Miller v. Pease (Child Custody) ( 2014 )

 Appellant next contends that the district court committed
reversible error by admitting an audio recording of a conversation between
appellant and one of the minor children. Appellant argues that the
recording was not authenticated or disclosed to him before trial. The
record indicates that appellant did not object to admitting the recording so
long as he was given an opportunity to listen to it at the conclusion of the
proceeding. The district court noted in its order that a copy of the
recording was mailed to appellant shortly after the hearing. Thus, by
failing to object, appellant waived this issue on appeal. See Wolff u. Wolff,
112 Nev. 1355, 1363-64, 929 P.2d 916, 921 (1996) (holding that an
argument or objection not raised below is waived on appeal).
Appellant further contends that the district court improperly
admitted text messages relating to settlement negotiations over his
objection. Appellant failed to include the text messages in the joint
appendix. While the text messages were discussed at the hearing to a
limited extent, we cannot determine their exact content and whether they
related to any settlement discussions. Appellant bears the burden of
creating an adequate appellate record, and his failure to do so leaves this
court unable to adequately evaluate his argument. Carson Ready Mix,
Inc. v. First Nat'l. Bank of Nev., 97 Nev. 474, 476, 635 P.2d 276, 277
(1981).
Finally, appellant contends that the district court abused its
discretion in failing to divide the parties' property interests. The district
court declined to decide the property issues, stating that it lacked subject
matter jurisdiction. We conclude that the district court had jurisdiction to
decide the property issues under Landreth v. Malik, 127 Nev. 251P.3d 163 (2011). In Landreth, this court held that district court judges
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sitting in family court have the authority to hear property matters
between unmarried parties. Id. at , 251 P.3d at 166-67. Additionally,
the Ninth Judicial District Court is a court of general jurisdiction, which
has original jurisdiction in all cases outside the jurisdiction of justice
courts. See Nev. Const. art. 6, § 6(1); NRS 3.019 (requiring two judges in
the Ninth Judicial District); NRS 3.0105(1) (establishing family courts in
judicial districts with populations exceeding 100,000 persons); Landreth,
127 Nev. at , 251 P.3d at. 170 (discussing the general jurisdiction of
district courts in jurisdictions without family courts).
The issue of subject matter jurisdiction may be raised at any
time and by this court sua sponte. Landreth, 127 Nev. at , 251 P.3d at
166. While we acknowledge that judicial estoppel may apply in this case
because appellant took the opposite position below by arguing that the
court lacked subject matter jurisdiction over all property issues, it is a
discretionary doctrine. Mainor v. Nault, 120 Nev. 750, 765, 101 P.3d 308,
318 (2004). Here, the considerations of judicial estoppel do not outweigh
the considerations of judicial economy. To hold otherwise would cause a
court of general jurisdiction to consider multiple cases where one would
suffice. In the interest of judicial economy, we conclude that respondent's
counterclaim for property division should be resolved in the underlying
proceeding. Cnty. of Clark, ex rel. Univ. Med. Ctr. v. Upchurch, 114 Nev.
749, 752-53, 961 P.2d 754, 756-57 (1998) (noting that judicial economy is
an important consideration in the litigation process).
Accordingly, we reverse the portion of the district court's order
declining to resolve the property issues and we remand this matter to the
district court for further proceedings relating to respondent's counterclaim
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for property division. We affirm the district court's order in all other
respects.
It is so ORDERED.
Hardesty
Z/1774' , J.
Douglas
CHERRY, J., dissenting:
I cannot agree with my colleagues on the property issues.
While the district court had subject matter jurisdiction to resolve the
property issues, appellant is estopped from asserting this argument
because he successfully asserted the opposite position below. This court
may invoke judicial estoppel when: (1) a party takes two positions; (2) in
judicial proceedings; (3) the party successfully asserted the first position;
(4) the positions are inconsistent, and (5) the first position did not result
from ignorance, fraud, or mistake. Mainor v. Nault, 120 Nev. 750, 765,
101 P.3d 308, 318(2004) (noting that judicial estoppel is discretionary and
intended to protect the court's integrity). The appellate record indicates
that respondent filed a counterclaim in which she sought to divide the
parties' property, and in his answer to her counterclaim, appellant
specifically asserted that the district court lacked jurisdiction to hear any
issues relating to personal or business property. The district court agreed
with appellant and dismissed respondent's property claims. Appellant's
position that the district court lacked jurisdiction was intentional, as he
admitted that he intended to file a separate action to partition omitted
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property. See Arnie v. Arnie, 106 Nev. 541, 542, 796 P.2d 233, 234 (1990).
Appellant's argument on appeal that the district court indeed had
jurisdiction to divide property is precluded by judicial estoppel. Thus, I
would affirm the district court's order, and for that reason, I respectfully
dissent.
, J.
cc: Ninth Judicial District Court Department 1
Shawn B. Meador, Settlement Judge
Mills & Mills
Jamie C. Henry
Douglas County Clerk
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