Ginsbach v. Ginsbach (Child Custody) ( 2013 )

 physical custody of the children based on respondent's severe parental
alienation and alleged alcohol use. Under NRS 125.480(1), when
determining child custody, the sole consideration of the court is the child's
best interest. To determine what custody arrangement is in the child's
best interest, the court must consider various statutory factors, NRS
125.480(4), but ultimately, the child custody arrangement rests in the
district court's sound discretion. See Wallace v. Wallace, 112 Nev. 1015,
1019, 922 P.2d 541, 543 (1996); Sims v. Sims, 109 Nev. 1146, 1148, 865
P.2d 328, 330 (1993). The district court's factual determinations must be
supported by substantial evidence. Rico v. Rodriguez, 121 Nev. 695, 701,
120 P.3d 812, 816 (2005).
Here, the district court specifically found that respondent had
a close bond with the children and had been their primary caregiver, while
appellant's relationship with the children was strained due in large part to
appellant's behavior. The district court considered that while both parties
had contributed to the estrangement between appellant and the children,
the primary cause of the estrangement was appellant's conduct, rather
than parental alienation by respondent. Having reviewed the record, we
conclude that the district court's findings are supported by substantial
evidence and that the district court did not abuse its discretion in
awarding primary physical custody to respondent. See Rico, 121 Nev. at
701, 120 P.3d at 816; Wallace, 112 Nev. at 1019, 922 P.2d at 543; Sims,
109 Nev. at 1148, 865 P.2d at 330.
Appellant also contends that the district court's child support
order was not based on appellant's actual current income because his
income had decreased due to the economic downturn. The obligation for
support of the noncustodial parent for three children is 29 percent of the
SUPREME COURT
OF
NEVADA 2
(0) 1947A Jii
parent's gross monthly income, not to exceed the presumptive maximum
amount. NRS 125B.070(1). This court reviews a child support order for
an abuse of discretion. Wallace, 112 Nev. at 1019, 922 P.2d at 543.
Here, the $1,305 monthly child support award was based on
appellant's gross monthly income of $4,500. The district court determined
that appellant had historically earned an income as a real estate agent, a
sports handicapper, and a gambler, and that he had been less than candid
about his income throughout the proceedings. In arriving at the amount,
the district court relied on appellant's admissions in• various documents
and to the court-appointed evaluator. The district court also considered
the passive income and monetary gifts that respondent received from her
extended family. Having reviewed the record, we conclude that the
district court did not abuse its discretion in awarding child support. See
Wallace, 112 Nev. at 1019, 922 P.2d at 543.
Finally, appellant contends that the district court improperly
allowed respondent to spend excessive attorney fees to discover the
circumstances surrounding appellant's prior arrest. Appellant also
challenges the attorney fees award on the basis that respondent recently
inherited money. In awarding attorney fees, however, the court properly
considered appellant's contemptuous conduct during the proceedings as
well as the need for respondent to enforce appellant's temporary spousal
support obligation. The court entered an attorney fees award that was
substantially lower than the total fees incurred by respondent. Having
reviewed the record, we conclude that the district court did not abuse its
discretion in awarding attorney fees. See NRS 125.150(3); NRS
125B.140(2)(c)(2); Miller v. Wilfong, 121 Nev. 619, 119 P.3d 727 (2005).
SUPREME COURT
OF
NEVADA 3
(0) 1947A
Having concluded that appellant's arguments are without
merit, we affirm the divorce decree in Docket No. 59568.
Docket No. 61578
While the appeal from the divorce decree was pending,
respondent filed a motion in the district court to relocate with the children
to Wisconsin.' Despite the pending appeal, respondent elected not to
follow the procedure for a limited remand as set forth in Huneycutt v.
Huneycutt, 94 Nev. 79, 575 P.2d 585 (1978), and Foster v. Dingwall, 126
Nev. , 228 P.3d 453 (2010), to resolve the relocation issue. The district
court entered an order granting the motion, allowing respondent to
relocate with the children, and modifying appellant's visitation schedule to
accommodate the relocation. Appellant filed this appeal.
This court directed respondent to show cause why the district
court's order should not be summarily vacated on the basis that the
district court lacked jurisdiction to grant relocation while the custody
issue was on appeal from the divorce decree. In response, respondent
contends that the relocation issue is collateral and would not be affected
by any outcome of the first appeal of the divorce decree. 2 Respondent
argues that even if the custody decision was reversed on appeal and a
'The motion for relocation was heard by District Judge Teuton,
rather than District Judge Pollock, who entered the divorce decree.
Although generally only one judge may preside over the case, certain
events led Judge Pollock to recuse himself from the case in March 2012,
and the matter was reassigned to Judge Teuton. See DCR 18; EDCR 5.42.
Respondent filed a motion to exceed the page length in her
2
response, which appellant opposes. Having considered the parties'
arguments, we grant respondent's motion.
SUPREME COURT
OF
NEVADA 4
(0) I947A
different legal standard applied to relocation, the district court would still
have permitted respondent to relocate with the children under the
particular facts of this case. We disagree.
This court has held that the district court lacks jurisdiction to
modify a child custody order that is on appeal, but only retains jurisdiction
to decide issues that are independent from and collateral to the appealed
order or to enter temporary orders on an emergency basis. Mack-Manley
v. Manley, 122 Nev. 849, 855, 138 P.3d 525, 529-30 (2006). Here,
relocation was not requested on a temporary, emergency basis and
pertained directly to the child custody issues that were clearly and directly
before this court. In fact, the district court's decision allowing respondent
to relocate with the children was predicated on respondent having primary
physical custody under the original divorce decree. See Potter v. Potter,
121 Nev. 613, 617-18, 119 P.3d 1246, 1249 (2005) (stating that a parent
must have primary physical custody of the minor child before filing a
petition to relocate with that child under NRS 125C.200). If this court had
reversed the custody arrangement on appeal, the relocation order would
have been ineffective because respondent could not request relocation
under NRS 125C.200 without first having primary physical custody of the
children. A different custody arrangement would require the application
of a different legal standard in deciding relocation. Compare Potter, 121
Nev. at 618, 119 P.3d at 1249 (setting forth the standard to be applied in
relocation cases when parents share joint physical custody), with Schwartz
v. Schwartz, 107 Nev. 378, 382-83, 812 P.2d 1268, 1271 (1991) (setting
forth the relocation standard applicable in primary physical custody
cases).
SUPREME COURT
OF
NEVADA 5
(0) 1947A
Thus, we conclude that the district court lacked jurisdiction to
grant respondent's motion to relocate with the children while the appeal
from the divorce decree was pending, and we vacate that order. We
express no opinion as to the merits of the relocation request, and nothing
in our order precludes respondent from reasserting the motion to relocate
in the district court.
It is so ORDERED. 3
cc: Hon. Kenneth E. Pollock, District Judge
Hon. Robert Teuton, District Judge
Carolyn Worrell, Settlement Judge
Jason William Ginsbach
Willick Law Group
Eighth District Court Clerk
3 0n April 24, 2013, respondent filed a motion to strike appellant's
April 22, 2013, change of address in both appeals. Having considered the
motion, we grant it and direct the clerk of this court to strike the April 22,
2013, change of address in both appeals. Finally, we direct the clerk of
this court to file the proper person documents provisionally received from
appellant on April 23, 2013. We have considered the proper person
motions and other documents filed by appellant, and we conclude that any
relief requested therein is not warranted.
6