Askew v. Askew (Child Custody) ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
TRACY ASKEW N/K/A TRACY RADER, No. 66444
Appellant,
vs. FILED
STANLEY ASKEW,
Respondent. FEB 1 2 2016
E K. LINDEMAN
E COURT
ORDER AFFIRMING IN PART, REVERSING IN PART A
REMANDING
This is a fast track appeal from a post-divorce decree district
court order involving child custody. Eighth Judicial District Court, Family
Court Division, Clark County; Jennifer Elliott, Judge.
The parties divorced in 2005 and have frequently litigated the
custody of their twin children both before and since the time of their
divorce. The district court appointed a parenting coordinator and later
restricted appellant's ability to file court motions, requiring an ex parte
review of the proposed filing before the matter would be considered. After
appellant refused to return the children to respondent's care at the end of
her visitation, the court suspended appellant's visitation pending an
independent psychological evaluation. Based in part on the results of the
evaluation, the parenting coordinator recommended that appellant have
supervised visitation conditioned upon appellant undergoing drug testing
and attending therapy. Appellant requested the district court to remove
the restriction on filing and place the matter of custody on the schedule,
and separately opposed the parenting coordinator's custody
recommendations. The district court did not allow appellant to file her
motion regarding custody, but did consider appellant's opposition to the
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parenting coordinator's recommendation. The district court adopted the
parenting coordinator's custody recommendations providing appellant
conditional supervised visitation.
Having considered the parties' arguments and the record on
appeal, we conclude that the district court abused its discretion when it
continued to impose the court-filing restriction and prohibited appellant
from filing her proposed motion.' See Jordan v. State ex rel. Dep't of Motor
Vehicles & Pub. Safety, 121 Nev. 44, 62, 110 P.3d 30, 44 (2005) ("[T]his
court examines restrictive orders under an abuse of discretion standard."),
abrogated on other grounds by Buzz Stew, LLC v. City of N. Las Vegas, 124
Nev. 224, 181 P.3d 670 (2008); see also Jones ix Eighth Judicial Dist.
Court., 130 Nev., Adv. Op. 53, 330 P.3d 475, 479-80 (2014) (providing a
four-element test for implementing court-access restrictions). A
"restrictive order cannot issue merely upon a showing of litigiousness,"
Jordan, 121 Nev. at 61, 110 P.3d at 43 (internal quotations omitted), and
"[t]he filings must be more than just repetitive or abusive," and must "be
without an arguable legal or factual basis, or filed with the intent to
harass," Jones, 130 Nev., Adv. Op. 53, 330 P.3d at 480. The district court
order continuing the restriction on filing emphasized the protracted
nature of the parties' custody dispute and the volume of motions filed, but
'The district court described the restriction as a "GOAD Order,"
presumably alluding to Goad v. United States, 661 F. Supp. 1073, 1081-82
(S.D. Tex. 1987), aff'd in part and vacated in part, 837 F.2d 1096 (Fed. Cir.
1987), and Goad v. Rollins, 921 F.2d 69, 70-71 (5th Cir. 1991). We note,
however, that sanctions and court-imposed restrictions on filing, like the
one at issue here, are governed by NRCP 11 and Nevada's vexatious
litigant case law. Jones v. Eighth Judicial Dist. Court, 130 Nev., Adv. Op.
53, 330 P.3d 475, 480 (2014).
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failed to specifically identify which of appellant's previous filings were
harassing and without arguable merit. Thus, the order failed to make
"substantive findings as to the frivolous or harassing nature" of
appellant's filings, and was an abuse of discretion. Id. at 482 (explaining
that "conclusory statements" that a party's "filings have not been made in
good faith and were filed only to harass is not sufficient").
The district court's adoption of the parenting coordinator's
custody recommendation, however, was not an abuse of discretion. See
Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996)
(providing that this court reviews a child custody decision, including
visitation, for an abuse of discretion). Substantial evidence supports the
conclusion that supervised visitation contingent on appellant's therapy
and drug testing serves the children's best interests. See NRS 125.480
(1999); Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004)
(providing that in custody determinations the children's best interest is
paramount); see also Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699,
704 (2009) (explaining that this court will uphold factual findings when
they are supported by substantial evidence). Further, the district court
did not abuse its discretion when it ordered and considered outside
evaluations pursuant to EDCR 5.12(b), which provides that a court may
appoint a neutral expert to perform an evaluation of a party. And while
appellant invokes her fundamental right to parent and argues that it has
been violated by the conditional visitation, she fails to consider
respondent's equally strong liberty interest in raising the children, and the
court's role to determine the best interest of the children. Rico v.
Rodriguez, 121 Nev. 695, 704, 120 P.3d 812, 818 (2005) (explaining that
because in a "custody dispute between two fit parents, the fundamental
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constitutional right to the care and custody of the children is equal," these
disputes are resolved by "applying the best interest of the child standard").
Because the district court did not abuse its discretion when it adopted the
parenting coordinator's custody recommendations, we affirm that portion
of the district court's order.
Accordingly, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.
, C:J.
Parraguir
J.
Douglas
C
Cherry
LIA, J.
I)
cc: Hon. Jennifer Elliott, District Judge, Family Court Division
Noggle Law PLLC
Kelleher & Kelleher, LLC
Eighth District Court Clerk
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