ROMANO v. ROMANO (CHILD CUSTODY) C/W 81439

138 Nev., Advance Opinion I
IN THE SUPREME COURT OF THE STATE OF NEVADA
AARON ROMANO, No. 81259
Appellant,
VS.
TRACY ROMANO,
Respondent.
AARON ROMANO, No. 81439
Appellant,
VS. Fi
TRACY ROMANO,
Respondent. JAN 1 3 2822
A. BRO
CLE
zY
' EF :PUT( CLERX
Consolidated appeals from district court orders denying a
motion to modify child custody and child support and awarding attorney
fees. Eighth Judicial District Court, Family Court Division, Clark County;
Rebecca Burton, Judge.
Affirmed.
The Abrams & Mayo Law Firm and Rena G. Hughes and Jennifer V.
Abrams, Las Vegas,
for Appellant.
Kainen Law Group and Racheal H. Mastel, Edward L. Kainen, and Andrew
L. Kynaston, Las Vegas,
for Respondent.
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BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, CADISH, J.:
In these consolidated appeals, we consider the circumstances
under which a district court may modify the joint physical custody of minor
children and a parenes child-support obligations. As to custody, we hold
that a court may modify a joint or primary physical custody arrangement
only if (1) there has been a substantial change in circumstances affecting
the welfare of the child and (2) the modification serves the best interest of
the child. This two-part inquiry unifies tests previously applied by this
court in determining whether a joint or primary physical custody
arrangement should be modified on a parent's motion. Regarding child
support, we hold that the new child-support guidelines alone do not
constitute a change in circumstances necessary to support a motion to
modify a child-support obligation. Applying these standards to this case,
we conclude the district court did not abuse its discretion when it denied
appellanes motion to modify the parties physical custody designation and
his child-support obligation. Additionally, we conclude that the district
court did not abuse its discretion in awarding respondent attorney fees and
costs. Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
Appellant Aaron Romano and respondent Tracy Romano
divorced in 2019. Before the decree was entered, in March 2019, the parties
agreed to resolve all issues relating to the custody, control, and care of their
seven minor children in a stipulated order. This agreement created a
2
complex timeshare regarding the physical custody of each child. Under the
timeshare, the oldest 3 children are in Aaron's custody approximately 90
percent of the time, while the younger 4 children are in Tracy's custody
approximately 95 percent of the time. The agreement indicates that both
parties will make efforts to have the minor children spend more time with
the other parent. Although the timeshare does not meet the at-least-40-
percent-physical-custody standard for joint physical custody, the parties
agreed to joint physical custody of the children, regardless.
In June 2019, after the parties resolved custody, they stipulated
to a Marital Settlement Agreement (MSA), which provides terms regarding
alimony, income, and child support. Pursuant to the MSA, Aaron owes
Tracy $1,138 per month per child, the presumptive maximum for child
support at the time, for the four youngest children and $569 per month for
one of the older children. The MSA further provides that the prevailing
party in litigation concerning the terms and conditions of the MSA or a
breach of the MSA is entitled to attorney fees and costs.
Roughly eight months later, Aaron filed a "Motion to Confirm
De Facto Physical Custody Arrangement of Children." In it, he requested
that the court modify the custody order to reflect that he had primary
physical custody of the three oldest children, while Tracy had primary
physical custody of the four youngest children. He further requested the
court to modify the child-support obligations because of the actual physical
custody timeshare as well as an increase in Tracy's monthly income from $0
to $6,018.67. Tracy opposed, arguing that their global settlement did not
warrant modification, as it reflected what the parties contemplated and
stipulated to in court, such that there were no changed circumstances. As
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to her income, which consists of alimony and interest on a promissory note
paid by Aaron, Tracy argued that there was no change in circumstances
because her income was part of the parties global settlement agreement,
which Aaron knew of at the time they agreed on child support.
The district court denied Aaron's motion, concluding that there
was no change in circumstances that warranted modifying custody, that
Aaron's motion "seem[ed] to be an attempt to create a non-existent change
of circumstances to be able to apply the new child support guidelines," and
that Tracy's income had not changed. On Tracy's motion, the district court
awarded her attorney fees and costs pursuant to the MSA and NRS
18.010(2)(b), finding that Tracy was the prevailing party and that Aaron
brought his motion without reasonable grounds. Aaron appealed from both
of the district court's orders, and we consolidated his appeals for resolution.
DISCUSSION
The district court did not abuse its discretion when it denied Aaron's motion
to modify custody
Aaron argues that the district court abused its discretion by
denying his motion to modify physical custody because Rivero v. Rivero, 125
Nev. 410, 216 P.3d 213 (2009), does not require a party to show a change in
circumstances before the court will determine the nature of the custody
arrangement under Nevada law and modify the custody order accordingly.
Rivera's framework, however, relies on the premise that two distinct tests
apply for evaluating motions to modify a physical custody arrangement
depending on whether the arrangement is joint or primary. While our
caselaw in this area has been inconsistent, we now clarify that regardless
of whether a movant requests to modify joint custody or primary physical
custody, the test to evaluate such a motion is one and the same—the movant
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must show that "(1) there has been a substantial change in circumstances
affecting the welfare of the child, and (2) the child's best interest is served
by the modification." Ellis v. Carucci, 123 Nev. 145, 150, 161 P.3d 239, 242
(2007).
We first suggested that the test to modify joint physical custody
may be different from the test to modify primary physical custody in Truax
v. Truax, 110 Nev. 437, 874 P.2d 10 (1994). There, we stated that the test
from Murphy v. Murphyl—the controlling custody-modification test at that
time—applied only to primary physical custody arrangements because the
Legislature had enacted NRS 125.510(2) after we decided Murphy. Truax,
110 Nev. at 438-39, 874 P.2d at 11. Because NRS 125.510(2) then provided
that a court may modify a joint physical custody arrangement when the
movant shows it is in the child's best interest to do so, we concluded that a
party need not show a change in circumstances to modify a joint physical
custody arrangement. Id. (citing 1981 Nev. Stat., ch. 148, at 283-84); see
also Hopper v. Hopper, 113 Nev. 1138, 1142 n.2, 946 P.2d 171, 174 n.2 (1997)
(recognizing that Truax "explained that the Murphy change of
circumstances criterion would not apply to the modification of joint physical
custody ordere), overruled in part on other grounds by Castle v. Simmons,
120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004).
Even when Truax was decided, however, the child's best
interest was the sole factor for a court to consider in determining physical
custody regardless of whether a party sought joint or primary custody. NRS
'Murphy v. Murphy, 84 Nev. 710, 711, 447 P.2d 664, 665 (1968),
overruled by Ellis, 123 Nev. at 150, 161 P.3d at 242.
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125.480, repealed by 2015 Nev. Stat., ch. 445, § 19, at 2591, and reenacted
in substance in NRS 125C.0035 by 2015 Nev. Stat., ch. 445, § 8, at 2583-85.
And as we subsequently explained, Truax's statement that a joint physical
custody arrangement may be modified if the movant shows that it is in the
child's best interest "did not mean that we abandoned the doctrine of res
adjudicata in child custody matters and that persons dissatisfied with
custody decrees can file immediate, repetitive, serial motions until the right
circumstances or the right judge allows them to achieve a different result,
based on essentially the same facts." Mosley v. Figliuzzi, 113 Nev. 51, 58,
930 P.2d 1110, 1114 (1997) (emphasis omitted), overruled in part by Castle,
120 Nev. at 105 n.20, 86 P.3d at 1047 n.20. In that regard, we observed that
"[i]t is rather obvious that when a judge makes a decision on child custody,
such a decision should not be subject to modification if substantially the
same set of circumstances that were present at the time the decision was
made remains in effect." Id. at 58, 930 P.2d at 1115.
Consistent with that observation, we later explained in the
context of reviewing an order granting a motion to modify primary physical
custody that requiring the movant to show a substantial change in
circumstances affecting the welfare of the child "serves the important
purpose of guaranteeing stability unless circumstances have changed to
such an extent that a modification is appropriate." Ellis, 123 Nev. at 151,
161 P.3d at 243. Because custodial stability is important for children
regardless of the custodial designation, and res judicata principles are
equally applicable in all child custody matters, we perceive no basis,
statutory or otherwise, to maintain separate tests for evaluating a motion
to rnodify a child-custody arrangement. Accordingly, consistent with Ellis,
6
we hold that a court may modify a joint or primary physical custody
arrangement only when "(1) there has been a substantial change in
circumstances affecting the welfare of the child, and (2) the child's best
interest is served by the modification."2 Id. at 150, 161 P.3d at 242.
Applying that analysis here, we discern no abuse of discretion
in the district court's conclusion that there was no change in circumstances
that warranted modifying the child-custody arrangement, as Aaron did not
allege, much less show, a substantial change in circumstances affecting the
welfare of the children in the short time since the arrangement was agreed
upon. See Rivero, 125 Nev. at 428, 216 P.3d at 226 (reviewing a district
court's custody determinations for an abuse of discretion). As the district
court stated after reviewing the timeshare schedule and the parties'
2This two-part analysis is consistent with other jurisdictions'
approaches regarding motions to modify a joint physical custody
arrangement. See, e.g., E.F.B. v. L.S.T., 157 So. 3d 917, 921 (Ala. Civ. App.
2014) ("Our supreme court has held that joint-physical-custody
arrangements may be modified based on a material change of circumstances
showing that modification would serve the best interests of the children.");
Mahan v. McRae, 522 S.E.2d 772, 773 (Ga. Ct. App. 1999) (holding that
"[o]nce a permanent child custody award has been entered, the test for use
by the trial court in change of custody suits is whether there has been a
change of conditions affecting the welfare of the child"); Mimms v. Brown,
856 So. 2d 36, 43 (La. Ct. App. 2003) (applying the changed circumstances
and best interest of the child test to a motion to modify a stipulated joint
custody order); .see also Family Law and Practice § 32.10[11 (Arnold H.
Rutkin ed. 2020) ("The legal principles governing modification of child
custody are well settled. First, the party seeking modification must show a
material change in circumstances, occurring after the entry of the previous
custody order and affecting the best interests of the child. Next, the party
seeking modification must prove that changing the child's custody is in the
child's best interests.").
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evidence and arguments, "nothing was different from what it was when [the
parties] put that [physical custody] schedule together." The record supports
that conc1usion.3 See id. at 429, 216 P.3d at 226 (observing that a district
court abuses its discretion in making a custody determination when it fails
to make findings of fact supported by substantial evidence).
However, Aaron argues that Rivero requires the district court
to determine whether the actual custody arrangement qualified as joint
custody as provided in the stipulated custody order before it may reject a
motion to modify based on lack of changed circumstances.4 This argument,
3As stated in Rivero, "parties are free to agree to child custody
arrangements and those agreements are enforceable if they are not
unconscionable, illegal, or in violation of public policy." 125 Nev. at 428-29,
216 P.3d at 226-27. Further, the parties may designate their agreement as
either joint or primary physical custody even if the actual timeshare would
not be considered joint or physical custody under Nevada law, and that
designation will control unless the custody arrangement is modified. See
id. However, a party cannot agree to a custody timeshare and designation
and then move to modify the designation without also seeking to modify the
timeshare itself in accordance with the test we confirm today. Cf. Citicorp
Servs., Inc. v. Lee, 99 Nev. 511, 513, 665 P.2d 265, 266 (1983) (explaining
that parties are bound by their stipulation unless they can show it "was
entered into through mistake, fraud, collusion, accident or some ground of
like nature).
4A1though Rivero indicated that two separate tests may apply
depending on what type of physical custody arrangement exists, 125 Nev.
at 422 n.4, 216 P.3d at 222 n.4, the custody issue in Rivero turned on the
district court's abuse of discretion in (1) summarily determining that the
parties had a joint physical custody arrangement without making any
supporting findings of fact, and (2) modifying custody without supported
factual findings that doing so was in the child's best interest, id. at 430, 216
P.3d at 227. Thus, the test that applies in determining a motion to modify
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however, is premised on the continued existence of two separate tests for
evaluating a motion to modify physical custody and, therefore, is foreclosed
by our holding that the same two-part test applies to motions to modify any
physical custody arrangement. Thus, we overrule Rivero to the extent it
indicates that a district court must first determine what type of physical
custody arrangement exists before considering whether to modify that
arrangement.% Accordingly, the district court did not abuse its discretion
when it denied Aaron's motion based on his failure to demonstrate a
substantial change in circumstances without first determining whether the
parties were exercising a joint or primary physical custody arrangement.6
a physical custody arrangement was not the basis for the disposition
reversing and remanding.
%Nothing in this opinion overrules the dispositive aspects of Rivera,
which define joint and primary physical custody and require the district
court to make express findings of fact as to whether the moving party met
the criteria for modifying physical custody. 125 Nev. at 420-28, 216 P.3d at
221-26.
60ur holding does not change the rule announced in Nance v. Ferraro
that the doctrine of res judicata does not "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 child's best interest." 134
Nev. 152, 163, 418 P.3d 679, 688 (Ct. App. 2018); see also Castle, 120 Nev.
at 105, 86 P.3d at 1047 ("Although the doctrine of res judicata, as applied
through the changed circumstances doctrine, promotes finality and
therefore stability in child custody cases, it should not be used to preclude
parties from introducing evidence of dornestic violence that was unknown
to a party or to the court when the prior custody determination was made.").
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II 1.1-17A
The district court did not abuse its discretion when it denied Aaron's motion
to modify his child-support obligation
Aaron argues that the district court abused its discretion in
denying his motion to modify his child-support obligation.7 We disagree.
We review decisions regarding child support for an abuse of
discretion. Rivero, 125 Nev. at 438, 216 P.3d at 232. A district court may
modify a child-support order if there has been a change in circumstances
and the modification is in the child's best interest. Id. at 431, 216 P.3d at
228.
Although Aaron first argues that Tracy's income increased from
$0 to $6,018.67 following the MSA, such that the district court should have
reviewed the child-support order based on changed circumstances, Tracy's
income and Aaron's child-support obligation were both resolved in the MSA.
Thus, Tracy's income at the time the parties resolved child support was
$6,018.67, and her income has not changed since then. Accordingly, the
district court did not abuse its discretion when it concluded Tracy's income
did not constitute a change in circumstances to support modifying Aaron's
support obligation.8
71nlight of our holding that the district court properly concluded there
was no change of circumstances relating to the physical custody
arrangement, we need not address Aaron's argument that a change in the
custody arrangement constitutes a change of circumstances that warrants
revisiting his child-support obligations.
8Tothe extent Aaron argues that the district court was required to
review his child-support obligation because Tracy is an obligor and her
income increased more than 20 percent, we disagree. As discussed above,
Tracy's income did not increase at all after his support obligation was
established, much less by 20 percent.
10
Aaron next argues that NAC Chapter 425, which became
effective on February 1, 2020, and promulgated a new formula to determine
a parent's child-support obligations, constitutes a change in circumstances
that requires the district court to review the parties child-support
obligations. He further claims that NAC 425.170(3), which provides that
the enactment of the new guidelines alone is not a change in circumstances
sufficient to modify an existing child-support order, conflicts with our
holdings in Rivero, 125 Nev. at 432, 216 P.3d at 228, and Burton v. Burton,
99 Nev. 698, 669 P.2d 703 (1983). According to Aaron, those cases show
that a change in the law made after entry of a support obligation amounts
to a changed circumstance, warranting modification of that obligation. We
disagree.
NRS 425.620 directs the Administrator of the Division of
Welfare and Support Services (the agency) to establish the guidelines for
child support and authorizes the agency to promulgate regulations such as
NAC 425.170(3). NRS 425.450(1) also commands the agency to establish a
formula for the adjustment of child support and "[Me times at which such
an adjustment is appropriate." Because the Legislature specifically
directed the agency "to ensure the maintenance of effective, efficient and
appropriate guidelines that best serve the interests of the children of this
State," see NRS 425.620(3), and expressly delegated the ability to determine
when modification of child support fulfills those legislative goals, NAC
425.170(3) did not exceed the scope of the agency's power. Thus, while
Rivero and Burton provide that a district court typically may modify a
support order when there is a legal change in circumstances, here the duly
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N4TA
promulgated regulation carves out a minor exception to that general rule.9
"A properly adopted substantive rule establishes a standard of conduct
which has the force of law." State ex rel. Nev. Tax Comm'n v. Saveway Super
Serv. Stations, Inc., 99 Nev. 626, 630, 668 P.2d 291, 294 (1983). While we
"will not hesitate to declare a regulation invalid when the regulation
violates the constitution, conflicts with existing statutory provisions or
exceeds the statutory authority of the agency or is otherwise arbitrary and
capricious," Felton v. Douglas County, 134 Nev. 34, 38, 410 P.3d 991, 995
(2018) (quoting Meridian Gold Co. v. State ex rel. Dep't of Taxation, 119 Nev.
630, 635, 81 P.3d 516, 519 (2003)), none of those circumstances apply here.
Accordingly, the district court did not abuse its discretion when it concluded
that there was no change in circumstances warranting modification of
Aaron's child-support obligations.1°
9We note that neither Rivero nor Burton, which both predate NAC
425.170(3), involved a similar regulation stating that the change in the
statutory scheme did not constitute a change in circumstances. See Rivero,
125 Nev. at 432, 216 P.3d at 228-29 (explaining the proper standard for
when a court may modify a child-support obligation); Burton, 99 Nev. at
699-700, 669 P.2d at 704 (noting that the Legislature passed a law
specifically allowing forrner military spouses to "request a modification in
the district court of the adjudication of property rights in the decree of
divorce").
10Aaron further argues that NAC 425.170(3) violates the Equal
Protection Clause. However, Aaron waived this argument by failing to raise
it before the district court. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49,
52, 623 P.2d 981, 983 (1981) (holding that a party waives an argument by
failing to raise it in the district court). Moreover, while "issues of a
constitutional nature may be addressed when raised for the first time on
appeal," Levingston v. Washoe County, 112 Nev. 479, 482, 916 P.2d 163, 166
(1996), we decline to do so here, as Aaron failed to provide any authority
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The district court did not abuse its discretion by awarding Tracy attorney
fees and costs
As noted, the district court awarded attorney fees and costs to
Tracy under the MSA and NRS 18.010(2)(b). Aaron does not challenge the
reasonableness of the district court's award or the applicability of NRS
18.010 and the MSA. Because we conclude that the district court properly
denied Aaron's motion, making Tracy the prevailing party, the district court
likewise did not abuse its discretion by awarding Tracy attorney fees and
costs. See Kantor v. Kantor, 116 Nev. 886, 896, 8 P.3d 825, 831 (2000)
(applying an abuse of discretion standard of review to an order awarding
attorney fees and costs); see also NRS 18.010(1) (providing that a district
_ court may award attorney fees as provided for in an agreement between the
parties or as authorized by a statute).
CONCLUSION
A district court may modify a joint physical custody
arrangement, like a primary physical custody arrangement, only when
, (1) there has been a substantial change in circumstances affecting the
welfare of the child and (2) the rnodification would serve the child's best
interest. On the record before us, the district court did not abuse its
discretion when it concluded that no substantial change in circumstances
affecting the welfare of the children occurred. Additionally, the district
supporting his equal protection challenge, see Edwards v. Emperor's Garden
Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (explaining
that this court will not consider claims that are unsupported by cogent
argument and relevant authority).
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court. did not abuse its discretion when it denied Aaron's motion to modify
his child-support obligation. Finally, the district court properly awarded
Tracy attorney fees and costs. Accordingly. we order the judgments of the
district court affirmed.
We concur:
7e.J.
Parraguirre
, J.
Hardesty
fea-4iClug J.
Stiglich
Silver
Pickering
Piek.
J.
Herndon
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