Bluestein v. Bluestein

131 Nev., Advance Opinion 14
IN THE SUPREME COURT OF THE STATE OF NEVADA
MICHAEL M. BLUESTEIN, No. 62308
Appellant,
vs.
ELLEN G. BLUESTEIN, N/K/A ELLEN
FILED
GREEN, N/K/A ELLEN GREEN- MAR 2 6 2015
MILLER,
Respondent.
Appeal from a post-divorce decree order regarding child
custody. Eighth Judicial District Court, Family Court Division, Clark
County; Cheryl B. Moss, Judge.
Reversed and remanded.
Urban Law Firm and Seth T. Floyd, Las Vegas,
for Appellant.
McFarling Law Group and Emily M. McFarling, Las Vegas,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, DOUGLAS, J.:
In this child custody case, the parties entered into an
agreement for joint custody at the time of their divorce, and seven years
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later the mother requested that the district court modify the child custody
designation to provide her with primary physical custody, so as to modify
child support, in accordance with Rivero v. Rivero, 125 Nev. 410, 216 P.3d
213 (2009). River° established a workable formula to assist courts in
determining when a joint physical custody arrangement exists by
providing that if each parent had physical custody of the child at least 40
percent of the time, they shared joint physical custody. Here, the mother
requested that the district court modify the joint custody designation to
provide her with primary physical custody because the father did not have
the child at least 40 percent of the time under the parties' custodial
agreement. The district court granted the mother's request based on the
amount of time the father had the child each week but failed to consider
whether the modification was in the child's best interest.
We hold that a district court has authority to review and
modify a custodial agreement once a modification request is made by
either party. We further hold that the child's best interest must be the
primary consideration for modifying custody and Rivero's 40-percent
guideline shall serve as a tool in determining what custody arrangement is
in the child's best interest. Because the district court did not consider the
child's best interest when modifying custody, we reverse and remand for
further proceedings.
FACTS AND PROCEDURAL HISTORY
Ellen and Michael Bluestein were married for 13 years and
had one child together. In 2004, they entered a stipulated divorce decree,
which provided that Michael would have the child from 5 p.m. on
Thursday to 9:30 a.m. on Sunday, Ellen would have the child the rest of
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the week, and the parties would alternate custody on holidays. The decree
did not identify whether this arrangement was joint or primary physical
custody, but one month after the divorce decree was entered, the parties
filed a parenting agreement that was adopted by the court and provided
that they shared joint legal and physical custody of the child. As for child
support, it was not addressed in either the divorce decree or the parenting
agreement, and the parties indicated that neither party was obligated to
pay support.
In 2011, Michael began receiving public assistance and the
Nevada Department of Health and Human Services, through a proceeding
separate from the divorce matter, sought reimbursement from Ellen for a
portion of the state aid received by Michael as her child support
obligation.' A hearing master recommended that Ellen reimburse the
state $82 each month for child support. Ellen objected to the master's
recommendation and filed the underlying motion in the divorce matter
requesting that the district court designate her as the child's primary
physical custodian in accordance with Rivero, 125 Nev. 410, 216 P.3d 213,
which was decided after the court adopted the parties' parenting
1 The physical custody arrangement governs the child support award.
When parties share joint physical custody of a child, the higher-income
parent is obligated to pay the lower-income parent the difference between
the parents' statutorily calculated child support amounts. River°, 125
Nev. at 437, 216 P.3d at 232; Wright v. Osburn, 114 Nev. 1367, 1368-69,
970 P.2d 1071, 1072 (1998). When one parent has primary physical
custody, the noncustodial parent must pay child support based on the
statutory formulas. See NRS 125B.070; NRS 125B.080; Rivero, 125 Nev.
at 436, 216 P.3d at 231.
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agreement. Ellen argued that Michael only had the child 38 percent of the
time under the agreed custodial arrangement.
The district court held a hearing on Ellen's motion and
considered, among other evidence, the child's statement that for as long as
the child could remember, Michael's custodial time lasted from 5 p.m. on
Thursdays until 9:30 a.m. on Sundays. Based on that evidence and the
timeshare set forth in the parties' agreement, the district court entered an
order concluding that Ellen had primary physical custody of the child
because Michael had the child only 38.393 percent of the time. The court
further stated that even if it were to assume that Michael picked the child
up from school on Thursdays, thereby adding two extra hours to his
weekly timeshare, his resulting total timeshare would only be 39.583
percent.
Upon Michael's motion for reconsideration, the district court
held an evidentiary hearing. Because Thursday was the only custodial
day in dispute at that point, the court heard evidence regarding the time
that each party spent with the child and their responsibilities regarding
the child on Thursdays. After the hearing, the district court entered an
order providing that "only one parent should be assigned as the custodial
parent on Thursdays... land] the mother was the primary parent who
provided supervision for the child and made decisions regarding the child
for the majority of the time on Thursdays." Thus, the court designated
Ellen as the child's primary physical custodian. The court's order did not
state whether this modification was in the child's best interest. Instead,
the court rested the decision on its factual determination that Ellen had
the child 260 days and Michael had the child 105 days in 2011, and
therefore, Ellen had primary physical custody. The court remanded the
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matter to the child support master for further determination as to child
support. Michael appeals and challenges the designation of Ellen as the
child's primary physical custodian.
DISCUSSION
Modifying custody agreements
On appeal, we must decide whether the district court properly
modified an agreed-upon custodial arrangement in accordance with
River°, 125 Nev. 410, 216 P.3d 213; NRS 125.480(1); and NRS 125.510(2).
As a threshold matter, we must determine whether the district court
appropriately considered Ellen's motion when she did not request a
change in the parties' timeshare arrangement, and instead, only requested
a change in the custody designation. Michael argues that because Ellen
did not request a change in the actual timeshare, the district court lacked
authority to modify custody and should have enforced the agreement as
written.
Public policy encourages parents to enter into private custody
agreements for co-parenting. See St. Mary v. Damon, 129 Nev.
309 P.3d 1027, 1035-36 (2013); Rennels v. Rennels, 127 Nev. „ 257
P.3d 396, 399 (2011). As such, parties in family law matters are free to
contract regarding child custody, and such agreements are generally
enforceable. Rivero, 125 Nev. at 429, 216 P.3d at 226-27 (acknowledging
that courts will generally enforce parenting agreements as long as "they
are not unconscionable, illegal, or in violation of public policy"). The terms
upon which the parties agree will control until one or both of the parties
move the court to modify the custody agreement. Id. at 429, 216 P.3d at
226. "[O]nce parties move the court to modify an existing child custody
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agreement, the court must use the terms and definitions provided under
Nevada law, and the parties' definitions no longer control." Id. at 429, 216
P.3d at 227.
In this case, the parties' agreement to share joint physical
custody controlled until Ellen filed her motion requesting that the district
court modify the custody agreement and designate her as the primary
physical custodian. While Ellen did not request a modification of the
actual timeshare arrangement, by requesting a modification to the
physical custody designation, she was asking the district court to review
the parties' child custody agreement and apply current Nevada law.
Therefore, we conclude that once Ellen filed her motion, the district court
had authority to review the parties' timeshare arrangement, determine
whether the parties shared joint physical custody under Nevada law, and
modify the agreement accordingly. See Rennels, 127 Nev. at , 257 P.3d
at 399 (explaining that this court reviews purely legal matters de novo).
Child's best interest is paramount when modifying custody
Once the issue of custody is brought before the court, the
standards under Nevada law for modifying custody control. When
modifying a joint custody agreement, the court must consider whether
such modification is in the child's best interest. NRS 125.510(2). Instead
of considering the child's best interest in interpreting and modifying the
parties' custodial arrangement here, the district court applied Rivero's 40-
percent guideline to determine if Michael had the child at least 40 percent
of the time, and therefore, shared joint physical custody of the child with
Ellen without considering the child's best interest.
In River°, the parties had agreed to joint physical custody
during their divorce but had created a timeshare arrangement where the
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mother had the child five days each week. 125 Nev. at 418, 216 P.3d at
219. A year after the divorce, the mother filed a motion requesting that
the court recognize that she had de facto primary physical custody or, in
the alternative, modify custody. Id. The father filed a countermotion
requesting a modification to the timeshare arrangement to reflect the
parties' agreement to share joint physical custody. Id. The district court
concluded that the parties had intended a joint physical custody
arrangement and thus ordered a modification to give the parties an equal
timeshare. Id. at 419, 216 P.3d at 220.
On appeal, in recognizing that the Nevada Legislature had not
explicitly defined joint custody, this court set forth parameters for the
purpose of clarifying which timeshare arrangements qualified as joint
physical custody. Id. at 423, 216 P.3d at 222-23. This court began by
recognizing that "[fin determining custody of a minor child . . . the sole
consideration of the court is the best interest of the child." Id. at 423, 216
P.3d at 223 (alteration in original) (quoting NRS 125.480(1)). Further, it
is in the child's best interest to "have frequent associations and a
continuing relationship with both parents. . . and It] o encourage such
parents to share the rights and responsibilities of child rearing." Id.
(alterations in original) (quoting NRS 125.460). As such, there is a
presumption that joint physical custody is in the best interest of the child
if the parties agree. Id.; NRS 125.490(1). While a joint physical custody
arrangement presumes a 50/50 timeshare, this court acknowledged that
"there must be some flexibility in the timeshare requirement." Rivero, 125
Nev. at 424-25, 216 P.3d at 223-24.
River° provided a guideline to assist courts in determining
when a timeshare arrangement qualifies as joint physical custody. Id. at
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426, 216 P.3d at 224 (explaining that "we adopt this guideline to provide
needed clarity for the district courts" (emphasis added)). This court held
that if each parent had physical custody of the child at least 40 percent of
the time, equal to at least 146 days over one calendar year, the parents
shared joint physical custody. Id. at 427, 216 P.3d at 225. Regardless of
this guideline, we reiterated that in custody matters, the child's best
interest is paramount. Id. (providing that "absent evidence that joint
physical custody is not in the best interest of the child, if each parent has
physical custody of the child at least 40 percent of the time, then the
arrangement is one of joint physical custody").
In this case, the district court strictly applied Rivero's 40-
percent guideline as the sole factor in deciding Ellen's motion to modify
the parties' custody agreement. Absent from the court's order was any
findings or evaluation of whether the modification is in the child's best
interest. See NRS 125.510(2) (prohibiting a modification of a custodial
arrangement unless the modification is in the child's best interest).
Instead, the court focused on the exact time each parent spent with the
child to arrive at the conclusion that Michael had physical custody just a
fraction short of 40 percent, and thus, Ellen was the child's primary
physical custodian.
We take this opportunity to clarify that our decision in Rivero
was intended to provide consistency in child custody determinations, but it
was never meant to abrogate the court's focus on the child's best interest.
Thus, Rivero's 40-percent guideline should not be so rigidly applied that it
would preclude joint physical custody when the court has determined in
the exercise of its broad discretion that such a custodial designation is in
the child's best interest. See Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d
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239, 241 (2007) (providing that the district court has broad discretionary
powers when resolving issues of child custody). Considering the child's
best interest is especially important in a case such as this where the
district court has determined that one parent has the child almost 40
percent of the time and the timeshare allows the child frequent
associations with both parents. See NRS 125.460(1) (providing that
Nevada's policy is to "ensure that minor children have frequent
associations and a continuing relationship with both parents after the
parents. . . have dissolved their marriage"). Further, when a party is
seeking a modification to the custodial designation solely to receive a
decrease in his or her child support obligation, it is vital that the district
court consider whether such modification is in the child's best interest.
See, e.g., River°, 125 Nev. at 431, 216 P.3d at 228 (explaining that the
district court can modify a child support order if there has been a change
in circumstances and such modification is in the best interest of the child);
see also NRS 125B.030 (providing that the parent with physical custody
may recover child support from the noncustodial parent).
Here, the district court abused its discretion by failing to set
forth specific findings that modifying the parties' custodial agreement to
designate Ellen as primary physical custodian was in the best interest of
the child. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543
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(1996) (this court reviews a district court's decision concerning custody for
an abuse of discretion). On that basis, we reverse the district court's order
and remand for further proceedings consistent with this opinion
, J.
Douglas
We concur:
, C.J.
Hardesty
Parragui rre
J.
Saitta,
(91 de
Pickering
J.
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