Richmond v. Russell (Child Custody) ( 2015 )

 abuse of discretion). The district court properly concluded that respondent
had a good faith basis for the move, Jones v. Jones, 110 Nev. 1253, 1259-
61, 885 P.2d 563, 568-69 (1994), and went through the Schwartz v.
Schwartz, 107 Nev. 378, 383, 812 P.2d 1268, 1271 (1991), factors
thoroughly. Specifically, there was extensive evidence that the move
would improve the quality of life of both respondent and the children.
Schwartz, 107 Nev. at 383, 812 P.2d at 1271. Additionally, the court
concluded that respondent• was the parent more likely, to foster a
relationship with the other parent and that appellant would have more
visitation days throughout the year after the children relocated than he
currently had. See Trent v. Trent, 111 Nev. 309, 315-16, 890 P.2d 1309,
1313 (1995) (providing that once a custodial parent establishes a good
faith basis for the move, the court should consider the Schwartz factors,
"focusing on the availability of adequate, alternate visitation"). Thus, the
district court did not abuse its discretion in granting respondent's
relocation motion.'
Appellant also argues that his due process rights were violated
by having to choose between his children's temporary relocation to
1 While the district court considered an email from respondent's
employer that was inadmissible hearsay, because respondent testified
extensively about the same subject and another document supported
respondent's testimony, the admission of the email was harmless. See
McMonigle v. McMonigle, 110 Nev. 1407, 1409, 887 P.2d 742, 744 (1994)
(explaining that lilt is harmless error if a court incorrectly admits
evidence which does not affect the substantial rights of the parties" and
"where inadmissible evidence has been received by the court, sitting
without a jury, and there is other substantial evidence upon which the
court based its findings, the court will be presumed to have disregarded
the improper evidence" (internal quotation omitted)), overruled on other
grounds by Castle v. Simmons, 120 Nev. 98, 86 P.3d 1042 (2004).
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California or submitting to an expedited evidentiary hearing without
discovery. While we are concerned about the position the district court
placed appellant in, the district court's actions do not rise to the level of a
due process violation because appellant requested the expedited
evidentiary hearing, he had notice of the hearing, and he had the
opportunity to oppose appellant's motion at the hearing. Rico v.
Rodriguez, 121 Nev. 695, 702, 120 P.3d 812, 817 (2005) ("This court
reviews constitutional challenges de novo."); Collie v. Bowling, 123 Nev.
181, 183, 160 P.3d 878, 879 (2007) ("[P]rocedural due process requires
notice and an opportunity to be heard." (internal quotations omitted)).
Further, both parties agreed to forgo discovery in exchange for the
expedited evidentiary hearing and the inability to conduct discovery
applied equally to both of them. Additionally, it was within the district
court's sound discretion to allow the temporary relocation, cf. In re
Temporary Custody of Five Minor Children, 105 Nev. 441, 443, 777 P.2d
901, 902 (1989) (recognizing that the district court has authority to enter a
temporary order regarding custody), especially under circumstances like
those present here where the parent with primary physical custody is
starting a job in another state before the court would have time to conduct
an evidentiary hearing.
Lastly, in regard to appellant's argument that the district
court abused its discretion in providing him with an offset to his child
support obligation for the transportation costs associated with his
visitation instead of requiring respondent to pay those costs directly, we
conclude the district court did not abuse its discretion. NRS
125B.080(9)(i) (providing that in adjusting child support, the court may
consider "Mlle cost of transportation of the child to and from visitation"
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after the child has relocated); Wallace, 112 Nev. at 1019, 922 P.2d at 543
(providing that this court reviews a child support order for an abuse of
discretion). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
Parraguirre
tify.
iLA
Douglas
CHERRY, J., dissenting:
I disagree with my colleagues' decision to affirm the district
court's order granting respondent's motion to relocate because the district
court violated appellant's procedural due process rights by providing him
with the Hobson's choice of either losing his children for a few months or
forgoing both discovery and a full and fair evidentiary hearing. Rico v.
Rodriguez, 121 Nev. 695, 702, 120 P.3d 812, 817 (2005) ("[t]his court
reviews constitutional challenges de novo"). Placing appellant in this
position deprived him of the opportunity to truly and fairly oppose
respondent's motion to relocate. See Callie v. Bowling, 123 Nev. 181, 183,
160 P.3d 878, 879 (2007) (explaining that procedural due process requires
an opportunity to be heard on the motion). Without conducting discovery,
appellant was unable to ascertain the best arguments to present to the
court in opposition to the motion. Thus, appellant should have had the
opportunity to conduct discovery before losing his children. See Blanco v.
Blanco, 129 Nev., Adv. Op. 77, 311 P.3d 1170, 1175 (2013) ("child custody
decisions implicate due process rights because parents have a
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fundamental liberty interest in the care, custody, and control of their
children").
Further, the district court cannot permit the children to
relocate, even temporarily, until the court has considered the Schwartz v.
Schwartz, 107 Nev. 378, 383, 812 P.2d 1268, 1271 (1991), factors. In
Schwartz, this court held that prior to granting a motion to relocate, the
district court must consider whether (1) the move will improve the quality
of life for the custodial parent and the children, (2) the custodial parent's
motives are honorable in requesting the move, (3) the custodial parent will
comply with substitute visitation orders, (4) the noncustodial parent's
motives are honorable in opposing the relocation, and (5) the noncustodial
parent will be able to have visitation with the children that fosters and
preserves the parental relationship. Id. The district court is precluded
from permitting a parent to relocate with the children until the court has
considered these factors.
Although one could argue that the district court was merely
maintaining the status quo by temporarily permitting the relocation
because respondent had primary physical custody, respondent only has
the right to primary physical custody of the children in the state of
Nevada, and thus, the district court is not maintaining the status quo by
allowing her to remove the children from the state without first
considering the Schwartz factors. This is especially true because the move
necessarily affected appellant's visitation rights and Schwartz requires the
court to consider whether reasonable alternative visitation is available.
Thus, the district court could not temporarily permit the children to
relocate before considering reasonable alternative visitation. Because
respondent is the party relocating, she cannot take the children with her
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until the court has had the opportunity to thoroughly consider the
Schwartz factors, and if there is a delay in the court's consideration so that
the parties can conduct discovery, respondent has to wait to relocate or
she can relocate without the children. Therefore, permitting the relocation
of the children without considering the Schwartz factors, even temporarily
pending an evidentiary hearing, was an abuse of discretion.
By allowing the children to relocate prior to the court's
consideration of the Schwartz factors and expediting the evidentiary
hearing without allowing discovery, the district court violated appellant's
procedural due process rights by diminishing his opportunity to be heard
in opposition to respondent's motion. Thus, I would reverse and remand
this matter to the district court so that the parties can conduct discovery
before the district court holds an evidentiary hearing to consider the
Schwartz factors.
Cherry
cc: Eighth Judicial District Court, Family Division, Department T
McDonald Carano Wilson LLP/Las Vegas
Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
Eighth District Court Clerk
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