Hallinan v. Hallinan (Child Custody) ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
SCOTT JOHN HALLINAN, No. 65406
Appellant,
vs.
ERIKA NICOLE HALLINAN,
Respondent.
FILED
JAN 2 7 2616
ACIE K. LI EMAN
ese
ORDER OF AFFIRMANCE
This is an appeal from a post-divorce decree district court
order concerning child custody and relocation. Eighth Judicial District
Court, Family Court Division, Clark County; Jennifer Elliott, Judge.
The parties are divorced and have one child together. They
established an untraditional custody arrangement where the child spent
many months at a time in each parent's care. In July 2013, appellant,
who is a member of the United States Air Force, sought to modify custody
and relocate the child because appellant had been permanently assigned
to a military base in Okinawa, Japan In the time between the parties'
separation and appellant's motion, the child had been in respondent's sole
care for a 17-month period, had been in appellant's sole care for a 9-month
period, and had been back in respondent's sole care for 2 months. The
district court determined that it was in the child's best interest to remain
with respondent and denied appellant's motion to relocate the child.
Appellant first argues that under River° v. Rivero, 125 Nev.
410, 216 P.3d 213 (2009), he was the child's de facto primary physical
custodian because he had physical custody of the child for nearly ten
months in the year prior to filing the custody motion. See River°, 125 Nev.
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at 427, 216 P.3d at 225 (providing a guideline for determining when
parties have de facto joint physical custody based on custodial time over
the course of one year). Because the parties agreed to this arrangement
with large blocks of custodial time, instead of one that changed on a
weekly basis like the one at issue in Rivero, the district court did not
abuse its discretion when it based its determination on the child's best
interest and considered the parties' past custody arrangements beyond the
Rivero guideline's one-year timeframe. See Wallace v. Wallace, 112 Nev.
1015, 1019, 922 P.2d 541, 543 (1996) ("Matters of custody and support of
minor children rest in the sound discretion of the trial court"); see also
Bluestein v. Bluestein, 131 Nev., Adv. Op. 14, 345 P.3d 1044, 1048 (2015)
(reiterating that "in custody matters, the child's best interest is
paramount").
Appellant next argues that the district court considered
evidence of physical custody and domestic violence that occurred before
the parties' most recent custody order in violation of McMonig/e v.
McMonigle, 110 Nev. 1407, 887 P.2d 742 (1994), overruled on other
grounds by Castle v. Simmons, 120 Nev. 98, 86 P.3d 1042 (2004).
Although McMonigle generally prohibits consideration of events preceding
the most recent custody order from being used to establish a change of
circumstances, McMonigle, 110 Nev. at 1408, 887 P.2d at 743, there is an
exception for evidence of domestic violence that has not previously been
presented to the court, Castle, 120 Nev. at 105, 86 P.3d at 1047
(concluding that the changed circumstances doctrine does not bar the
presentation of evidence of domestic violence when a party or the court
was unaware of the evidence at the time of the previous custody order).
Additionally, no substantial changed circumstances were required for the
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court to review custody as neither party had primary custody of the child,
Riven, 125 Nev. at 430, 216 P.3d at 227, and regardless, appellant's
relocation to Japan was a sufficient change in circumstances to warrant a
review of custody, Hayes v. Gallacher, 115 Nev. 1, 7, 972 P.2d 1138, 1141
(1999) (proposed relocation constituted changed circumstances and
justified reexamining custody). Thus, this evidence was not prohibited by
MeMonigle and the district court did not abuse its discretion when it
heard the evidence as part of a consideration of the child's best interest.
Appellant also asserts that the district court impermissibly
elicited evidence on respondent's behalf. While the district court played
an active role in the relocation hearing and examined each witness, the
district court's actions were not a violation of its duty to remain impartial.
See NRS 50.145(2) (explaining that a judge may interrogate witnesses);
Azbill v. State, 88 Nev. 240, 249, 495 P.2d 1064, 1070 (1972) ("A trial
judge has the right to examine witnesses for the purpose of establishing
the truth or clarifying testimony, but in doing so he must not become an
advocate for either party . ."); NCJC Canon 2, Rule 2.2, Comment 4
(providing that judges must remain impartial and may make reasonable
accommodations to ensure self-represented litigants have an opportunity
to have their matter fairly heard).
Lastly, appellant challenges the district court's factual
findings and consideration of certain testimony. The admission of
testimony from respondent's witness about out-of-court statements
regarding appellant disciplining the child was harmless, as even without
this testimony, there remains substantial evidence in the record for the
court's finding that both parents had used corporal punishment. NRCP 61
(providing that no error in the admission of evidence is ground for
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modifying or disturbing an order unless the error is inconsistent with
substantial justice); McMonigle, 110 Nev. at 1409, 887 P.2d at 744
(explaining that in a bench trial when a court receives inadmissible
evidence, it is presumed that the court disregarded the inadmissible
evidence when there is other substantial evidence upon which the court
based its findings). Substantial evidence also supports the district court's
findings regarding respondent's mental health, the child's relationships
with the parties' families, witness credibility, and that appellant had
reasonable alternative visitation.' Ellis v. Carucci, 123 Nev. 145, 149, 161
P.3d 239, 242 (2007).
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
C.J.
Parraguirre
J. J.
'Any deficiency in the evidence regarding the district court's
comments about appellant's size and military training in the context of
domestic violence was harmless error, as the district court's findings of
domestic violence were independent of these considerations and the
evidence of domestic violence did not determine the district court's custody
decision, as the court found that both parties overcame the presumption in
NRS 125.480(5) (2009) and that the child would be safe in either party's
custody. NRCP 61.
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cc: Hon. Jennifer Elliott, District Judge, Family Court Division
Pecos Law Group
Black & LoBello
Legal Aid Center of Southern Nevada
Anne R. Traum
Snell & Wilmer, LLP
Eighth District Court Clerk
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