Busse v. Busse (Child Custody) ( 2015 )

 (1991). If the parents share joint physical custody, the analysis differs.
See Druckman v. Ruscitti, 130 Nev., Adv. Op. 50, 327 P.3d 511, 515-16
(2014); Potter v. Potter, 121 Nev. 613, 618, 119 P.3d 1246, 1249-50 (2005).
When classifying a physical custody arrangement as joint or primary,
courts should primarily consider whether joint or primary custody is in the
children's best interest, while also inquiring whether each parent has
custody at least 40 percent of the time. See Bluestein v. Bluestein, 131
Nev., Adv. Op. 14, 345 P.3d 1044, 1049 (2015). The district court
considered respondent's openness in allowing frequent contact between
appellant and the children, and found this demonstrated good co-
parenting which enriched the children's lives, but also weighed in favor of
maintaining respondent's status as primary physical custodian. The court
also considered the parties' similar but different custody calendars and
heard evidence regarding the parties' timeshare The district court's
conclusion that respondent maintained primary custody, and thus, that
the Schwartz analysis applied, is supported by substantial evidence and
was not an abuse of discretion. See Bluestein, 131 Nev., Adv. Op. 14, 345
P.3d at 1049 (providing that a district court has broad discretion in
matters of child custody); Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d
699, 704 (2009) (explaining that this court will uphold district court
factual findings if supported by substantial evidence).
Appellant next argues that the district court abused its
discretion when it determined that the Schwartz relocation factors
weighed in favor of relocation. Specifically, appellant asserts that there
was no evidence that respondent's or the children's quality of life would
improve upon relocation, and that appellant's alternative visitation would
not sufficiently foster and preserve his parental relationship with the
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children. See Schwartz, 107 Nev. at 382-83, 812 P.2d at 1271 (factors (1)
and (5)). The district court, however, specifically considered both of these
factors when it weighed the totality of the Schwartz factors and found that
they counseled in favor of the relocation. Additionally, substantial
evidence supports the district court's factual findings as to each factor.
Ogawa, 125 Nev. at 668, 221 P.3d at 704.
Finally, appellant challenges the district court's award of
attorney fees. Under NRS 125.040, a district court may award attorney
fees to a party in a divorce action. The award of attorney fees in divorce
proceedings lies within the sound discretion of the trial judge. Miller v.
Wilfong, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005). Although appellant
argues that the $3,500 awarded was unfair because certain motion
practice could have been avoided and because appellant lost the relocation
motion, appellant has not demonstrated that the district court's attorney
fee award was an abuse of discretion. See id.
Accordingly, we
ORDER the judginerinif the district court AFFIRMED.'
VC) j.
Gibbons Pickering
'We have determined that this appeal should be submitted for
decision on the fast track briefing and appellate record without oral
argument. See NRAP 3E(g)(1); NRAP 34(0(1).
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cc: Hon. Bryce C. Duckworth, District Judge, Family Court Division
McFarling Law Group
Fine Law Group
Eighth District Court Clerk
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