PELKOLA VS. PELKOLA (CHILD CUSTODY) , 2021 NV 24 ( 2021 )

137 Nev., Advance Opinion vis
IN THE SUPREME COURT OF THE STATE OF NEVADA
GREG ELLIOT PELKOLA, No. 80763
Appellant,
vs. MED
HEIDI MARIE PELKOLA,
Respondent.
Appeal from district court orders in a child-custody case
granting a petition for permission to relocate and awarding attorney fees.
Eighth Judicial District Court, Family Division, Clark County; David S.
Gibson, Jr., Judge.
Reversed and remanded.
The Grimes Law Office and Melvin R. Grimes, Las Vegas,
for Appellant.
Radford J. Smith, Chartered, and Radford J. Smith and Kimberly A.
Stutzman, Henderson,
for Respondent.
BEFORE THE SUPREME COURT, PARRAGUIRRE, STIGLICH, and
SILVER, JJ.
OPINION
By the Court, PARRAGUIRRE, J.:
NRS 125C.006(1)(b) provides in relevant part that a "custodial
parent [who] intends to relocate his or her residence to a place outside of
this State . . . and . . . desires to take the child" must first petition the
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district court for permission if the noncustodial parent refuses to consent to
relocation. In this appeal, we consider whether that provision applies only
to relocation from Nevada to a place outside of Nevada, or also from a place
outside of Nevada to another place outside of Nevada. We conclude that it
applies to both. We also clarify that the district court must issue specific
findings for each of the NRS 125C.007(1) factors and, if applicable, the NRS
125C.007(2) factors.
FACTS
Appellant Greg Pelkola and respondent Heidi Pelkola divorced
in 2014. They have three minor children, of whom they share legal custody.
Heidi has primary physical custody of the children.
Sometime after their divorce, Heidi petitioned the district court
under NRS 125C.006 for permission to relocate with the children from
Nevada to Arizona. The district court granted her petition and she and the
children moved to Arizona.
In October 2019, Heidi petitioned the district court under NRS
125C.006 for permission to again relocate with the children, this time from
Arizona to Ohio. After a hearing, the district court concluded that Heidi did
not need permission for the current relocation, because it had already
granted her permission to move from Nevada to Arizona. It nonetheless
granted her petition and issued limited findings as to the relocation's effect
on Greg's visitation rights.
Greg now appeals, arguing that the district court
misinterpreted NRS 125C.006, the statute under which Heidi petitioned for
permission to relocate. He argues that it applies not just to a relocation
from Nevada to a place outside of Nevada, but to subsequent relocations
from a place outside of Nevada to another place outside of Nevada. He
argues that, therefore, the district court abused its discretion by failing to
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issue the findings that NRS 125C.007 requires for a petition under NRS
125C.006. We agree and reverse and remand for the district court to hold
an evidentiary hearing and issue those findings.
DISCUSSION
NRS 125C.006(1) applies
The first issue is whether NRS 125C.006(1) applies here. It
provides, in relevant part, as follows:
1. If.. . . the custodial parent intends to
relocate his or her residence to a place outside of
this State or to a place within this State that is at
such a distance that would substantially impair the
ability of the other parent to maintain a meaningful
relationship with the child, and . . . desires to take
the child with him or her, the custodial parent
shall, before relocating:
(a) Attempt to obtain the written consent of
the noncustodial parent to relocate with the child;
and
(b) If the noncustodial parent refuses to give
that consent, petition the court for permission to
relocate with the child.
Greg argues that NRS 125C.006 applies here. He argues that
its plain meaning requires permission to relocate a child to a place outside
of Nevada—not, as the district court concluded, only from Nevada to a place
outside of Nevada. He argues that, therefore, the plain rneaning applies not
only to the first relocation from Nevada, but to subsequent relocations to
other places outside Nevada. He notes that the district coures
interpretation would allow a parent to move with the court's permission
from Nevada to Arizona, and then simply move to Japan without permission
or giving the other parent an opportunity to be heard.
Heidi responds that NRS 125C.006 does not apply. She argues
that NRS 125C.006s plain meaning applies only to "relocating out of this
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state." She reasons that the statute does not apply here because she is not
moving from Nevada to Ohio, but from Arizona to Ohio. She concludes that
she need not have petitioned for permission to move to Ohio.
We review statutory-interpretation issues de novo. Young v.
Nev. Gaming Control Bd., 136 Nev., Adv. Op. 66, 473 P.3d 1034, 1036
(2020). We will interpret a statute by its plain meaning unless various
exceptions apply, such as ambiguity or absurd results. Id. But the parties
agree that none of those exceptions apply and that we should interpret NRS
125C.006 only by its plain meaning, so we have limited our analysis
accordingly. See Greenlaw v. United States, 554 U.S. 237, 243 (2008) ("[I]n
both civil and criminal cases, in the first instance and on appeal, we follow
the principle of party presentation. That is, we rely on the parties to frame
the issues for decision and assign to courts the role of neutral arbiter of
matters the parties present.").
NRS 125C.006(1) applies in two circumstances: when the
parent with primary physical custody "intends to relocate his or her
residence [1] to a place outside of this State or [2] to a place within this State
that is at such a distance that would substantially impair the ability of the
other parent to maintain a meaningful relationship with the child," and
intends to take the child.
Heidi's analysis of NRS 125C.006(1) is identical to the district
court's. Both refer to the statutes "plain" meaning but reword the relevant
portion before interpreting it. Both refer to "relocating out or Nevada, but
the statute itself refers to "relocat[ing] . . . to a place outside of Nevada.
NRS 125C.006(1). Their phrasing suggests that it applies only to leaving
Nevada ("relocating out or Nevada), but the statutes true phrasing plainly
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includes moving from a place outside of Nevada to some other place outside
of Nevada ("relocat[ing] . . . to a place outside of Nevada).
Heidi is the parent with primary physical custody, she intended
to move to a place outside of Nevada (Ohio), and she intended to take the
children, so NRS 125C.006 plainly applies here.
The district court abused its discretion by issuing inadequate findings under
NRS 125C.007
Although the district court erroneously determined that NRS
125C.006 does not apply and that Heidi did not need permission to relocate,
it nonetheless gave her that permission and issued some findings under
NRS 125C.007. Because NRS 125C.006 did apply and NRS 125C.007
requires the district court to issue certain findings if NRS 125C.006 applies,
the next issue is whether the district court abused its discretion by issuing
inadequate findings under NRS 125C.007.
Greg argues that it did. He notes that the district court did not
address even the threshold requirements, such as the children's best
interest, that the petitioning parent must prove before the district court
considers several other relocation factors. So he asks us to remand for the
district court to hold an evidentiary hearing and issue findings.
Heidi responds that the district court did not need to issue the
findings because NRS 125C.006 does not apply. She acknowledges that the
district court made some findings but she does not address their adequacy.
She adds that Greg waived an evidentiary hearing by agreeing that one was
unnecessary.'
'As we conclude, the district court must issue findings under NRS
125C.007, so we are unpersuaded that either party may waive the necessary
evidentiary hearing.
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NRS 125C.007(1) requires a parent petitioning for permission
to relocate under NRS 125C.006 to dernonstrate to the court that:
(a) There exists a sensible, good-faith reason
for the move, and the move is not intended to
deprive the non-relocating parent of his or her
parenting time;
(b) The best interests of the child are served
by allowing the relocating parent to relocate with
the child; and
(c) The child and the relocating parent will
benefit from an actual advantage as a result of the
relocation.
The district court must issue specific findings for each of the
NRS 125C.007(1) factors. See Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d
1139, 1143 (2015) (holding that the district court must issue specific
findings when making a best-interest determination). The district court did
not do so here, so it abused its discretion by permitting Heidi to relocate.
Further, NRS 125C.007(2) provides that, if the petitioning
parent proves the factors under NRS 125C.007(1),
the court must then weigh the following factors and
the impact of each on the child, the relocating
parent and the non-relocating parent, including,
without limitation, the extent to which the
compelling interests of the child, the relocating
parent and the non-relocating parent are
accommodated:
(a) The extent to which the relocation is likely
to improve the quality of life for the child and the
relocating parent;
(b) Whether the motives of the relocating
parent are honorable and not designed to frustrate
or defeat any visitation rights accorded to the non-
relocating parent;
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(c) Whether the relocating parent win comply
with any substitute visitation orders issued by the
court if permission to relocate is granted;
(d) Whether the motives of the non-relocating
parent are honorable in resisting the petition for
permission to relocate or to what extent any
opposition to the petition for permission to relocate
is intended to secure a financial advantage in the
form of ongoing support obligations or otherwise;
(e) Whether there will be a realistic
opportunity for the non-relocating parent to
maintain a visitation schedule that will adequately
foster and preserve the parental relationship
between the child and the non-relocating parent if
permission to relocate is granted; and
(f) Any other factor necessary to assist the
court in determining whether to grant permission
to relocate.
As with NRS 125C.007(1), the district court must issue specific
findings for each of the applicable NRS 125C.007(2) factors. Here, the
district court's only relevant findings were that "it does not believe that
Heidi's move to Ohio would substantially impede the current timeshare,"
and that "Greg can still exercise his current timeshare." Those findings
seem to allude to NRS 125C.007(2)(e), but the district court abused its
discretion by failing to issue specific findings under the other factors, all of
which may be applicable in this case.
CONCLUSION
NRS 125C.006(1)(b) applies not only to relocation from Nevada
to a place outside of Nevada, but also from a place outside of Nevada to
another place outside of Nevada. Further, the district court must issue
specific findings for each of the NRS 125C.007(1) factors and, if applicable,
the NRS 125C.007(2) factors. Because Heidi sought to move with the
children from Arizona to Ohio and Greg did not consent, NRS
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125C.006(1)(b) applies. And, because the district court concluded
otherwise, it abused its discretion by failing to issue specific findings under
the NRS 125C.007 factors. For those reasons, we reverse and remand to
the district court for findings under each of the applicable NRS 125C.007
factors. We also reverse the district court's award of attorney fees as to the
petition to relocate and instruct the district court to recalculate the award
as necessary.2
"S;;Lte"14 J.
Parraguirre 6.1.7
We concur:
A46rbal...0 J.
Stiglich
J.
Silver
2Greg argues that the district court abused its discretion by awarding
Heidi additional attorney fees. But he cites no authority and his argument
is not cogent, so we decline to consider it. Edwards v. Emperor's Garden
Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006).
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