Reed v. Reed (Child Custody) ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
AMANDA REED, No. 83354
Appellant,
vs. FILED
DEVIN REED,
Respondent.
ORDER OF REVERSAL AND REMAND
This is an appeal from a district court order denying a motion
to modify child custody. Eighth Judicial District Court, Family Court
Division, Clark County; Michele Mercer, Judge.
Appellant Amanda Reed and respondent Devin Reed are the
parents of two minor children. In 2018, before their divorce, they entered a
judicially approved agreement to share joint legal and physical custody of
the children. Amanda later filed a motion to modify custody. In 2019, the
parties stipulated to participate in a settlement conference "to negotiate the
remaining financial issuee and prepare a divorce decree. The parties also
stipulated that they would adhere to the 2018 custodial arrangement but
potentially revisit the issue based on the results of a pending custody
evaluation. At the settlement conference, the parties resolved all the issues
in the divorce proceedings with the caveat that Amanda had a pending
motion to modify child custody and those proceedings would continue,
unaffected by the settlement agreement. Despite this stipulation, the
divorce decree approved by the district court expressly awarded the parties
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joint legal and physical custody of the children. But the decree also stated
that "[t]he parties acknowledge that there is currently a request[ ] pending
by [Amanda] to modify custody. Nothing in this Decree shall act as a waiver
of [Amanda's] right to pursue said request."
Two days after entry of the divorce decree Amanda filed a
motion to adopt the recommendations of the completed custody evaluation
and to modify custody. Amanda supported her motion with allegations that
predated the divorce decree, including claims that Devin engaged in acts of
domestic violence. Devin opposed the motion and filed a supplement
requesting that he be awarded primary custody of the children, making
allegations related to Amanda's use of prescription drugs that predated the
divorce decree. The district court set the matter for an evidentiary hearing
before the case was transferred to another family court department. At the
hearing, the newly assigned judge did not receive any evidence after finding
that the decree was a final order and res judicata precluded the
presentation of evidence that predated the decree. The district court denied
the requests to modify the parties joint custody arrangement but adjusted
the custodial schedule.
On appeal, Amanda asserts that the decree was not a final order
as to child custody because the clause discussing her pending motion to
modify custody acts as a "savinge provision that reserved the issue for
further litigation. See Rennels v. Rennels, 127 Nev. 564, 569, 257 P.3d 396,
399 (2011) (explaining that a final order "leaves nothing for the future
consideration of the court"). Conversely, Devin contends that the clause
only acknowledges that the divorce decree did not prohibit Amanda from
pursuing a custody modification in the future as child custody may be
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modified at any time. See NRS 125C.0045(1). Because both interpretations
are reasonable, the district court properly found the language ambiguous.
See Shelton v. Shelton, 119 Nev. 492, 497, 78 P.3d 507, 510 (2003)
(recognizing that a contract susceptible to more than one reasonable
interpretation is ambiguous).
While contract interpretation, including interpreting a
stipulated divorce decree, generally presents a question of law reviewed de
novo when facts are not in dispute, Henson v. Henson, 130 Nev. 814, 818,
334 P.3d 933, 936 (2014), the contract here is ambiguous. "The best
approach for interpreting an ambiguous contract is to delve beyond its
express terms and examine the circumstances surrounding the parties'
agreement in order to determine the true mutual intentions of the parties."
Id. (internal quotation marks omitted). Such an "examination includes not
only the circumstances surrounding the contract's execution, but also
subsequent acts and declarations of the parties." Id.Despite the award of joint custody in the divorce decree, the
ambiguity calls into question whether the parties intended the decree to be
the final custody agreement and the district court's conclusion that the
decree had preclusive effect. See Rennels, 127 Nev. at 569, 257 P.3d at 399(explaining that this court will give preclusive effect to custody "agreements
if they are deemed finar). The record provides some support for Amanda's
position, including the stipulation that the settlement proceedings would
not affect the custody issue until the district court addressed it; Devin's own
post-decree request to modify custody based, in part, on pre-decree
allegations; and the district court's finding (before the case was transferred
to another department) that both the parties raised allegations sufficient to
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warrant an evidentiary hearing on the issue. See Rooney v. Rooney, 109
Nev. 540, 542, 853 P.2d 123, 124 (1993) (concluding that district courts have
discretion to deny a motion for custody modification without a hearing
unless the moving party demonstrates 'adequate cause for holding a
hearing). The district court therefore should have taken evidence as to the
parties' intent at the time they agreed to the stipulated settlement before
deciding the child custody issue.' See Mizrachi v. Mizrachi, 132 Nev. 666,
678, 385 P.3d 982, 990 (Ct. App. 2016) (concluding that the district court
should have held an evidentiary hearing to determine the parties' intent
rather than deciding the issue "based upon contradictory sworn pleadings
[and] arguments of counser); see also Galardi v. Naples Polaris, LLC, 129
Nev. 306, 310, 301 P.3d 364, 367 (2013) ("Contract interpretation strives to
discern and give effect to the parties' intended meaning."). Given the
foregoing, we conclude that the district court erred in not holding an
evidentiary hearing to resolve the settlement's ambiguity.2 See Nev. Power
'The district court found that Amanda's filing of her motion two days
after entry of the divorce decree demonstrated that she did not negotiate
the terms of the divorce in good faith. And the district court found that the
clause acknowledging Amanda's pending custody motion did not represent
Devin's consent to further litigate the child custody issue. Because the
district court did not conduct an evidentiary hearing, these findings are not
supported by substantial evidence. Cf. Ellis v. Carucci, 123 Nev. 145, 149,
161 P.3d 239, 242 (2007) (providing that this court "will not set aside the
district court's factual findings if they are supported by substantial
evidence"); see also Jain v. McFarland, 109 Nev. 465, 475-76, 851 P.2d 450,
457 (1993) ("Arguments of counsel are not evidence and do not establish the
facts of the case.").
Given our disposition, we need not address Amanda's other
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arguments raised on appeal.
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Co. v. Fluor Ill., 108 Nev. 638, 646, 837 P.2d 1354, 1360 (1992) (concluding
that an evidentiary hearing may be necessary to determine disputed
questions of fact); see also Shelton, 119 Nev. at 497, 78 P,3d at 510.
Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.3
4:21aahmtly."."""rC.J.
arraguirre
,J Sr.J.
Herndon
cc: Hon. Michele Mercer, District Judge, Family Court Division
Israel Kunin, Settlement Judge
Kainen Law Group
Alex B. Ghibaudo, PC
Eighth District Court Clerk
3The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
SUPREME COURT
OF
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