurisdiction to consider an appeal only when authorized by
statute or court rule. Taylor Constr. Co. v. Hilton Hotels, 100 Nev. 207, 209,
678 P.2d 1152, 1153 (1984). No statute or court rule provides for an appeal
from an order denying a request to transfer a matter to a different district
court department, an order denying a post-judgment motion to dismiss
(including a post-judgment anti-SLAPP special motion to dismiss), an order
denying a motion for sanctions pursuant to NRCP 11, or an order denying
a "Demand for Bill of Particulars and Cause of Accusation U.S. Constitution
6th Amendment."13 Because these are not appealable orders, we dismiss
the appeal in part as to those orders.
Ali argues that the district court abused its discretion when it
denied his motion for relief from the judgment pursuant to NRCP 60(b). See
Rodriguez v. Fiesta Palms, LLC, 134 Nev. 654, 656, 428 P.3d 255, 257 (2018)
(reviewing a district court's ruling on a motion for relief from judgment
pursuant to NRCP 60(b) for an abuse of discretion). We disagree. As the
district court correctly observed, the evidence forming the basis of Ali's
motion was available to him before trial and Ali failed to prove that the
information was fraudulently concealed from the district court. See NRCP
60(b)(2)-(3) (authorizing relief from a final judgment due to "newly
discovered evidence that, without reasonable diligence, could not have been
discovered in time to move for a new trial" or "fraud [,] misrepresentation,
or misconduct by an opposing party"). The district court also did not abuse
'This court previously dismissed Ali's appeal from two of these orders
because they were not substantively appealable. See Shahrokhi v. Burrow,
2021 WL 5028911, No. 83662 (Nev. Oct. 28, 2021) (Order Dismissing
Appeal).
11
its discretion when it found Ali failed to prove the district court's order was
void for lack of subject matter jurisdiction, see NRCP 60(b)(4), and Ali did
not demonstrate "any other reason [to] justif[y the] relief requested, NRCP
60(b)(6). We further conclude that Ali's newly discovered evidence
regarding Donald Pearson's interest in a legal business enterprise in
Oregon is collateral to the final judgment, which addressed issues of
custody, relocation, and child support; therefore, this information did not
justify relief from the judgment pursuant to NRCP 60(b). As to Ali's
argument that the district court abused its discretion in striking his
supplement to his Rule 60 motion, we decline to consider this argument
because he failed to support it with any cogent argument or relevant
authority. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38,
130 P.3d 1280, 1288 n.38 (2006) (noting that this court need not consider
claims unsupported by cogent argument or relevant authority).
Lastly, as to Ali's challenges to the orders denying his motions
for costs related to the writ petition before this court in Docket No. 82803,
we conclude that the district court did not err because neither NRS 18.060
nor NRAP 39 allow an award of costs to a prevailing party in an original
proceeding for writ relief." See NRS 18.060 (providing this court with
"This court rejected Ali's nearly identical request for costs pursuant
to NRAP 39 for this same reason. See Shahrokhi v. Eighth Judicial Dist.
Court, Docket No. 82803 (Order, July 16, 2021).
Although we affirm the district court's denial of costs pursuant to
NRS 18.060 for a different reason, Pack v. LaTourette, 128 Nev. 264, 267,
277 P.3d 1246, 1248 (2012), we also agree with its conclusion that Ali was
not entitled to costs under the statute because this court's writ of
mandamus in Docket No. 82803 neither granted him a new trial nor did it
modify the underlying judgment.
12
discretion to award costs of an appeal "[w]here a new trial is ordered [or] a
judgment is modified"); NRAP 39 (providing for an award of costs to a
prevailing party in a civil appeal); Logan v. Abe, 131 Nev. 260, 264, 350 P.3d
1139, 1141 (2015) (explaining that this court reviews a party's eligibility for
an award of costs pursuant to statute de novo). And although Ali urges that
he was entitled to costs pursuant to NRS 18.020(4), we decline to consider
this argument because he failed to raise it before the district court. See Old
Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981)
(providing that an argument not raised in the district court is "waived and
will not be considered on appear). For the foregoing reasons, we
ORDER the appeal in Docket No. 83726 DISMISSED IN PART
and the judgraents of the district court AFFIRMED.15
Par aguirre
, J. Sr.J.
Herndon
cc: Hon. Linda Marie Bell, Chief Judge
Hon. Mathew Harter, District Judge
Hon. Dawn Throne, District Judge
Ali Shahrokhi
Kizzy Burrow
Eighth District Court Clerk
15The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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