Egosi v. Egosi (Child Custody)

IN THE SUPREME COURT OF THE STATE OF NEVADA
YOAV EGOSI, No. 83454
Appellant,
vs.
PATRICIA EGOSI, N/K/A PATRICIA
LEE WOODS, jUN ": 201?
Respondent. :
CLERK
Aa
ORDER AFFIRMING IN PART, eY more :_;CEFIA
VACATING IN PART, AND REMANDING
This is an appeal from a divorce decree. Eighth Judicial District
Court, Family Court Division, Clark County; Bryce C. Duckworth, Judge.'
Following protracted litigation, the district court entered a divorce decree.
Among other provisions, the district court modified child custody, ordering
joint physical and legal custody rather than resting sole custody with
appellant. The district court also sanctioned appellant for contempt for
noncompliance with previous court orders regarding obtaining a valuation
of a marital asset. Appellant challenges these custody and contempt
rulings.
Appellant first argues that the district court deprived him of a
meaningful opportunity to present his case at the custody modification
hearing when respondent received more time to present her case.2
Appellant did not contemporaneously object. Parents in a custody dispute
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted.
2It is unclear whether appellant's representation that the parties
received disparate time is accurate. The district court explained that time
included time spent cross-examining and making closing argument.
Appellant relies on the ranges of pages of the transcript where the parties
SUPREME COURT presented their cases without accounting for the other portions of time that
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have due process protections that require notice before custody is modified
and the opportunity to oppose evidence presented. Gordon v. Geiger, 133
Nev. 542, 545-46, 402 P.3d 671, 674 (2017). Appellant does not argue that
he had no notice of the custody modification hearing or that he lacked the
opportunity to present evidence, and the record shows that he attended the
hearing with counsel and presented a prepared theory of the case.
Appellant further does not argue on appeal that there was any evidence
that he wanted to present yet was prevented from putting forward. We
conclude that appellant therefore has not shown that the district court
abused its discretion in this regard. See id. at 545, 402 P.3d at 674
(reviewing district court child custody decisions for an abuse of discretion).
Appellant next argues that the district court should not have
found a change in circumstances affecting the parties chilcFs welfare.
Appellant contends that the only changed circumstances affected
respondent, not the child. Appellant further contends that the district court
made findings in this regard based on the judge's own opinion, not the
record. These arguments fail. "A modification of primary physical custody
is warranted only when (1) there has been a substantial change in
circumstances affecting the welfare of the child, and (2) the modification
would serve the child's best interest." Ellis v. Carucci, 123 Nev. 145, 153,
161 P.3d 239, 244 (2007). The district court found that respondent had
made considerable improvement in her mental stability—including
completing classes in parenting and anger management and obtaining
substance abuse treatment—such that she was a more fit parent.
Substantial evidence supports these findings, which are not clearly wrong.
See id. at 149, 161 P.3d at 242 (upholding district court findings supported
by substantial evidence). The district court accordingly ordered joint
physical custody on the basis that these changes made joint custody more
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suitable and that joint custody served the child's best interest in light of the
totality of circumstances. The record belies appellant's contention that the
district court did not explain how the change in circumstances affected the
child; it did so with commendable thoroughness.3 We conclude that
appellant has not shown that the district court abused its discretion in this
regard.
Appellant next argues that the district court misconstrued
Georgia law in concluding that the prenuptial agreement was valid in part.
The parties agree that the agreement is governed by Georgia law. Under
Georgia law, the court reviewing a prenuptial agreement sits in equity and
has discretion to approve or reject the agreement in whole or in part.
Alexander v. Alexander, 610 S.E.2d 48, 50 (Ga. 2005). The court should
consider whether the agreement is unconscionable; if it was obtained by
fraud, duress, mistake, misrepresentation, or omission; and whether
circumstances have changed to render enforcement unfair or unreasonable.
Id. at 49. The district court found that appellant made a limited and late
disclosure of assets, that appellant had a superior financial position when
the agreement was entered, and that appellant had a better understanding
of the agreernent.4 The court thus found that the agreement provided that
only the property specifically identified would be presumed to be separate
3Insofar as appellant argues that the district court relied on evidence
that preceded the previous custody order, he is mistaken. The district court
noted earlier evidence to illuminate the context of the dispute between the
parties and to show the changes in circumstances since the prior order.
4 Therecord belies appellant's contention that the district court gave
no explanation for its application of equity. And the record repels
appellant's argument that the district court altered the text when it
enforced the agreement in part; rather, it declined to give force to the term
providing that property acquired after marriage would be presumed to be
SUPREME COURT separate property.
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property under the agreement. In so ruling, the court declined to give force
to a term providing that property acquired after marriage would be separate
property unless documented otherwise. The court explained that it would
have found the agreement unconscionable but for its equitable authority to
construe it narrowly. Substantial evidence in the record supports the
district court's findings on this matter. On that basis, the district court
appropriately construed Georgia law and exercised its equitable authority
to apply the prenuptial agreement in part in order to avoid striking the
agreement as unconscionable. We conclude that appellant accordingly has
not shown that the district court abused its discretion in this regard.
Appellant next argues that the district court violated his right
to due process by entering a written order regarding the prenuptial
agreement that deviated from the court's oral pronouncements in the
evidentiary hearing. A district court's oral pronouncement is not final, and
the court may modify its determination when it files a written order. Miller
v. Hayes, 95 Nev. 927, 929, 604 P.2d 117, 118 (1979). We conclude that
appellant has not shown that the district court erred in this regard.
Appellant next argues that the district court improperly shifted
the burden to him to demonstrate that Joi Biz was separate property. After
the district court determined that the prenuptial agreement applied only to
specifically listed property and that Joi Biz was formed after the parties
married, Joi Biz was presumptively community property. See Forrest v.
Forrest, 99 Nev. 602, 604, 668 P.2d 275, 277 (1983) ("All property acquired
after marriage is presumed to be community property."). Appellant could
rebut this presumption with a showing by clear and convincing evidence.
Id. at 604-05, 668 P.2d at 277. In_ light of the presumption that the company
was community property, we conclude that appellant has not shown that
the district court abused its discretion in this regard.
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Appellant next argues that the district judge should have
recused himself on learning that he knew appellant's expert's family
personally, consequently excluding the expert and the expert report to avoid
the appearance of bias. No contemporaneous objection was raised.
Appellant misplaces his reliance on NRS 1.230 to argue sua sponte recusal
was required, as NRS 1.230 does not require a judge to recuse him or herself
on the basis of any relationship or risk of appearance of bias with a witness.5
Cf. Kirksey v. State, 112 Nev. 980, 1005, 923 P.2d 1102, 1118 (1996) ("A
judge has an obligation not to recuse himself where there is no occasion to
do so."). As appellant has identified no basis compelling sua sponte recusal,
we conclude that appellant has not shown that the district court erred in
this regard.
Lastly, appellant argues that the district court erred in
calculating the contempt sanction amount it imposed. The district court
ordered appellant to pay $3500 for a forensic expert to value a particular
marital asset, the company Joi Biz. Appellant failed to comply until 1050
days after the deadline given, at which point the sum was no longer
sufficient to pay the expert's fees. The district court sanctioned appellant
by $100 per day of unnecessary delay. The district court offset the sanction
by $15,000 in attorney fees owed to appeLlant. Of the $90,000 remaining,
the district court ordered that $80,000 of the sanction was stayed and would
5Further, the record belies appellant's contention that the expert was
disclosed months before trial; rather, the record shows that the expert was
not noticed until six days before the trial.
And the record also belies appellant's suggestion that he will be
unable to present a business valuation without this expert. The record
shows that a suitable forensic expert was identified—whose fees appellant
was ordered to pay—in 2017. Appellant has made no showing that only the
SUPREME COURT excluded expert could perform the work required.
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be purged upon appellant's payment of $10,000 to a suitable forensic expert.
Contempt sanctions may be civil, seeking to compel compliance or remedy
harm, or they may be criminal, seeking to punish misconduct. Matter of
Hughes, 136 Nev. 399, 403, 467 P.3d 627, 631 (2020). Civil contempt
sanctions cease on a party's compliance. Id. As the sanction here would be
nullified on appellant's payment of the forensic expert fees—as originally
ordered—the contempt sanction here was civil in nature. Civil contempt
sanctions are limited to a party's actual loss. State, Dep't of Indus. Relations
v. Albanese, 112 Nev. 851, 856, 919 P.2d 1067, 1071 (1996). The district
court accordingly abused its discretion in imposing a sanction based on an
arbitrary daily penalty rather than determining respondent's actual losses
incurred as a result of appellant's delay." See In re Water Rights of the
Humboldt River, 118 Nev. 901, 907, 59 P.3d 1226, 1230 (2002) (reviewing a
"Appellant also argues that the sanction was impermissible because
the time period used to calculate the contempt sanction included a period
when an appeal was pending, which he argues provided cause for not
complying. me record belies appellant's representation that the prenuptial
agreement, and thus whether Joi Biz was a marital asset, was at issue in
that appeal, Egosi v. Egosi, Docket No. 76144 (Order Dismissing Appeal in
Part, March 2, 2020) (concluding that the court lacked jurisdiction over the
prenuptial-agreement order); rather, that appeal addressed an order
denying a motion to relocate the parties child, Egosi v. Egosi, No. 76144,
2020 WL 2026608 (Order of Affirmance) (Nev. Apr. 24, 2020). The district
court reasserted its order multiple times throughout this litigation. We note
that appellant was already in violation of the district court's order when he
appealed the relocation order, failed to comply with the original order for
months after the partial dismissal, and ultimately delayed compliance to
such an extent that the payment ordered was no longer sufficient.
Appellant has proffered no authority showing that a contempt sanction was
not appropriate in these circumstances, and we conclude that appellant has
not shown that the district court abused its discretion in this regard. See
Skender v. Brunsonbuilt Constr. & Dev. Co., 122 Nev. 1430, 1435, 148 P.3d
710, 714 (2006) ("An abuse of discretion occurs if the district court's decision
SUPREME COURT is arbitrary or capricious or if it exceeds the bounds of law or reason.").
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contempt order for abuse of discretion). We therefore vacate the district
court's contempt sanction order and remand for proceedings to calculate the
appropriate sanction based on respondent's actual loss.7
Accordingly, we
ORDER the judgment of the district court AFFIRMED IN
PART AND VACATED IN PART AND REMAND this matter to the district
court for proceedings consistent with this order.8
Parraguirre
J. Sr.J.
cc: Hon. Bryce C. Duckworth, District Judge, Family Court Division
Israel Kunin, Settlement Judge
Law Office of Aniela K. Szymanski, Esq.
McFarling Law Group
Isso & Hughes Law Firm
Eighth District Court Clerk
7We note that recalculation becomes moot if appellant complies with
the district court's order so as to purge the sanction.
8The Honorable Mark Gibbons, Senior Justice, participated in the
SUPREME COURT decision of this matter under a general order of assigmnent.
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