MYERS v. HASKINS (CHILD CUSTODY) ( 2022 )

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138 Nev., Advance Opinion S \
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
LISA S. MYERS,
No. 83576-COA
Appellant,
VS.
~ FILED »
CALEB OBADIAH HASKINS, .
Respondent. | i JUN 30 20 5
c hs A BROWN }
B ~
a IEF DEPUTY CLERK
Appeal from a district court order denying a motion to modify
chido dade
custody of a minor child. Eighth Judicial District Court, Farnily Court
Division, Clark County; T. Arthur Ritchie, Jr., Judge.
Reversed and remanded with instructions.
Patricia A. Marr, Ltd., and Patricia A. Marr, Henderson.
for Appellant. :
Caleb Obadiah Haskins, Philomath, Oregon.
Pro Se.
BEFORE THE COURT OF APPEALS, GIBBONS, C.J., TAO and BULLA,
Je.
OPINION
By the Court, GIBBONS, C.J.:
Nearly 30 years ago, the Nevada Supreme Court held that
district courts may deny a motion to modifv child custody without holding
an evidentiary hearing if the movant fails to demonstrate a prima facie case
for modification. Rooney v. Rooney, 109 Nev. 540, 542-43, 653 P.2d 123, 124-
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25 (1993). Since that decision, district courts have struggled with an
unanswered question: what sources may a district court consider in
determining whether a movant has demonstrated a prima facie case for
modification? Today, we answer this question. We hold that when a district
court seeks to determine if the movant has demonstrated a prima facie case
for modification under Rooney. it must generally consider only the properly
alieged facts in the movant's verified pleadings, affidavits, or declarations.
It must not consider the alleged facts or offers of proof the nonmovant
provides.
Despite this general rule. we also announce an exception. We
hold that a district court may lcok to the nonmovant’s evidentiary support
when it “conclusively establishes” the falsity of the movant’s allegations.
The rules we announce today will help align current practice with Rooney's
central purposes: discouraging challenges to temporary custody orders and
preventing repeated and insubstantial motions to modify custody. See id.at 543 n.4, 853 P.2d at 125 n.4. While Nevada courts generally adhere to
the policy of deciding a case fully upon its merits, especially in child custody
cases, see Dagher v. Dagher, 103 Nev. 26, 28, 731 P.2d 1329, 1330 (1987),
this opinion reiterates that a movant must first show the district court-—
using specific, properly alleged facts—-that his or her motion is potentially
meritorious on its face.
FACTS AND PROCEDURAL HISTORY
Caleb Obadiah Haskins and Lisa 8S. Myers married in 2009 and
divorced in 2012. They have one minor’ child together: S8.H. (now 12 years
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old). Under the current custedy order,! they share joint legal custody of
S.H., except Caleb has sole legal custody for medical decisions. Caleb has
primary physical custody of S.H. Because Caleb lives in Oregon and Lisa
lives in Nevada, Lisa is aliotted, at a minimum, spring break and summer
break for parenting time.
In 2020, Lisa failed to return S.H. to Caleb after summer break.
According to Lisa, she purchased S.H.’s plane ticket and took her to the
airport. But upon arrival, S.H. expressed fear about returning to Caleb,
had a panic attack, vomited twice in the restroom, and refused to board the
plane. Lisa alleged that she tried later that same day to get S.H. to board
the plane, but S.H. “began crying, stated her stomach was still ill, and she
again, refused to go.” Lisa then notified Caleb that she would not return
S.H.
Caleb consequently filed a motion requesting that the court
enforce the custody order by ordering Lisa to return 8.H., modify the form
of Lisa’s parenting time to virtual, and issue a standard behavior order.
Lisa in turn opposed Caleb’s motion and filed a countermotion to modify
physical custody. In that opposition and countermotion, Lisa alleged
generally, and with specific exaraples, that-Caleb medically, physically, and
educationally neglected S.H.; verbally and emotionally abused S.H.; made
S.H. sleep in a nonbedroom on a foam mattress on the floor because of an
1Between 2010 (when the parties filed for divorce) and 2014 (when
Caleb petitioned for and was granted permission to relocate to Oregon with
S.H.}, Lisa filed ten different appeals——all of which the supreme court
dismissed on procedural grounds. Lisa more recently filed an unsuccessful
motion to modify physica! custedy in 2018. The record does not reveal the
extent to which modifications of custody have been sought between 2014
and 2018.
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overcrowded house; and denied Lisa parenting time and substantially
interfered with it when it did occur. Lisa supported her opposition and
countermotion with a declaration. See NRS 53.045 (permitting an unsworn
declaration signed by the declarant under penalty of perjury in lieu of an
affidavit). Caleb responded, denied the allegations, and provided
documents and reports in suppert of his position.
The district court then held a nonevidentiary hearing on Caleb's
motion, which it granted. However, the court also found sua sponte that
Lisa had demonstrated adequate cause to reopen discovery and provided
her the opportunity to gather sufficient proof of her claims in her
countermotion to modify physical custody.? It then granted the parties 90
days to conduct discovery.
At the end of ihe discovery period, Lisa submitted informal?
offers of proof she claimed supported her allegations. Caleb likewise offered
documents that he claimed contradicted Lisa’s allegations. At the
2NRCP 16.21(a) generally prohibits postjudgmeni discovery in family
law matters. NRCP 16 does, however, allow a court to order postjudgment
discovery in family law matters in two situations: (1) if a court.has ordered
an evidentiary hearing in a postjudgment child custody matter, or (2) if a
court finds “good cause” ter the discovery. NRCP 16.21(b). In this case, the
district court apparently ordered the discovery under the second exception
rather than the first; however, it labeled it as “adequate cause.”
3Lisa did not provide any affidavits or declarations from the witnesses
she planned to call at an evidentiary hearing. Rather, she noted the
substance of specific individuals’ anticipated testimony. The individuals
included both a police officer and a school counselor from Oregon, Caleb's
former spouse, and S.H.s maternal grandmother. Lisa’s original
allegations were supported by a declaration, as was her reply to Caleb’s
“discovery.” However, Caleb did not cbiect to these offers of proof under any
of the grounds listed in Rooney. See 109 Nev. at 543. 853 P.2d at 125.
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subsequent nonevidentiary nearing, the district court stated that it was a
“elose call” as to whether Lisa had demonstrated adequate cause for an
evidentiary hearing because of the decuments Caleb provided and the
statements he made in his supporting declaration. But the court was
concerned that Lisa did not have a full opportunity to respond tc Caleb's
documents and allegations,’ so it allowed Lisa time to submit a responsive
declaration herself. Lisa did so, largely contesting Caleb’s allegations,
explaining some of the documents he provided and arguing some cf those
documents even supported her claims.
After Lisa filed her responsive declaration, the district court
denied Lisa’s countermotion to modify physical custody, without holding an
evidentiary hearing. In denying the countermotion, the court summarily
concluded that
the countermotion filed by Lisa Myers and her
supporting filings de not state facts that would
support a substantial change in circumstances
affecting the welfare of the child, and that the
child’s best-interest is served by the modification.
The countermotiorn iacks merit and should be
denied
This appeal followed.
ANALYSIS
Now on appeal. Lisa argues that the district court abused its
discretion in denying her countermotion to modify physical custody without
first holding an evidentiary hearing: She claims that she presented a prima
facie case for modification because she provided declarations and informal
offers of proof in the form of summaries of anticipated witness testimony,
4Caleb provided his disciosures, which were lengthy, Just days prior
to the nenevidentiary hearing.
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documents, and video. Caleb. however, argues the court did net abuse its
discretion in denying Lisa’s countermotion without holding an evidentiary
hearing. He claims instead that Lisa failed to demonstrate a prima facie
case for modification because his “discovery responses addressed and
disapproved [sic] all [of Lisa’s] allegations.”°
We review a district court’s decision to deny a motion to modify
physical custody without holding an evidentiary hearing for an abuse of
discretion. See Bautista v. Picone, 134 Nev. 334, 388, 419 P.3d 187, 160
(2018). A district court abuses its discretion only when “no reasonable judge
could reach a similar conclusion under the same circumstances.” In re
Guardianship of Rubin, 137 Nev., Adv. Op. 27, 491 P.3d 1, 6 (2021) (internal
quotations omitted) (quoting Leavitt v. Siems, 130 Nev. 503, 509, 330 P.3d
1, 5, (2014)). But “deference is not owed to legal error, or to findings so
conclusory they may mask legal error.” Davis v. Ewalefo, 131 Nev. 445, 450,
352 P.2d 1139, 1142 (2015) (internal citations omitted). We “must be
satisfied that the court’s determination was made for the appropriate
reasons.” Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328. 330 (1993).
Generally, “[l|itigants in a custody battie have the right toa full
and fair hearing concerning the ultimate disposition of a child.” Moser v.
Moser, 108 Nev. 572, 576. 836 P.2d 63, 66 (1992). But when a movant seeks
to modify physical custody, a district court only needs to hold an evidentiary
hearing if the movant demonstrates “adequate cause” for one. Roonex, 109
5Caleb primarily relies on an Oregon Child Protective Services (CPS)
report he submitted to the district court, which determined the claims made
against him were unsubstantiated. Apparently, after Lisa returned $.H.
pursuant to the district court's order, she requested a welfare check for S.H.,
which resulted in a CPS investigation. Caleb claims that this CPS report
addresses the “bulk of [Lisa's] allegations [from her offers of proof].”
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Nev. at 542, 853 P.2d at 124. “Adequate cause” arises if the movant
demonstrates a prima facie case for modification. Id. at 543, 853 P.2d at
125. And to modify physical custody in Nevada, the movant must show that
“(1) there has been a substantial change in circumstances affecting the
welfare of the child, and (Z) the child's best interest is served by the
modification.” Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 983
(2022) (quoting Ellis v. Carucct, 123 Nev. 145, 150, 161 P.3d 239, 242
(2007)). .
This case asks us to address what evidence and allegations the
district court may consider in determining whether the movant has
demonstrated a prima facie case for modification. In determining whether
a movant has demonstrated a prima facie case for modification of physical
custody, the court musi accept the movant’s specific allegations as true. See
Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. Ct. App. 1997) (providing that,
in evaluating whether the movant established a prima facie case for custody
modification, district courts must accept the movant’s allegations as true);
Volz v. Peterson, 667 N.W.2d 637, 641 (N.D. 2003) (same);® cf Barelli v.
6In Rooney, the supreme court patterned the adequate cause standard
after custody modification standards used in other states. 109 Nev. at 542-
43, 853 P.2d at 124-25. The supreme court also stated that the Rooney
standard “comports with section 410 of the Uniform Marriage and Divorce
Act [(UMDA)).” Id. at 543 n.4, 853 P.2d at 125 n.4. We therefore look to
section 410 of the UMDA, the cases interpreting it, and the authority the
supreme court relied on in adopting the Rooney standard for instruction in
interpreting Rooney. Cf. Las Vegas Dev. Assocs., LLC v. Kighth Judiciel
Dist. Court, 130 Nev. 334, 341, 325 P.3d 1259, 1264 (2014) (finding federal
court interpretations of FRE 612 “instructive” in interpreting NRS 50.125—
Nevada's parallel provision to FRE 612); Beazer Homes Neu., Inc. v. Highth
Judicial Dist. Court. 120 Nev. 575, 583, 97 P.3d 1132, 1137 (2004) (holding
that because NRS 78.585 “was patterned after Section 105 of the 1969
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Barelli, 113 Nev. 873, 879-80, 944 P.2d 246, 249-50 (1997) (requiring district
courts to accept a movant’s allegations as true in considering whether the
movant demonstrated a prima facie case under NRCP 41(b)); Mann v. State,
118 Nev. 351, 354, 46 P.3d 1228, 1230 (2002).(‘[W]here . . . something more
than a naked allegation has been asserted, it is error to resolve the apparent
factual dispute without granting... an evidentiary hearing... .” (quoting
Vaillancourt v. Warden, 90 Nev. 431, 432, 529 P.2d 204. 205 (1974))). Thus,
the district court should not require that the movant prove his or her
allegations before holding an evidentiary hearing. See Betzer v. Beizer, 749
S.W.2d 694, 695 (Ky. Ct. Avp. 1988) (holding affidavits alone may be
considered in détermining adequate cause for a hearing); Geibe, 571 N.W.2d
at 777; cf. DCR 13(6) (“Factual contentions involved in any pre-trial or post-
trial motion shall be initially presented and heard upon affidavits.”):
Rooney, 109 Nev. at 542-43, 853 P.2d at 124-25 (permitting a court to deny
a inotion to modify physical custody based solely on affidavits and points
and authorities—both of which are not evidence).7
Furthermore. a district court should not weigh the evidence or
make credibility determinations before holding an evidentiary hearing. Cf
Barelit, 113 Nev. at 879-80, 944 P.2d at 249-50 (holding that, in evaluating
Model Act, we may look to the... case law interpreting provisions based
on” that act). .
Section 410 of the UMDA references only affidavits as. the
evidentiary mechanism through which a movant establishes adequate
cause for a hearing. Unif. Marriage & Divorce Act § 410 (1973), 9A U.L.A.
538 (1998): see also Rooney, 109 Nev. at 543 n.4, 853 P.2d at 125 n.4. This
is why Kentucky. which also adopted section 410, relies solely upon
affidavits in determining whether a movant has dernonstirated adequate
cause for a hearing. Betzer, 749 S.W.2d at 695.
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whether the movant has demonstrated a prima facie case for the purposes
of NRCP 41, a court must neither “pass upen the credibility of the witnesses
nor weigh the evidence” and will “disregard any contradictory evidence
presented by the defense” (internal quotations omitted)); Fernandez v.
Admirand, 108 Nev. 963, 968, 843 P.2d 354, 358 (1992) (“The credibility of
the witnesses and the weight of the evidence are immateriai to the
presentation of a prima facie cass.”). Notably, the supreme court has
implicitly held that. under Rooney; the place to present evidence ‘for a
district court to-weigh is at an evidentiary hearing. See Arcella v. Arcello,
133 Nev, 868. 872. 407 P.3d 341, 346 (2017) (noting that. in the Rooney
context, a district court may not decide a motion to modify custody “upon
contradictory sworn pleadings [and] arguments of counsel” (alteration in
origina!) (quoting Mizrachi v. Mizrachi, 132 Nev. 666, 678, 385 P.3d 982,
990 (Ct. App. 2016))).8 Indeed. evidentiary hearings are designed with this
purpose in mind: to resolve disputed questions of fact. See DCR 13(6)
(recognizing that disputed factual points may be resolved at evidentiary
’See also Pridgeor. v. Superior Court, 655 P.2d 1, 5: (Aria, 1982)
(holding that a court cannot conduct a “trial by affidavit” and atternpt to
“weigh the credibility of the opposing statements” in determining adequate
cause for a hearing); Boland v. Murtha, 800 N.W.2d.179. 183 (Minn. Ct.
App. 2011) (holding that district courts must “disregard the contrary
allegations in the nonmoving party’s affidavits” when determining if the
movant demonstrates a prima facie case for modification sufficient to hold
an evidentiary hearing); ONeill v. O'Neill, 619 N.W.2d 855, 858 (N.D. 2009)
(holding that the district court abused its discretion by weighing conflicting
testimony in determining if the movant presented a prima facie case
warranting an evidentiary hearing).
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hearings); EDCR 5.205(g)® (providing that exhibits attached to motions do
not constitute substantive evidence unless admitted); cf. Nev. Power Co. v.
Fluor Ill., 108 Nev. 638, 644-45, 837 P.2d 1354, 1359 (1992) (recognizing
that conducting an evidentiary hearing is the only way to properly resolve
questions of fact concerning whether to dismiss a party's suit as a discovery
sanction). .
Despite this holding, section 410 of the UMDA and persuasive
authority from other states contemplate that a nonmovant may file an
opposing affidavit. See, e.g., Unif. Marriage & Divorce Act § 410 (1973), 9A
U.L.A. 538 (1998); Boland, 800 N.W.2d at 183; Mock v. Mock, 673 N.W.2d
635, 637-38 (N.D. 2004); In re Parentage of Jannot, 37 P.3d 1265, 1268
(Wash. Ct. App. 2002). We consequently recognize that nonmovants may
allege facts and provide offers of proof that may address the allegations the
movant has presented. And while district courts may only weigh credibility
and evidence at an evidentiary hearing, they nonetheless need not blind
-themselves to evidence a nonmovant presents if it “conclusively
establish[es]” the movant’s claims are false. See Mock, 673 N.W.2d at 637-
38 (internal quotations omitted). Adopting this limited exception serves the
purposes for which Rooney was adopted in the first place: “(1) discourag[ing]
contests over temporary custody; and (2) prevent[ing] repeated or
insubstantial motions for modification.” See Rooney, 109 Nev. at 543 n.4,
853 P.2d at 125 n.4 (alterations in original) (nternal quotations omitted).
Additionally. in determining whether the movant has
demonstrated a prima facie case for modification, district courts need not
"The EDCR has been amended while this case has been pending on
appeal, but the rule changes do not affect this rule. We cite to the rules in
effect while this litigation was taking place in the district court.
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consider facts that are irrelevant to the grounds for modification,!® that are
cumulative,!! or that are impeaching. Rooney, 109 Nev. at 543, 853 P.2d at
125. Nor need courts consider allegations which, even if proven, would only
“permit inferences sufficient to establish grounds for a custody change.” Jd.
Additionally, courts are not required to consider a movant's general, vague,
broad, or conclusory allegations, See, e.g., DCR 13(5) (“Affidavits shall
contain only factual, evidentiary matter, shall conform with the
requirements of NRCP 56(e), and shall avoid mere general conclusions or
argument. Affidavits substantialiy defective in these respects may be
10In demonstrating a substantial change in circumstances, the
movant must allege facts that have occurred “since the last custody
determination.” Ellis, 123 Nev. at 151, 161 P.3d at 243. This prong of the
test for modifying custody “prevents persons dissatistied with custody
decrees [from filing] immediate, repetitive, serial mctions until the right
circumstances or the right judge allows them to achieve a different result,
based on essentially the same facts.” /d. (alteration in original) (quoting
Castle v. Simmons, 120 Nev. 98, 103-04, 86 P.3d 1042, 1046 (2004) (internal
quotations omitted)).
While district courts are barred from considering facts that preexisted
the current custody order in considering whether a substantial change in
circumstances has occurred, see id., courts are not barred from looking at
that evidence to determine whether modification is in the child’s best
interest. See Nance v. Ferraro, 134 Nev. 152, 163, 418 P.3d 679, 688 (Ct.
App. 2018) (“[Prior orders] do not, however, bar district courts from
reviewing the facts and evidence underpinning their prior rulings in
deciding whether the modification of a prior custody order is in the ¢hild’s
best interest.”). This is because “Nevada law is clear: the district court must
consider all the best interest factors in...deciding whether te modify
custody,” and a court’s decision to bar evidence simply because it preexisted
the custody order amounts to an abuse of discretion. Jd. at 161-62, 418 P.3d
at 686-87.
Cumulative evidence has been defined as “tending to prove the same
thing.” Cumulative, Blach’s Law [netionary (11th ed. 2019).
a
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stricken, wholly or in part.”); see also, e.g., Pridgeon, 655 P.2d at 5; Betzer,
749 S.W.2d at 695: Madgett v. Madgett, 360 N.W.2d 411, 412 (Minn. Ct.
App. 1985); Schumacker v. Schumacker, 796 N.W.2d 636, 640 (N.D. 2011);
In re Marriage of Mac Laren, 440 P.3d 1055, 1067 (Wash. Ct. App. 2019).
Finally, the district court need not consider facts alleged or
exhibits filed that are not supported by verified pleadings, declarations, or
affidavits. Rooney, 109 Nev. at 543 & n.4, 853 P.2d at 125 & n.4 (alluding
only-to facts established in affidavits and citing section 410 of the UMDA,
which requires establishing adequate cause via affidavits alone); see also
NRS 15.010 (permitting verification of pleadings via affidavit): NRS 53.045
(permitting an unsworn declaration signed by the declarant under venalty
of perjury in lieu of an affidavit): EDCR 5.102 (“Unless the context indicates
otherwise, ‘affidavit’ includes an affidavit, a sworn declaration, and an
unsworn declaration under penalty of perjury.”); DCR 13(6) (requiring
factual contentions first be presented upon affidavits). For these reasons,
dernonstrating a prima facie case for modification is a “heavy burden on a
petitioner which must be satisfied before a hearing is cunvened.” Roorda v.
Roorda, 611 P.2d 794. 796 (Wash. Ct. “App. 1980) (emphasis added},
overruled on other grounds by In re Parentage of Jannot, 65 P.3d 664, 666
(Wash. 2003).
Here, Lisa alleged facts that, if proven et an evidentiary
hearing, could constitute a substantia: change in circumstances affecting
the welfare of S.H. and establish that it is in 8.H.’s best interest to modify
custody. Specifically, Lisa alleged that Caleb, Valeri (Caleb's current wife),
and Valeri’s sons (all of whom live in the home) have threatened hari to
S.H., and that Valeri struck a child living with S.H. in front of S.H. See
NRS 125C.0035(4)(k) (specifving that a child’s best interest includes a
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determination whether a parent has engaged in an act of domestic violence
against the child or a persun residing with the child); NRS i125C.0035()
(creating a rebuttable presumption that sole or primary physical.custody by
the perpetrator of domestic violence against the child or someone living with
the child is not in the child’s best interest); NRS 125C.0035(1)(b) (defining
domestic violence as committing acts described in NRS 33.018(1)). Lisa also
alleged that Caleb and Valeri use specific derogatory terms to demean S.H.
in front of S.H. and directly to her. See NRS 125C.0035(4)(f)-(h)
(collectively, the custody best interest factors related to the mental health
of the parents; the physical, developmental, and emotional needs of the
child; and the nature of the relationship of the child with each parent).
Lisa also alleged that S.W. has overcrowded teeth that cause
ker pain when eating certain foods and that Caleb will not remedy the
situation or allow Lisa to remedy it for him. See NRS 125C.0035/4)(g), G)
(the parents’ ability to cooperate to meet the needs of the child and parental
neglect). Additionally, Lisa alleged that S.H. is often forced to clean up for
the other children, care entirely for two minor children younger than 5.H.
on Wednesdays for Valeri, and care for Valeri’s nonambulatory son by
bringing him meals, and that Caleb and Valeri are not providing S.H.
proper clothing—leaving her in ripped and dirty clothing.. See NRS
125C.0035(4)(g), (h). Gi). Not oniy dic Lisa make these allegations, but she
provided two declarations and informal offers of proof, summarizing
proposed witness testimony for most of them.
Furthermore, Lisa has alleged that S.H. sleeps in a ronbedroom
on a foam mattress in a house overcrowded with people and animals and
that S.H. wants to live with her, not Caleb. See NRS 125C.0035(4)(a)
(wishes of the child), (g), (h). Lisa has alleged that Caleb bas both deprived
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her of parenting time and substantially interfered with any that did occur.
See NRS 125C.0035(4)(c), (d). (e) (collectively, the custody best interest
factors related to which parent is more likely to allow the child to have
frequent. associations and a continuing relationship with noncustodial
parent: level of conflict between the parents; and the parents’ ability to
couperate to meet the needs of the child): Martin v. Martin, 120 Nev. 342,
346, 90 P.3d 981, 983 (2004) (holding that a custodial parent’s substantial
or vervasive interference with a ‘noncustodial parent’s parenting time
constitutes changed circumstances), abrogated on other grounds by Ellis,
123 Nev. 145, 161 P.3d 239. ‘She has alleged that Caleb and Valeri do not
help S.H. with her homework, do not review it, and do not check that it is
done and that, as a result, S.H. has fallen behind in math. See Ellis, 123
Nev. at 152, 161 P.3d at 244 (holding a four-month slide in academic
performance constituted a substaniial change in circumstances); see also
NRS 125C.0035(4)(e), (g), (h).
However, rather than rely upon the allegations Lisa made in
her pleadings, papers, and declarations, the district court instesd relied
upon Caleb’s allegations and purported sbidencé in determining whether
Lisa met her burden of demonstrating a prima facie case for modification.
Indeed, at the second nonevidentiary hearing, the court noted that it was a
“close call” precisely because Caleb had provided a CPS report investigating
some of Lisa’s claims, S.H.’s unauthenticated medica! and dental records,
see NRS 52.325(2), and Lisa’s email allegedly waiving spring break
parenting time. The court thus acknowledged that, before holding an
evidentiary hearing, it weighed the allegations Lisa provided against the
allegations and offers of proof that Caleb offered. The district court thus
abused its discretion when it weighed the respective allegations and offers
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problem with relying on a nonmovant’s documents to determine a movant
has not demonstrated a prima facie case for modification is that it disposes
of the movant’s case upon conflicting evidence that might not even he
admissible at an evidentiary hearing. Denial determinations under looney
that effectively end a case for a litigant should not be made on conflicting
and potentialJly inadmissible evidence.
13Finally, even with a reliable CPS report and credible testimony, the
CPS report's recommendations may not be applicable because the
conclusion from a child protection investigation has a different purpose than
a motion to modify custody, See, e.g., NRS 432B.180 (detailing the duties of
the Division of Child and Family Services (DC¥S)); NRS 432B.350
(describing when a child may need protection by DCFS); NRS 432B.340
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court abused its discretion in weighing the evidence and making credibility
determinations resulting in a case-ending custody decision based upon
conflicting evidence without holding an evidentiary hearing.
And here, even accepting the CPS report as admissible and
accurate, Lisa made many other specific allegations that establish a prima
facie case for modification. The district court therefore abused its discretion
when it weighed Caleb’s proposed evidence against Lisa’s relevant
allegations and determined'that Lisa had not made a prima facie showing
for modifying physical custody. The district court therefore should have
found adequate cause to hold an evidentiary heaving based on Lisa's
allegations.!4 The district court consequently abused its discretion because
(noting that a child not in imminent danger from abuse or neglect need not
necessarily be placed in protective custody).
14To clarify, once a movant establishes a prima facie case for
modification based upon his or her verified pleadings, declarations, or
affidavits, the district court cannot deny the movant’s motion to modify
without first holding an evidentiary hearing. Rooney, 109 Nev. at 542, 833
P.2d at 124. It generally therefore does not matter if postjudgment
discovery has occurred because courts are only concerned, as discussed
above, with what the movant has alleged in his or her verified pleadings,
declarations, and affidavits. For this reason, postjudgment discovery is
generally not permitted in child custody cases without setting a subsequent
evidentiary hearing because what is discovered should not be considered in
the district court’s Rooney analysis. See supra note 2. But compare NRCP
16.21(b)(2) (recognizing postjudgment discovery may be nermitted for good
cause), with supra discussion in text between notes 9 and 10 (adopting an
exception wherein a district court may rely on evidence the nonmovant
presents that “conclusively establish[es]” the falsity of the movant's
allegations in determining if the movant presented a prima facie case for
modification). Thus, under the ideal situation, the.district court would have
reviewed Lisa’s motion, found that she had demonstrated a prima facie case
for modification, ordered postjudgment discovery regarding Lisa’s
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no reasonable judge could have found that Lisa failed to demonstrate a
prima facie case for modification had that judge accepted the allegations
Lisa provided in her declarations as true.
From the record, it appears that Caleb argued, and the district
court may have believed, that Lisa’s declarations or offers of proof contained
allegations that were either cumulative, impeaching, or inappropriate to
consider in evaluating whether there had been a substantial change of
circumstances. As discussed above, the cowrt would not have needed to
consider any insufficient allegations in determiming whether Lisa
demonstrated a prima facie case for modification. But in the crder denying
Lisa’s motion to modify, the district court did not provide specific findings
or adequately explain why Lisa failed to demonstrate a prima facie case for
modification.
In modification of child custody cases, district courts must make
specific findings and provide adequate explanation for their child custody
determinations. Davis vu. Ewalefo. 131 Nev. 445, 452, 352 P.3d 1189. 1143
(2015). The supreme court requires these findings, and especially the
explanation, for two reasons: (1) te aid appellate review by ensuring the
court made its determination for appropriate reasons. and (2) to help
parents understand why the motion was decided the way that it was
because it may affect future moticns to modify custody.!® See id. at 452, 352
allegations, then set an evidentiary hearing for Lisa to prove those
allegations,
ls} mportantly. when a district court denies a motion to modify custody
under Rooney, which is a threshoid determination, it has the same practical
effect as a denial on the merits: custody is not modified. Davis's purposes
in requiring findings and an adequate explanation are no less served in the
Rooney context, because in either case parents will not understand what
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P.3d at 1143-44. And without these findings and explanation,'® appellate
courts—and parents---are relegated to speculate about how and why the
court ruled as it did, which we will not do. Cf Smee vu. State, 124 Nev. 434,
442, 187 P.3d 152, 158 (2008).
We now hold that the district court must provide an adequate
explanation when it denies a motion to medify custody without holding an
evidentiary hearing given that such a denial has the same practical
implications for a movant as a denial on the merits. See supra note 16: cf.
NRCP 52(a)(3) (“The court is not required to state findings or conclusions
when ruling on a motion under Rule 12 or 56 or... ot. any other motion.
The court should, however, state on the record the reasons for granting or
denying a motion,” (emphasis added)). And when s district court fails to
provide an adequate explanation for its denial, it makes it difficult for this
needs to happen before custody may be modified. Consequentiy, a district
court’s failure to follow Davis may encourage repetitive, insubstantial
motions to modify custody, which is antithetical to Reoney’s stated purpose.
See Rooney, 109 Nev. at 543 n.4, 853 P.2d at 125n.4. Explaining to parents
why their allegations are insufficient to modify custody is especially
important given that many parents who seek to modify custody do so pro
se. Cf. Stephan Landsman, Pro Se Litigation, 8 Ann. Rev. L. & Soc. Sci.
231, 239 (2012) (noting an increase in self-representation in the domestic
relations context and a “clear trend” towards it).
'6We recognize that findings cr an adequate explanatioa in this
Rooney context is different and will be limited to the sufficiency of the
allegations contained in the verified cleadings, affidavits, declarations, and
exhibits filed with the court because no evidence will have been admitted
yet. See. e.g., EDCR 5.205(g) (“Exhibits may be deemed offers of proof but
shall not be considered substantive evidence unless admitted.”).
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court to review the district court’s decision.'7 An explanation that. follows
the framework of Davis is certainly adequate, but the court gave no such
explanation in this case—just a conclusory one that mirrored Rooney's legal
requirements.
Additionally, even though Lisa demonstrated a prima facie case
requiring the court to hold an evidentiary hearing, we strongly reiterate
that the form of that evidentiary hearing—both in this case and generally—
is entirely within the district court’s broad discretion. Arcella, 133 Nev. at
872, 407 P.3d at 346 (“While these circumstances obligated the district court
to conduct an evidentiary hearing, the form of that hearing remains within
the district court’s discretion.”). For example, a district court may dictate
when the hearing takes place, the amount of discovery to take place before
the hearing (if any), the time each party has to offer evidence, and the scope
of the evidentiary hearing. See, e.g., id. (noting that the court had discretion
to interview the child if it found it appropriate under the circumstances):
see also NRCP 16.215 (establishing procedures for child interviews and
testimony). And these determinations will be overturned on appeal only if
the district court clearly abuses its discretion. Prinum v. Lopes, 109 Nev.
502. 504, 853 P.2d 103, 104 (1993).
CONCLUSION
District courts wield substantial discretion in child custody
cases. See NRS 125C.0045(1). This includes the discretion to deny a motion
to modify custody without holding an evidentiary hearing. Rooney, 109 Nev.
17For example, we do not nave on the record before us Lisa's
previously filed motions that may bar under res judicata principles some of
the claims she has presented in her most recent declarations. Compare
supra note 10, with Castle, 120 Nev. at 104-05, 86 P.3d at 1047.
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at 542-43, 853 P.2d at 124-25. To exercise that discretion, however, the
district court must first find that the movant has failed to demonstrate a
prima facie case for modification. See id. And today, we further require
that—subject to the exception announced—district courts must make that
determination by looking solely to the movants proper allegations,
generally presented in the movant’s verified pleadings, declarations, or
affidavits. The district court in this case thus abused its discretion when it
relied upon the nonmovant’s allegations and offers of proof to find Lisa
failed to demonstrate a prima facie case for modification. Because Lisa’s
declarations established a prima facie case for modification, the district
court abused its discretion in denying her motion to modify custody without
holding an evidentiary hearing. We consequently reverse and remand the
district court order with instructions to hold an evidentiary hearing.
We concur:
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