Bellisario v. Bellisario (Child Custody) ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
BRADLEY JOHN BELLISARIO, No. 84128
Appellant,
vs.
FILE
EMILY BELLISARIO,
SEP 1 6 2022
Respondent.
ELEASETH A. BROWN
CLER OF SUPREME COU
ORDER AFFIRMING IN PART, BY
ÐERIFY CLERKI
REVERSING IN PART, AND REMANDING
This is an appeal from a district court divorce decree. Eighth
Judicial District Court, Family Court Division, Clark County; Mary D.
Perry, Judge.'
The parties were married for seven years and have three
children together. Appellant owned his own law practice but stopped
practicing during the divorce proceedings and his law license was
temporarily suspended.2 During the proceedings, the district court entered
orders (1) deeming appellant a vexatious litigant and (2) limiting
appellant's ability to present evidence at trial due to his failure to comply
with discovery rules and orders. Appellant was incarcerated and not
present in court when the divorce trial took place. After considering
respondent's testimony and evidence, the district court entered the divorce
decree, which appellant now challenges.
Appellant first argues that the district court violated his due
process rights by conducting the divorce trial without him being present.
We disagree. See Callie v. Bowling, 123 Nev. 181, 183, 160 P.3d 878, 879
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
2After the divorce decree was entered, appellant was disbarred from
the practice of law in Nevada. In re Discipline of Bellisario, No. 84144, 2022
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OF WL 1056122 (Nev. April 7, 2022) (Order of Disbarment).
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(0} 1947A
A? -p,or iv
(2007) (explaining that procedural due process requires a party to have
notice and an opportunity to be heard and providing that this court reviews
a constitutional challenge based on procedural due process de novo).
Appellant had notice of the divorce trial and never sought a continuance.
Thus, we cannot conclude that the district court violated his due process
rights by conducting the trial on the noticed trial date.3
Second, appellant contends that the district court erred in
deerning him a vexatious litigant. The district court properly considered
the four-factor analysis before entering the order, Jones v. Eighth Judicial
District Court, 130 Nev. 493, 496, 330 P.3d 475, 477 (2014) (providing that
before a party can be declared a vexatious litigant, the district court must
(1) provide notice of and an opportunity to oppose the vexatious litigant
declaration; (2) create a record of why the restrictive order is warranted;
"(3) make substantive findings as to the frivolous or harassing nature of the
litigant's actions;" and (4) narrowly tailor the restrictions), and the record
supports the district court's findings. Appellant filed a multitude of
meritless motions, notices, and oppositions, which mostly contained copied
and pasted recitations of facts and law already considered and rejected by
the court. Additionally, appellant filed harassing civil lawsuits against
respondent, respondents' attorneys and, two of the therapists treating the
parties' minor child. Because those civil lawsuits arose out of the divorce
action, the district court properly considered them in deciding the vexatious
litigant motion. Additionally, appellant had notice of the motion and the
district court narrowly tailored the restrictions placed on appellant's filings.
3To the extent appellant ties his due process argument to his pending
criminal charges, we conclude that argument lacks merit as appellant
points to no authority requiring a district court to continue a divorce case
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when one of the parties is facing criminal charges.
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Thus, we conclude the district court did not err in deeming appellant a
vexatious litigant.
Third, appellant argues that the district court abused its
discretion in calculating his child support obligation by imputing an income
to him while his law license was suspended and without specifically
considering the NAC 425.125 factors. The district court imputed an income
to appellant without first finding that appellant was underemployed or
unemployed without good cause, as required by NAC 425.125(1). Further,
the district court's order contains no findings on the factors in NAC
425.125(2) that must be considered before imputing an income to a party.
While a district court has wide discretion in child support matters, we are
unable to determine if the district court properly exercised its discretion
under these circumstances.4 See Noble v. Noble, 86 Nev. 459, 464, 470 P.2d
430, 433 (1970) (reversing a district court's child support decision because
it failed to make supporting findings and the record was unclear to imply
such, and remanding for it to make sufficient findings), overruled on other
grounds by Westgate v. Westgate, 110 Nev. 1377, 887 P.2d 737 (1994).
Accordingly, we reverse the decree as to the child support determination
and remand for the district court to make sufficient factual findings under
NAC 425.125.
4To the extent appellant argues that the district court's child custody
order must be reversed because the visitation schedule lacks specificity, we
disagree. The order is sufficiently specific considering the circumstances
present at the time. Additionally, the order permits appellant to seek
modification as soon as he completes his psychological evaluation.
Further, we are not persuaded by appellant's argument that the
district court improperly extended the temporary protective order (TPO), as
motion practice and a hearing concerning the TPO occurred after the
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January 25 hearing and before the extension of the TPO.
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Fourth, appellant contends that the district court abused its
discretion when it awarded respondent spousal support without making
statutory factual findings. We agree. See Klabacka v. Nelson, 133 Nev. 164,
178-79, 394 P.3d 940, 952 (2017) (providing that this court reviews a district
court's decision concerning spousal support for an abuse of discretion). NRS
125.150(9) lists factors the district court must consider before awarding
spousal support. Nothing in the record indicates that the district court
considered these factors before awarding respondent spousal support.
Thus, we reverse the spousal support portion of the decree and remand for
the district court to make sufficient factual findings under NRS 125.150(9).5
We affirm all other aspects of the divorce decree.
It is so ORDERED. 6
Parraguirre
J. Sr.J.
Cadish Gibbo
cc: Hon. Mary D. Perry, District Judge, Family Court Division
Law Practice, Ltd.
Roberts Stoffel Family Law Group
Eighth District Court Clerk
5To the extent appellant argues the district court abused its discretion
in awarding respondent attorney fees and costs for the entire case, that
issue is not properly before us, as the district court had not yet made a final
ruling on fees and costs when appellant filed his notice of appeal.
6The Honorable Mark Gibbons, Senior Justice, participated in the
SUPREME COURT decision of this matter under a general order of assignment.
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