Ahrens v. Ahrens (Child Custody) ( 2014 )

 consider the factors enumerated in NRS 125.480(4), including whether a
party has engaged in any act of domestic violence, either against the child
or the parent of the child. NRS 125.480(4)(k). If the district court
determines by clear and convincing evidence that a party has committed
domestic violence, there is a rebuttable presumption that joint custody is
not in the best interest of the child. NRS 125.480(5).
This court reviews a district court's custody determination for
an abuse of discretion, Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d
541, 543 (1996), and will not set aside the district court's factual findings
unless they are clearly erroneous or not supported by substantial evidence.
Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). In this
case, the district court considered a letter written by appellant, as well as
testimony from both parties, and concluded that appellant was a
perpetrator of domestic violence throughout the marriage. This court will
not reweigh the credibility of witnesses on appeal, as that duty rests
within the trier of fact's sound discretion. Castle v. Simmons, 120 Nev. 98,
103, 86 P.3d 1042, 1046 (2004). Having reviewed the record, we conclude
that the district court did not abuse its discretion in applying the
presumption under NRS 125.480(5) and awarding respondent primary
physical custody. 2
2 Appellant requested a transcript of the evidentiary hearing, but
failed to serve the court reporter or pay for the transcripts. NRAP
9(a)(3)(B), (a)(4). Appellant has the burden of providing this court with an
adequate appellate record, see Carson Ready Mix, Inc. v. First Nat'l Bank
of Nev., 97 Nev. 474, 476, 635 P.2d 276, 277 (1981), and any evidence not
provided in the record on appeal is presumed to support the district court's
decision. Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172
P.3d 131, 135 (2007).
SUPREME COURT
OF
NEVADA
2
(0) 1947A en
Appellant next argues that the district court abused its
discretion because it did not order a custody evaluation. Appellant waived
this argument, however, because there is no indication from the record
that he requested such an evaluation below and he provides no authority
that would impose an affirmative duty on a district court to order such an
evaluation in this case. See Wolff v. Wolff, 112 Nev. 1355, 1363-64, 929
P.2d 916, 921 (1996) (providing that generally an argument not raised
below is waived on appeal).
Appellant next argues that his court-ordered child support is
improper because he no longer earns the income upon which the support
amount is based. Having reviewed the record, we conclude that the
district court did not abuse its discretion in calculating the child support
award. 3 See Wallace, 112 Nev. at 1019, 922 P.2d at 543 (explaining that
this court reviews a district court's child support award for an abuse of
discretion).
Finally, appellant argues that respondent was obligated to
maintain appellant on her health insurance during the divorce proceeding,
and her failure to do so caused him to incur medical expenses. The district
court found that appellant's lapse in health insurance coverage was
largely due to his own neglect or misunderstanding, rather than
respondent's fault. Appellant has pointed to no evidence in the record
demonstrating otherwise. See Cuzze v. Univ. & Cmty. Coll. Sys. of Nev.,
3 We note that a child support award may be modified upon a
showing of changed circumstances since the award was made, see NRS
125B.145(4), but such a motion must be brought in the first instance in
the district court. See Wolff, 112 Nev. at 1363-64, 929 P.2d at 921.
SUPREME COURT
Of
NEVADA
3
(0) 1947A
123 Nev. 598, 603, 172 P.3d 131, 135 (2007). Thus, we conclude that the
district court did not abuse its discretion.
For the reasons discussed above, we
ORDER the judgment of the district court AFFIRMED.
C.J.
Picker
Saitta
cc: Hon. William S. Potter, District Judge, Family Court Division
Dale P. Ahrens
Warm Springs Law Group
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) 1947A afelp