Caruso v. Maize (Child Custody) ( 2015 )

 domestic violence conviction but reasoned that NRS 125C.230's
presumption against placing a child in the custody of a parent who
committed domestic violence was not sufficiently persuasive to preclude
an award of custody to Maize. As a result, the district court granted
primary physical custody to Maize. Caruso appealed and this court
reversed and remanded the district court's order because the district court
failed to make adequate findings of fact to overcome NRS 125C.230's
presumption. On remand, the district court issued a revised and
expanded order granting primary physical custody to Maize.
Caruso now appeals and raises two issues: (1) whether, the
district court erred in not applying the law-of-the-case doctrine and (2)
whether the district court abused its discretion in awarding primary
physical custody to Maize.'
Standard of review
We review de novo the application of the law-of-the-case
doctrine because this doctrine concerns the effect of prior appellate
decisions about principles or rules of law. Rennels v. Rennels, 127 Nev.,
'Caruso also argues that the district court made various other errors
in its factual findings. These assignments of error challenge the district
court's assessment of the weight and credibility of the evidence and factual
findings that the district court made but did not rely upon in its legal
conclusions. We do not reevaluate a district court's weight and credibility
determinations. Ellis v. Carucci, 123 Nev. 145, 152, 161 P.3d 239, 244
(2007) (refusing to make credibility determinations on appeal); Quintero v.
McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000) (refusing to
reweigh evidence on appeal). Furthermore, we will not reverse a
judgment for harmless error. See NRCP 61; see also Wyeth v. Rowatt, 126
Nev. 446, 465, 244 P.3d 765, 778 (2010) ("When an error is harmless,
reversal is not warranted."). Therefore, these assignments of error are
without merit.
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Adv. Op. 49, 257 P.3d 396, 399 (2011) (reviewing issues of law de novo);
Dictor v. Creative Mgmt. Servs., LLC, 126 Nev. 41, 44, 223 P.3d 332, 334
(2010) (explaining that the law-of-the-case doctrine applies to previously
decided "principle[s] or rule[s] of law").
We review a district court's custody determination for an
abuse of discretion. Rennels, 127 Nev., Adv. Op. 49, 257 P.3d at 399. "A
district court's factual determinations will not be set aside unless they are
clearly erroneous and not supported by substantial evidence." Dewey v.
Redevelopment Agency, 119 Nev. 87, 93, 64 P.3d 1070, 1075 (2003).
"Substantial evidence is that evidence which a reasonable mind might
accept as adequate to support a conclusion." J.D. Constr., Inc. v. IBEX
Int'l Grp., LLC, 126 Nev. 366, 380, 240 P.3d 1033, 1043 (2010) (internal
quotations omitted). When reviewing the district court's decision on
appeal, we do not reweigh the evidence or make credibility
determinations. Ellis v. Carucci, 123 Nev. 145, 152, 161 P.3d 239, 244
(2007) (refusing to make credibility determinations on appeal); Quintero v.
McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000) (refusing to
reweigh evidence on appeal).
The district court properly refused to apply the law-of-the-case doctrine
Caruso argues that the district court erred by not applying the
law-of-the-case doctrine to reverse its award of primary physical custody
to Maize and by making additional factual findings. This court's prior
order reversed and remanded the district court's initial custody order for
further proceedings because the district court failed to properly apply NRS
125C.230's rebuttable presumption and did not provide adequate factual
findings to support its decision awarding custody. Caruso v. Maize,
Docket No. 62470 (Order of Reversal and Remand, January 21, 2014).
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"The law-of-the-case doctrine provides that when an appellate
court decides a principle or rule of law, that decision governs the same
issues in subsequent proceedings in that case." Dictor, 126 Nev. at 44, 223
P.3d at 334. This doctrine does not apply to issues that an appellate court
does not address. Recontrust Co. v. Zhang, 130 Nev., Adv. Op. 1, 317 P.3d
814, 818 (2014). Because this court's prior order did not establish the law
of the case with regard to who should be awarded custody or preclude the
district court from amending its findings, the district court did not err by
refusing to apply the law-of-the-case doctrine with regard to these issues.
The district court did not abuse its discretion by awarding primary
physical custody to Maize
Caruso argues that the district court abused its discretion by
awarding custody to Maize because (1) there was insufficient evidence to
overcome NRS 125C.230's presumption against granting custody to Maize,
(2) the district court did not adequately consider that Maize's income was
below the poverty line, (3) the district court improperly refused to consider
Maize's purported violation of NRS 125C.200, (4) the district court did not
find that Caruso was an unfit parent, (5) the district court improperly
considered Caruso's and Maize's abilities to care for the twins when
awarding custody.
Substantial evidence supports the district court's finding that NRS
125C.230(1)'s domestic violence presumption was overcome
If a parent "has engaged in one or more acts of domestic
violence against the child, a parent of the child{,] or any other person
residing with the child," this creates a rebuttable presumption that
placement in the perpetrator's custody is not in the child's best interest.
NRS 125C.230(1). This presumption may be overcome if the district court
"fflind[s] that the custody or visitation arrangement ordered by the
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[district] court adequately protects the child and the parent or other victim
of domestic violence who resided with the child." NRS 125C.230(1)(b).
Maize was convicted of committing domestic violence against
Caruso's mother, with whom Maize and the twins were living at the time.
Thus, NRS 125C.230's rebuttable presumption must be overcome before
the district court may award physical custody of the twins to Maize. See
NRS 125C.230(1).
Here, the district court identified three reasons to overcome
this presumption. First, it found that because the incident of domestic
violence was caused by a conflict between Maize and Caruso's mother,
Maize's move from Las Vegas to Missouri created a physical separation
between Maize and Caruso's mother that protected both Caruso's mother
and the twins from any future violence. Second, the district court found
that Maize continued to live with Caruso and his mother for multiple
months after the domestic battery without further incident. Third, the
district court found that Maize completed domestic violence counseling.
All three findings are supported by substantial evidence in the record, and
the district court's factual findings reasonably support the conclusion that
Maize did not pose a threat to Caruso's mother or the twins. Therefore,
the district court did not abuse its discretion when concluding that NRS
125C.230's presumption was overcome.
The district court properly considered Maize's financial condition
The district court may consider the impact of a parent's
financial condition on his or her ability to act as a child's guardian when
assessing a child's best interest. See Arnold v. Arnold, 95 Nev. 951, 952,
604 P.2d 109, 110 (1979) (noting, without disapproval, that the district
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court weighed the mother's "financial problems" against other factors
when making a custody determination). 2
Here, the district court reasonably considered the sufficiency
of Maize's income in two ways. First, it observed that Maize's present
income might not represent the family's true financial condition because it
did not include any child support or welfare benefits that the twins may be
entitled to receive. Second, it observed that Maize's housing situation
demonstrated that she was able to adequately provide for the twins at her
present income level. These findings are supported by substantial
evidence in the record. Thus, the district court did not abuse its discretion
by considering Maize's financial condition and concluding that it did not
adversely impact her ability to be the twins' guardian.
The district court did not overlook Maize's alleged violation of NRS
125C.200
NRS 125C.200 requires that a custodial parent intending to
relocate a child from Nevada "attempt to obtain the written consent of the
noncustodial parent" before the planned move. "The failure of a parent to
comply with the provisions of this section may be considered as a factor if
a change of custody is requested by the noncustodial parent." NRS
125C.200 (emphasis added). Since NRS 125C.200 uses "may" and not
"shall," it permits, but does not require, the district court to consider a
violation of the statute's consent requirement when making a custody
determination. See State of Nev. Pimps. Ass'n v. Daines, 108 Nev. 15, 19,
2 SinceNevada law allows the district court to consider the parents'
financial conditions when determining whether they could adequately
provide for the child, see Arnold, 95 Nev. at 952, 604 P.2d at 110, we
decline to address other states' caselaw authorizing this consideration.
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824 P.2d 276, 278 (1992) (explaining that, in statutes, "may" is generally
permissive, not mandatory).
Here, the district court weighed the evidence of the parties'
conduct relating to Maize's move from Las Vegas to Missouri in August
2011 and found that Caruso knew of and helped facilitate Maize's move.
It also found that Caruso instructed Maize not to return to Nevada. Thus,
Caruso's argument lacks merit and the district court did not abuse its
discretion because it actually considered Maize's purported violation of
NRS 125C.200.
The district court had discretion to grant custody to Maize despite
finding that Caruso was not an unfit guardian
"It is well established that when deciding child custody, the
sole consideration of the court is the child's best interest." Blanco v.
Blanco, 129 Nev., Adv. Op. 77, 311 P.3d 1170, 1174 (2013). Thus, a child's
best interest outweighs a parent's "competing constitutionally protected
interest in the parent-child relationship." Clark Cnty. Dist. Attorney v.
Eighth Judicial Dist. Court, 123 Nev. 337, 346 n.23, 167 P.3d 922, 928
n.23 (2007). Furthermore, Nevada law does not require the district court
to award joint custody to both parents if they are qualified guardians. See,
e.g., NRS 125.480(3) 3 (providing that custody may be awarded to both or
one parent in accordance with the child's best interest); NRS 125.490(1)
(establishing a presumption that joint custody is in the child's best
interest when the parents have agreed to joint custody). Therefore, the
3 After the district court entered its revised order and the parties
briefed this appeal, NRS 125.480 and NRS 125.490 were repealed and
their provisions were substantively readopted in NRS Chapter 125C.
2015 Nev. Stat., ch. 445, §§ 5-6, 8, 19. These statutory changes do not
alter NRS 125.480's or NRS 125.490's application to the present case.
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district court did not abuse its discretion by awarding custody to Maize,
even though it found that Caruso was not an unfit guardian.
The district court had discretion to consider Maize's and Caruso's
ability to care for the twins in determining custody
Because NRS 125.480(4)'s list of factors that the district court
must consider when evaluating a child's best interests is non-exhaustive,
its omission of the ability to care for a child does not preclude a district
court from considering this as a factor. Therefore, the district court did
not abuse its discretion by considering Maize and Caruso's abilities to care
for the twins when awarding custody.
Conclusion
For the foregoing reasons, the district court did not err by
refusing to apply the law-of-the-case doctrine or abuse its discretion when
awarding custody to Maize. Therefore, we
ORDER the judgment of the district court AFFIRMED.
Saitta
J.
J.
cc: Hon. Cynthia Dianne Steel, District Judge, Family Court Division
F. Peter James
Sterling Law, LLC
Eighth District Court Clerk
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