Stanton v. Stanton (Child Custody)

IN THE SUPREME COURT OF THE STATE OF NEVADA
DENNIS VINCENT STANTON, No. 80910
Appellant/Cross-Respondent,
vs.
TWYLA MARIE STANTON,
FILED
Respondent/Cross-Appellant.
ORDER AFFIRMING IN PART AND
REVERSING IN PART
This is an appeal and cross-appeal from a district court order
setting aside a divorce decree. Fifth Judicial District Court, Nye County;
Robert W. Lane, Judge.
Appellant filed a complaint for divorce in the Eighth Judicial
District Court, but dismissed it after respondent was appointed legal
counsel when the court concluded she had a diminished capacity. A month
later, the parties filed another divorce complaint in the Eighth Judicial
District Court, but dismissed the action after their peremptory challenge
was denied and the matter remained assigned to the same District Court
Judge who had appointed respondent legal counsel in the prior proceedings.
Shortly thereafter, the parties filed yet another divorce complaint in the
Fifth Judicial District Court. After the divorce decree in that action was
entered, respondent relocated to Arkansas where her parents obtained a
guardianship over her. Thereafter, the parents moved to set aside the
divorce decree. The parties then reconciled and remarried. At the hearing
on the motion, appellant's counsel agreed to set aside the divorce decree as
a moot issue. The district court granted the motion to set aside the divorce
decree and ordered that the joint petition for divorce was dismissed with
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prejudice. The court further entered an order awarding respondent's
temporary guardians attorney fees as sanctions against appellant for
committing a fraud upon the court by failing to inform the district court
about the Eighth Judicial District Court proceedings. Both parties
appealed.
Because appellant agreed to set aside the divorce decree at the
hearing, he has waived any challenge he may now have to the district
court's decision to set it aside. Old Aztec Mine, Inc. v. Brown, 97 Nev, 49,
52, 623 P.2d 981, 983 (1981) (A point not urged in the trial court, unless it
goes to the jurisdiction of that court, is deemed to have been waived and will
not be considered on appeal."). Respondent has also waived any challenge
to the district court's order to set aside the divorce decree because her
guardians sought it on her behalf and were successful in their motion, see
NRAP 3A(a) (explaining that only aggrieved parties may appeal a
judgment), and even if she disagreed with her guardians or they lacked
standing to file the motion on her behalf, she had notice of the proceedings
and even filed her own a ffidavit in the matter but did not seek to intervene
or oppose the motion.
Regardless of the parties waivers, the district court did not
abuse its discretion in granting the motion as the court held a hearing on
the motion and the evidence in the record supports a finding of clear and
convincing evidence of a fraud upon the court. NRCP 60(d)(3) (permitting
a district court to "set aside a judgment for fraud upon the court"); NC-DSH,
Inc. v. Garner, 125 Nev. 647, 658, 218 P.3d 853, 861 (2009) (explaining that
such motions are "addressed to the sound discretion of the trial coure'). This
court notes as well that neither appellant nor respondent sought an
evidentiary hearing nor made any request to call witnesses or present
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evidence outside of what was provided to the court in the pleadings.
Therefore, we affirm the district court order in this regard.
Nevertheless, we conclude the district court abused its
discretion in sanctioning appellant. See Watson Rounds v. Eighth Judicial
Dist. Court, 131 Nev. 783, 787, 358 P.3d 228, 231 (2015) ("This court reviews
sanctions awarding attorney fees for an abuse of discretion."). NRCP
11(c)(2) permits a party to seek sanctions against an opposing party for
violations of NRCP 11(b), but requires such request to be made in a separate
motion and served on the opposing party before being filed with the court,
providing the opposing party with 21 days to cure the violation. The request
for sanctions against appellant was not made in a separate motion, it was
not served on him before it was filed with the district court, and he was not
provided with an opportunity to cure the violation. Therefore, because the
proper procedure for sanctioning a party was not followed, the district court
abused its discretion in sanctioning appellant; and, we reverse this portion
of the order. Accordingly, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART.
, J.
Cadish
A J. j.
Pickering Herndon
'In light of this order, we need not reach the parties additional
arguments.
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cc: Hon. Robert W. Lane, District Judge
Holley Driggs/Las Vegas
Law Office of Christopher P. Burke
Nye County Clerk
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