Micone v. Micone , 2016 NV 14 ( 2016 )

132 Nev., Advance Opinion 14
IN THE SUPREME COURT OF THE STATE OF NEVADA
KERSTAN MICONE, N/K/A KERSTAN No. 67934
HUBBS,
Appellant,
vs.
FILED
MICHAEL MICONE, MAR 03 2916
Respondent. TIFAAHI K. UNDEMAN
cLE@Iptiot • ME CQIII'
BY )00 1, A
CHIEit dEP-11
Appeal from a post-divorce decree order modifying child
custody and support. Eighth Judicial District Court, Family Court
Division, Clark County; Rena G. Hughes, Judge.
Affirmed impart, reversed in part, and remanded.
Black & LoBello and John D. Jones, Las Vegas,
for Appellant.
Prokopius & Beasley and Donn W Prokopius, Las Vegas,
for Respondent.
BEFORE HARDESTY, SAITTA and PICKERING, JJ.
OPINION
By the Court, PICKERING, J.:
This is an appeal from a district court order modifying a child
custody and support decree to change primary physical custody from the
child's mother to the child's grandparents. The grandparents were not
SUPREME COURT
OF
NEVADA
(0) 1947A
parties to the action, and the district court did not notify the parents that
the grandparents were being considered as a custodial option. Without
joinder of the grandparents, notice to the parents that the grandparents
might be awarded custody, and the requisite findings to overcome the
parental preference, the district court's order cannot stand. We therefore
reverse in part, affirm in part, and remand.
I.
In 2009, appellant Kerstan Micone and respondent Michael
Micone divorced. The parties were awarded joint legal custody of their
two minor children, while Kerstan received primary physical custody of
both children. The divorce decree provided that after the 2009 school year,
the children would attend public school unless both parents agreed to pay
for private school. The Micones' daughter (I.M.) received poor grades in
Las Vegas public schools, possibly due to I.M.'s dyslexia, so Michael agreed
to pay half of I.M.'s private school tuition if she would attend private
school in Reno. Kerstan and Michael agreed that it was in I.M.'s best
interest for her to live during the school year with her paternal
grandparents in Reno. Thereafter, in August 2013, I.M. moved to her
grandparents' house in Reno, where she currently resides and attends
school, returning to live with Kerstan in the summer.
In 2014, Michael, who lives in Reno, moved to change custody,
seeking primary physical custody of I.M. Kerstan opposed any change in
physical custody, conceding that she allowed I.M. to live with her
grandparents in Reno, but objecting that this did not mean she agreed to
change her physical custody status. On January 15, 2015, the district
court found it was in I.M.'s best interest to reside with her grandparents
and awarded primary physical custody to I.M.'s paternal grandparents,
SUPREME COURT
OF
NEVADA
2
(0 I 94Th
who were neither parties to, nor intervenors in, the action. The district
court concluded that because I.M. "is, and has been, residing with her
paternal grandparents since August 2013, neither parent has primary or
shared physical custody of the child after that date." Kerstan appeals.'
This court reviews a child custody determination for an abuse
of discretion. See Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541,
543 (1996). While we have not authoritatively addressed child custody
awards to nonparty nonparents, we have held that a court must have
jurisdiction over a party before it can enter judgment affecting that party.
See Young v. Nev. Title Co., 103 Nev. 436, 442, 744 P.2d 902, 905 (1987)
("A court does not have jurisdiction to enter judgment for or against one
who is not a party to the action."). Applying Young to child custody cases
is consistent with how other courts have addressed this issue. See Landry
v. Nauls, 831 S.W.2d 603, 605 (Tex. Ct. App. 1992); see also Elton H. v.
Naomi R., 119 P.3d 969, 979 (Alaska 2005) (requiring that a nonparty
grandmother consent to becoming a party upon remand to be considered a
custodial option).
'We reject Kerstan's issue-preclusion-based challenge to the district
court's order barring modification of certain child support arrearages, as
the order relies on video transcript from a June 26, 2013, hearing, which
Kerstan failed to include in the record on appeal. See Carson Ready Mix,
Inc. v. First Nat'l Bank of Nev., 97 Nev. 474, 476, 635 P.2d 276, 277 (1981)
(declining to consider matters that do not properly appear in the record on
appeal); see also Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598,
603, 172 P.3d 131, 135 (2007) ("When an appellant fails to include
necessary documentation in the record, we necessarily presume that the
missing portion supports the district court's decision.").
SUPREME COURT
OF
NEVADA
3
tO! 1947A mliVEfito
In Landry, the Texas Court of Appeals considered whether the
trial court abused its discretion by awarding permanent managing
conservatorship to the nonparty paternal grandmother without
overcoming the parental preference statute. 831 S.W.2d at 606. The court
held that "[lit is no longer sufficient for the trial court to merely state that
an award of custody to a nonparent is in the best interest of the child." Id.
at 605. Instead, a nonparent must either "bring or intervene in a custody
suit" and present evidence to overcome parental preference to be awarded
custody of a minor child. Id. We conclude that Landry is consistent with
Nevada law, as NRS 125.510 (2013) 2 demonstrates that the court should
have jurisdiction over parties in child custody disputes. NRS 125.510
("The party seeking such an order shall submit to the jurisdiction of the
court for the purposes of this subsection." (emphasis added)) (repealed by
2015 Nev. Stat., ch. 445, § 10, at 2586); see also NRS 125A.345(3) ("The
obligation to join a party and the right to intervene as a party in a child
custody proceeding conducted pursuant to the provisions of this chapter
are governed by the law of this state as in child custody proceedings
between residents of this state.").
If a court awards custody to a nonparent that neither brought
nor intervened in the custody action, the parties' due process rights may
be violated. See Gonzales-Alpizar v. Griffith, 130 Nev., Adv. Op. 2, 317
P.3d 820, 827 (2014) (providing that procedural due process requires
reasonable notice and an opportunity to present objections); see also NRS
2While the Legislature repealed NRS 125.510 in 2015, the same
language was added to NRS Chapter 125C. See A.B. 263, 78th Leg. (Nev.
2015).
SUPREME COURT
OF
NEVADA
4
(0) 1947A 0
125A.345(1) (requiring notice and an opportunity to be heard for child
custody determinations); Anonymous v. Anonymous, 353 So. 2d 515, 519
(Ala. 1977) (holding award of child custody to nonparty grandparent
violated parent's due process rights because "the custody dispute centered
around and was focused upon, the parties"); Elton H., 119 P.3d at 979
(requiring the parties to the dispute to have sufficient notice of the
possibility that a nonparty will receive custody to satisfy due process).
Here, the district court's unilateral award of custody to the
nonparty grandparents failed to provide the notice and opportunity to be
heard that fundamental fairness, indeed, due process, requires on an issue
as important as child custody. In Michael's motion to change custody, and
Kerstan's opposition, both parties argued how I.M.'s best interest would be
served or disserved by primary custody lying with Michael, as opposed to
Kerstan, or vice versa. Neither party briefed or argued whether awarding
primary physical custody to the grandparents was justified or would be in
I.M's best interest. The surprise award of custody to the nonparty
grandparents violated the Micones' due process rights. See Gonzales-
Alpizar, 130 Nev., Adv. Op. 2, 317 P.3d at 827.
Additionally, the district court failed to make specific findings
that awarding custody to either Michael or Kerstan would be detrimental
to I.M. and the award of custody to the paternal grandparents was in
I.M.'s best interest. See NRS 125.500(1) 3 (requiring a district court to find
that "an award of custody to a parent would be detrimental to the child
3 Similarto NRS 125.510, the Legislature repealed NRS 125.500 in
2015, but added the same language to NRS Chapter 125C. See A.B. 263,
78th Leg. (Nev. 2015).
SUPREME COURT
OF
NEVADA
5
(0) 1947A
and the award to a nonparent is required to serve the best interest of the
child" before awarding custody to a nonparent). Though the district court
found that Michael and Kerstan consented to I.M. residing with her
grandparents, Kerstan maintains that she did not consent to changing her
custody status. Thus, the district court needed to make the requisite
findings under NRS 125.500 before awarding custody to the grandparents.
We note that Kerstan argues a change in custody is
unwarranted when a custodial parent sends a child to live with a third-
party for educational or similar interests, such as sending a child to
boarding school. See, e.g., DaSilva v. DaSilva, 15 Cal. Rptr. 3d 59, 62 (Ct.
App. 2004). Kerstan did not present this argument below until her
reconsideration motion, which the district court declined to hear pending
appeal in this court. Upon remand, the district court should consider
these arguments on the merits, as it is inappropriate for this court to do so
without the issues being decided below. CI Arnold v. Kip, 123 Nev. 410,
417, 168 P.3d 1050, 1054 (2007).
To be awarded custody of a minor child, a nonparent must
either "bring or intervene in a custody suit" and present evidence to
overcome the parental preference. Here, because the grandparents
neither brought nor intervened in the custody suit, the district court failed
to notify the Micones that it was considering the grandparents as a
custodial option, and the district court did not make the requisite findings
to overcome the parental preference, we conclude that the district court
abused its discretion. Accordingly, we reverse the district court's award of
primary physical custody to the nonparty grandparents, affirm its order
SUPREME COURT
OF
NEVADA
6
(0) 1947A 4W4
regarding issue preclusion, and remand for proceedings consistent with
this opinion.
J.
We concur:
J.
Hardesty
, J.
Saitta
SUPREME COURT
OF
NEVADA
7
(0) 1947A .16111.