Major v. State

130 Nev., Advance Opinion 7 0
IN THE SUPREME COURT OF THE STATE OF NEVADA
LARRY EDWARD MAJOR, No. 62819
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. AUG 28 201ii
TRACE K I iNCEMAN
CLE S REMES.QyR
11% L-aK
BY H - F DE
Appeal from a judgment of conviction, pursuant' to a guilty
plea, of child abuse. Second Judicial District Court, Washoe County;
Connie J. Steinheimer, Judge.
Affirmed.
Jeremy T. Bosler, Public Defender, and John Reese Petty, Chief Deputy
Public Defender, Washoe County,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Richard A.
Gammick, District Attorney, and Jennifer P. Noble, Deputy District
Attorney, Washoe County,
for Respondent.
BEFORE PICKERING, PARRAGUIRRE and SAITTA, JJ.
OPINION
By the Court, PARRAGUIRRE, J.:
In this appeal, we consider whether a district court has
jurisdiction to impose restitution to the State for the cost of child care in a
child abuse case where a family court has already imposed an obligation
on the defendant for the costs of supporting the child. We conclude that
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the district court has jurisdiction to impose such restitution but that the
district court must offset the restitution amount by the amount of the
support obligation imposed by the family court.
FACTS
The State placed appellant Larry Major's daughter in the
custody of Washoe County Social Services (Social Services) following his
2012 arrest for child abuse. A family court hearing master ordered Major
to pay child support in the amount of $100 per month directly to Social
Services. A family court district judge affirmed that order. The child was
in the care of Social Services for approximately seven months
Major entered a guilty plea to one felony count of child abuse.
Social Services sought restitution in the amount of $20,362.07. Ida Peeks,
a fiscal compliance officer for Social Services, testified that Social Services
based this amount on the amount it charges other agencies for the cost of
care provided to children placed in Kids Kottage, where Social Services
housed Major's daughter. Social Services bases this rate on the costs of
running Kids Kottage, including overhead and salaries. Peeks also
testified that Social Services may receive reimbursement for the cost of
care from the federal government for children who meet certain eligibility
requirements. Peeks did not know whether Major's daughter met these
requirements or if Social Services received any reimbursement for her
care.
Major objected to the amount sought by Social Services on the
basis that the family court had already entered a cost-of-care order.
Following oral argument on the issue, the district court concluded that the
family court's order, which was based on Major's ability to pay, did not
affect the jurisdiction of the district court as to its criminal restitution
order. Accordingly, the district court ordered Major to pay restitution to
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Social Services in the amount of $19,662.07. This amount reflected an
offset of $700 for the amount Major incurred from the support obligation
imposed by the family court. Major now brings this appeal.
DISCUSSION
On appeal, Major argues that: (1) the district court lacked
jurisdiction to order him to pay restitution for the total cost of his
daughter's care because the family court previously ordered him to pay
$100 per month for the cost of care; and (2) if the district court had
jurisdiction, there was insufficient evidence to support the amount of the
restitution award.
The district court had jurisdiction to order Major to pay restitution
Major argues that the district court lacked jurisdiction to
order him to pay $19,662.07 in restitution to Social Services for the cost of
his daughter's care because the family court had already ordered him to
pay child support to Social Services in the amount of $100 per month.
This is an issue of first impression in Nevada.
According to Major, the district court was improperly
modifying or reviewing the family court's support order when it imposed
restitution. We disagree with that characterization. Family courts have
original, exclusive jurisdiction over matters affecting the familial unit,
including child support. NRS 3.223(1); Landreth v. Malik, 127 Nev. ,
, 251 P.3d 163, 169 (2011). We have held that family court judges "are
district court judges with authority to preside over matters outside the
family court division's jurisdiction." Landreth, 127 Nev. at 251 P.3d
at 164.
Although district courts lack jurisdiction to review or modify
actions of other district courts, Rohlfing v. Second Judicial Dist. Court,
106 Nev. 902, 906, 803 P.2d 659, 662 (1990), we conclude that the district
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court's order imposing restitution did not constitute a review or
modification of the family court's support obligation.
In this case, the family court lacked the power to grant
restitution to compensate for the costs of child care imposed on the State
by Major's criminal acts, as the power to grant restitution to crime victims
is statutory, not inherent to a district court. Martinez v. State, 115 Nev. 9,
10, 974 P.2d 133, 134 (1999) (quoting State v. Davison, 809 P.2d 1374,
1375 (Wash. 1991)). NRS 176.033(1)(c) provides that a sentencing court
may award restitution to the victims of a crime upon a criminal conviction.
Thus, although a family court judge has the same authority as a district
court judge, NRS 176.033(1)(c) limits the power of a district court judge to
award restitution to victims of crimes to the sentencing phase of a
criminal proceeding.
Statutes also circumscribe a family court's authority to award
child support. NRS 125B.070 and NRS 125B.080 provide that the amount
of a parent's support obligation is calculated based on the gross monthly
income of the parent or a minimum payment of $100. This amount is
presumed to be sufficient to meet the basic needs of the child. NRS
125B.080(5). The purpose of child support is to prevent the child from
experiencing the effects of poverty and becoming a charge of the State,
Rodriguez v. Eighth Judicial Dist. Court, 120 Nev. 798, 812, 102 P.3d 41,
50 (2004), and there is no statutory authority for increasing the amount
where the parent's support obligation arose from a criminal act.
The purpose of restitution in the context of a criminal case,
however, is to compensate a victim for costs arising from a defendant's
criminal act. Martinez v. State, 120 Nev. 200, 202-03, 88 P.3d 825, 827
(2004). Although we have recognized that there are limited circumstances
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wherein the State may be considered the victim of a crime for purposes of
restitution, see Igbinovia v. State, 111 Nev. 699, 706-07, 895 P.2d 1304,
1308-09 (1995) (concluding that a police department was not entitled to
restitution as a victim for the cost of setting up a drug transaction), we
have held that the State was a victim for purposes of awarding restitution
in a case where the defendant was convicted of abusing his children and
the State incurred expenses for the medical and foster care of the children.
Roe v. State, 112 Nev. 733, 735, 917 P.2d 959, 960 (1996).
Accordingly, only the district court during the sentencing
phase of the criminal trial had the power to grant restitution to the State
for the total cost imposed on it by Major's criminal act. Nevertheless, this
created an overlap between the family court's authority to impose a
support obligation and a district court's authority to impose restitution as
part of a criminal sentence. See Rohlfing, 106 Nev. at 906, 803 P.2d at
662. Such an overlap need not undermine the jurisdiction of either the
family court or the sentencing court. In the current case, where the
support obligation and the restitution arose from the same occurrence and
compensate for overlapping expenditures, we note with approval that the
district court offset the restitution amount by the amount of the support
obligation.
Accordingly, we conclude that the district court had
jurisdiction to award restitution to the State for the cost of care for the
victim of Major's crime to the extent that the district court's order did not
overlap with the existing support obligation imposed by the family court.
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Sufficient evidence supports the restitution award
Major next argues in the alternative that we should remand
for a hearing to establish the actual cost of care for his daughter. We
conclude that this contention lacks merit.
NRS 176.033(1)(c) provides that a district court may impose
restitution at sentencing for the victims of crimes. Social Services can be a
"victim" for purposes of restitution. Roe, 112 Nev. at 735-36, 917 P.2d at
960. Although we have cautioned sentencing courts to "rely on reliable
and accurate evidence in setting restitution," a defendant is not entitled to
a full evidentiary hearing at sentencing. Martinez v. State, 115 Nev. 9, 13,
974 P.2d 133, 135 (1999). Thus, "[silo long as the record does not
demonstrate prejudice resulting from consideration of information or
accusations founded on facts supported only by impalpable or highly
suspect evidence, this court will refrain from interfering with the sentence
imposed." Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976).
At sentencing, Peeks testified that Social Services based the
cost-of-care rate on the total cost of running Kids Kottage. Peeks also
testified that the federal government provides reimbursement of up to 56
percent of the cost of care for certain eligible children. She did not know,
however, whether Social Services received such a reimbursement for
Major's daughter's care. The district court required Social Services to
notify the district court if it did receive such a reimbursement in order to
allow the district court to amend the restitution order to reflect the
reimbursement. Major did not present any evidence that Social Services
actually received such a reimbursement.
We conclude that the evidence presented by Social Services for
the cost of care is sufficient to support the district court's order. Although
the question remains whether Social Services received a reimbursement,
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Major makes no showing there actually was such a reimbursement, and
the district court appears to have imposed on Social Services a continuing
obligation to notify the district court if there was a reimbursement to
allow the court to revise the restitution order. Given these circumstances,
we affirm the judgment of conviction.
Parraguirre
We concur:
tPeoleet.
J.
Saitta
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