Lublin v. Lawson (Child Custody) C/W 58673/59276/59447 ( 2013 )

 agreed to use a court-assigned parenting coordinator to attempt to resolve
future disputes.
Shortly thereafter, appellant had respondent arrested for
assaulting him, but the state declined to prosecute her. Subsequently, the
parenting coordinator recommended that appellant undergo a
psychological evaluation, which appellant refused to do. Thus, on March
24, 2011, the district court restricted appellant to supervised weekly
visitation.' On respondent's motion, on June 9, 2011, the district court
awarded respondent temporary sole legal custody until appellant submits
to a psychological evaluation, and the court award respondent primary
physical custody and child support as a result of the change in custody. 2
On August 29, 2011, the district court approved the master's
recommendation as to the amount of child support and denied appellant's
request for child support arrearages. These appeals followed.
Discussion
In these consolidated appeals, appellant argues that the
district court abused its discretion in modifying the physical custody
arrangement, awarding respondent child support based on the custody
modification, and failing to award him child support arreara.ges. Having
"While the March 24, 2011, order is a temporary, nonappealable
order, see In re Temporary Custody of Five Minors, 105 Nev. 441, 443, 777
P.2d 901, 902 (1989) (explaining that no appeal may be taken from a
temporary custody order), because the district court later entered a final
order on June 9, 2011, we have considered appellant's arguments
regarding both orders.
2 To the extent that appellant is challenging the district court's
award of temporary sole legal custody to respondent, we do not address
this issue as we lack jurisdiction to consider it. See Five Minors, 105 Nev.
at 443, 777 P.2d at 902.
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considered appellant's civil proper person appeal statements and the
record on appeal, we conclude that appellant's arguments do not warrant
reversal of the district court's orders.
Child custody
Appellant asserts that the district court abused its discretion
when it modified the custody arrangement because the court (1) applied
the incorrect standard, (2) failed to consider respondent's arrest for
assault, (3) allowed the parenting coordinator to make the custody
determination, and (4) failed to consider the children's best interests. This
court reviews a district court's child custody decision for an abuse of
discretion. See Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541,
543 (1996).
First, the district court did not abuse its discretion in applying
the best interest standard instead of considering whether there had been a
change in circumstances before modifying the parties' custody
arrangement because the parties were sharing joint physical custody at
the time of the modification, as recognized by the district court's August
18, 2009, order. See Rivero v. Rivero, 125 Nev. 410, 430, 216 P.3d 213, 227
(2009) (requiring a court to consider the actual amount of time each party
has custody of the child when determining whether the parties have a
joint physical custody arrangement and to apply the best interest
standard when deciding whether to modify a joint physical custody
arrangement). Second, the district court did not improperly fail to apply a
presumption that it was not in the children's best interests for respondent
to have custody based on her arrest for allegedly assaulting appellant. In
particular, the state determined that respondent should not be prosecuted
based on the allegations, and appellant did not present any evidence not
considered by the state to demonstrate that the domestic violence had
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occurred. See NRS 125.480(5) (requiring "clear and convincing evidence"
that a party engaged in an act of domestic violence in order to presume
that custody with a particular parent is not in a child's best interest).
Third, appellant asserts that the district court lacked
authority to appoint the parenting coordinator, and that the parenting
coordinator was improperly permitted to make the decision regarding the
custody modification. NRCP 53, however, provides that a court may
appoint a special master in a pending action, and the record demonstrates
not only that the parenting coordinator was appointed as a special master,
but also that appellant agreed to the use of a parenting coordinator. See
also NRS 125.005(1) (permitting the district court to appoint a referee in a
custody action). Additionally, the record establishes that, while the
district court considered the parenting coordinator's recommendation, the
district court, rather than the parenting coordinator, ultimately decided
the custody issue. See NRS 125.510(2); see also In re A.B., 128 Nev.
, 291 P.3d 122, 127 (2012).
Finally, the district court did not abuse its discretion in
concluding that a modification to the custody arrangement was in the
children's best interests. See Wallace, 112 Nev. at 1019, 922 P.2d at 543.
The record demonstrates that appellant refused to comply with the district
court's order to undergo a psychological evaluation, and that the court has
indicated that it will revisit the supervised visitation and custody
arrangement if appellant complies with that order. In light of appellant's
refusal to comply with the court's order, we conclude that the district court
did not abuse its discretion in modifying the custody arrangement. 3 See
3Appellant argues that the district court denied him due process by
failing to hold a full evidentiary hearing before the custody modification.
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We conclude, however, that the district court did not deny appellant his
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id. (stating that "[i]t is presumed that a trial court has properly exercised
its discretion in determining a child's best interest"). For these reasons,
we affirm the district court's modification of the custody arrangement and
the interlocutory order for supervised visitation pending appellant's
psychological evaluation. See id.Child support and arrearages
On appeal, appellant also asserts that the district court erred
by awarding respondent child support contrary to the September 29, 2009,
stipulated order, and that the district court erred in failing to award him
child support arrearages. While the parties had previously agreed to
waive child support, an agreement regarding child support is modifiable
by the district court regardless of a contrary agreement between the
parties. Fernandez v. Fernandez, 126 Nev. , , 222 P.3d 1031, 1035-
38 (2010) (concluding that the parties' agreement to never modify a child
support order was unenforceable). Given that appellant does not
challenge the amount of support awarded to respondent, we affirm the
district court's child support award. See Edgington v. Edgington, 119 Nev.
577, 588, 80 P.3d 1282, 1290 (2003) (explaining that this court reviews a
district court's child support award for an abuse of discretion). Further,
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due process rights because appellant was provided with extensive
opportunities to present his positions, as well as the chance to avoid
modification by complying with the requirement that he undergo a
psychological evaluation with a specific psychologist chosen by the court.
See Moser v. Moser, 108 Nev. 572, 576-77, 836 P.2d 63, 66 (1992) ("At a
minimum, observance of this right [to a full and fair custody hearing]
requires that before a parent loses custody of a child, the elements that
serve as a precondition to a change of custody award must be supported by
factual evidence. Furthermore, the party threatened with the loss of
parental rights must be given the opportunity to disprove the evidence
presented.").
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the district court's award of child support does not negate the parties'
agreement to waive arrearages accrued by respondent, and thus, we
affirm the district court's denial of appellant's request for child support
arrearages. See Parkinson v. Parkinson, 106 Nev. 481, 483, 796 P.2d 229,
231 (1990) (explaining that a party may waive his or her current right to
child support through the "intentional relinquishment of a known right"),
abrogated on other grounds by Rivero, 125 Nev. at 435, 216 P.3d at 230-
31).
For the reasons discussed herein, we
ORDER the judgments of the district court AFFIRMED. 4
4We have reviewed appellant's remaining contentions, and we
conclude they are without merit. We deny appellant's February 3, 2012,
February 15, 2012, and April 10, 2012, motions. In addition, we deny
respondent's March 14, 2013, motion because it is not properly before this
court and needs to be addressed by the district court in the first instance.
We have reviewed all of the additional documentation submitted in
these appeals and, to the extent that documentation was part of the
appellate record, and thus, is properly before us, we have considered it in
resolving these appeals. Further, we have reviewed respondent's
September 10, 2012, letter, and in regard to any confusion surrounding an
order from this court regarding child support, we clarify that this court
has never issued an order directing respondent to pay child support
arrearages.
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cc: Hon. Mathew Harter, District Judge
Abraham Lublin
Mary D. Perry
April Lawson
Eighth District Court Clerk
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