Lopez v. Lopez (Child Custody) ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
RICK AUGUSTINE LOPEZ, No. 65196
Appellant,
vs.
MELANIE JENNIFER LOPEZ, FILED
Respondent.
JAN 2 7 2016
TRACE K LtNDEMAN
CLERK OF SUPREME COURT
BY -
DE PUtY CLERK
ORDER OF REVERSAL AND REMAND
This is an appeal from a district court order concerning child
custody and relocation. Eighth Judicial District Court, Family Court
Division, Clark County; Jack B. Ames, Senior Judge.
The parties have two children together, and prior to
separating, lived in Las Vegas, Nevada. After they separated, and before
custody of the children was finalized, respondent moved to Arizona
without the children. Appellant did not consent to the children moving to
Arizona, and both parties sought primary physical custody. During the
five-month period before the final custody order was issued, the district
court allowed the children to remain in Las Vegas with appellant. After a
hearing, the district court awarded primary physical custody of the
children to respondent in Arizona.
Having considered the parties' oral arguments and briefs, and
the record before this court, we conclude that the district court erred when
it failed in both the written order and its comments on the record to make
specific findings and provide an adequate explanation of the reason for its
custody determination. Davis v. Ewalefo, 131 Nev., Adv. Op. 45, 352 P.3d
1139, 1143 (2015). Such findings and explanation are crucial for appellate
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review as well as enforcement and future modification of a custody order.
Id. And although this court reviews a district court custody determination
for an abuse of discretion, "deference is not owed to legal error, or to
findings so conclusory they may mask legal error." Id. at 1142 (internal
citations omitted). Here, the district court's order contains no findings of
fact regarding custody or whether relocating to Arizona would serve the
children's best interests. See Druckman v. Ruscitti, 130 Nev., Adv. Op. 50,
327 P.3d 511, 515 (2014) (providing that when parties share equal custody
rights and one seeks to relocate the child, the district court must base its
decision on the child's best interest by applying the NRS 125.480(4) (2009)
best-interest factors and the Schwartz v. Schwartz, 107 Nev. 378, 383, 812
P.2d 1268, 1271 (1991), relocation factors)." Additionally, rather than
ameliorate the lack of findings in the written order, the district court's oral
comments on the record are vague and fail to reference governing law. Cf.
Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004)
(recognizing that "[r]ulings supported by substantial evidence will not be
disturbed on appeal"). The deficiencies in the district court's written order
and oral pronouncements prevent this court from evaluating whether "the
custody determination was made for appropriate legal reasons." Davis,
131 Nev., Adv. Op. 45, 352 P.3d at 1143. Accordingly, we reverse the
district court's order awarding respondent primary custody of the children
'Although the district court's decision was issued before Druckman,
the case is still controlling law on appeal. See Leavitt v. Siems, 130 Nev.,
Adv. Op. 54, 330 P.3d 1, 5 (2014) (providing that "retroactivity is the
default rule [for case law] in civil cases"). Additionally, the district court
failed in its comments to reference or apply the controlling law in place at
the time of the hearing. See Potter v. Potter, 121 Nev. 613, 618, 119 P.3d
1246, 1249 (2005).
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in Arizona and remand for additional evidence and proper findings and
conclusions of law resolving physical custody and relocation.
Appellant also argues that the district court awarded him
temporary primary physical custody of the children while the divorce was
pending, and thus, respondent should be held to the more stringent
standard for relocating with the children as a non-custodial parent. See
generally Ellis v. Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007).
The district court oral rulings invoked by appellant, however, did not
formally award appellant primary physical custody, and instead merely
kept physical custody status quo pending a final resolution. See Rust v.
Clark Cty. Sch. Dist., 103 Nev. 686, 689, 747 P.2d 1380, 1382 (1987)
(providing that oral pronouncements are "ineffective for any purpose").
Thus, appellant was not the children's primary custodian and the parties
had equal physical custody rights. Druckman, 130 Nev., Adv. Op. 50, 327
P.3d at 515 (providing that when no order addresses physical custody, the
parties have equal physical custody rights); see Potter, 121 Nev. at 618,
119 P.3d at 1250 (providing that a court may consider "whether one
parent had de facto primary custody of the child prior to the [relocation]
motion" (emphasis added)).
Finally, as to appellant's contention that the district court
displayed misconduct during the custody hearing, we conclude that
appellant waived this argument by failing to make a specific objection in
the district court. Foley v. Morse & Mowbray, 109 Nev. 116, 120, 848 P.2d
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519, 521 (1993) (explaining that a party who fails to make a specific
objection to judicial misconduct at trial waives the argument on appeal). 2
Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
, C.J.
Parraguirre
J.
J.
cc: Chief Judge, The Eighth Judicial District Court
Hon. Jack B. Ames, Senior Judge
Steven C. Devney
Reisman Sorokac
Legal Aid Center of Southern Nevada, Inc.
Anne R. Traum
Snell & Wilmer, LLP
Eighth District Court Clerk
2 Tothe extent that appellant asserts judicial bias that implicates
the constitutional due process right to a fair trial, because reversal is
warranted on other grounds, we decline to decide this issue. Miller v.
Burk, 124 Nev. 579, 588-89 & n.26 188 P.3d 1112, 1118-19 & n.26 (2008)
(explaining that this court will not decide constitutional questions unless
necessary).
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