HARGROVE v. WARD , 2022 NV 14 ( 2022 )

138 Nev., Advance Opinion ¡Li
IN THE SUPREME COURT OF THE STATE OF NEVADA
LILLIAN LACY HARGROVE, No. 81331
Appellant,
vs. FILED
THOMAS REID WARD,
Respondent. MAR 2 4 2022
PUTY CLERK
Appeal from a district court order denying a request for child
support. Eighth Judicial District Court, Family Court Division, Clark
County; Bill Henderson, Judge.
Affirmed in part, reversed in part, and remanded.
Breeden & Associates, PLLC, and Adam J. Breeden, Las Vegas,
for Appellant.
Roberts Stoffel Family Law Group and Amanda M. Roberts, Las Vegas,
for Respondent.
BEFORE THE SUPREME COURT, PARRAGUIRRE, C.J., STIGLICH and
SILVER, JJ.
OPINION
By the Court, STIGLICH, J.:
This appeal asks us to determine for the first time whether a
district court may award retroactive child support in a paternity action
initiated after the child reached the age of majority. We additionally
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consider the circumstances under which a parent's promise to support a
child is enforceable.
NRS 125B.030 provides that the physical custodial parent of a
child may recover from the parent without physical custody child support
for 4 years immediately preceding the filing of a support action. The statute
is silent on whether a parent can file for retroactive child support under
NRS 125B.030 for the first time after the child has reached the age of
majority. We answer that one may, holding that the 3-year statute of
limitations to bring a paternity action after the child reaches the age of
majority applies to a parent's request for retroactive child support.
Accordingly, we reverse in part the district court's order and remand for
further proceedings. We also determine that a promise in writing to support
a child is enforceable under NRS 126.900(1) when the writing sets forth a
clear commitment to provide support in specific terms. As the district court
correctly determined that no written promise was made here, we affirm as
to the district court's denial of child support under NRS 126.900(1).
FACTS AND PROCEDURAL HISTORY
Appellant Lillian Hargrove and respondent Thomas Ward were
never married but had one child together as a result of their relationship.
The parties son, G.W., was born on December 3, 1999. Paternity is not
disputed by the parties, and Ward is named as the father on G.W.'s birth
certificate. The parties never obtained a formal custody or child support
order during G.W.'s minority. After Hargrove and G.W. moved to Las Vegas
in 2009 and Ward remained in the Lake Tahoe area, Ward had only minimal
involvement in G.W.'s life. Hargrove alleged that the parties agreed at that
time that instead of Ward paying child support, he would visit G.W. and
remain actively involved in G.W.'s life. Hargrove alleged that in April 2012
the parties verbally agreed that Ward would deposit $400 per month into
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Hargrove's bank account for the support of G.W. Ward disputes that the
parties ever agreed to do so.
On March 12, 2019, 1 year and 3 months after G.W. turned 18,
Hargrove filed a paternity action against Ward in order to seek back child
support. Hargrove asked the district court to recognize the parties'
agreement for $400 a month under NRS 126.900(1). Alternatively,
Hargrove argued that even without an agreement, under NRS 125B.030,
she was entitled to retroactive child support. The district court concluded
that it did not have the legal authority to grant post-emancipation child
support. Hargrove subsequently appealed.
DISCUSSION
Ward did not make an enforceable promise under NRS 126.900(1)
We first consider Hargroves argument that she had an
enforceable agreement with Ward for a monthly support payment under
NRS 126.900(1).1 Hargrove argues that Ward agreed to pay her child
support of $400 monthly beginning in 2012.
This court reviews a district court's order regarding a child
support determination for an abuse of discretion. Miller v. Miller, 134 Nev.
120, 125, 412 P.3d 1081, 1085 (2018). "Questions of statutory construction,
including the meaning and scope of a statute, are questions of law, which
we review de novo." Id. at 122, 412 P.3d at 1083 (alterations and internal
quotation marks omitted). This court will defer to and uphold the district
court's findings that are not clearly erroneous and are supported by
substantial evidence. Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699,
704 (2009).
1 NRS 126.900 was substituted in revision for NRS 126.371 in 2013.
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NRS 126.900(1) provides that "[a]ny promise in writing to
furnish support for a child, growing out of a supposed or alleged parent and
child relationship, does not require consideration and is enforceable
according to its terms." The construction of this statute is a matter of first
impression. When a statutes language is unambiguous and its meaning is
clear, interpreting courts may not look beyond the statute itself. State, Div.
of Ins. v. State Farm Mut. Auto. Ins. Co., 116 Nev. 290, 293, 995 P.2d 482,
485 (2000). If a statute is ambiguous, however, courts may consider "other
sources such as legislative history, legislative intent and analogous
statutory provisions." Id. at 294, 995 P.2d at 485.
Specifically at issue here is the meaning of "promise in writing."
We conclude that this phrase is unambiguous as used in the statute. A
"promise" states an intent to act in a particular manner and a willingness
to be bound to do so. Promise, Black's Law Dictionary (11th ed. 2019)
(defining promise as "Mlle manifestation of an intention to act or refrain
from acting in a specified manner, conveyed in such a way that another is
justified in understanding that a commitment has been made; a person's
assurance that the person will or will not do something"). And a "writing"
is a tangible recording of an expressed statement. Writing, Black's Law
Dictionary (11th ed. 2019) ("Any intentional recording of words in a visual
form, whether in handwriting, printing, typewriting, or any other tangible
form that may be viewed or heard with or without mechanical aids.").
Hargrove argues that NRS 126.900(1) should be interpreted to
create a mechanism to enforce informal agreements. We disagree. Nothing
in the statute supports this interpretation. The statute specifically
forecloses a consideration requirement, NRS 126.900(1), and the
Legislature could have directed that informal commitments were
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enforceable under this statute had it intended to, see Ramacciotti v.
Ramacciotti, 106 Nev. 529, 531, 795 P.2d 988, 989 (1990) (concluding that
the Legislature did not intend a requirement that it could have included in
the relevant statute but did not). The statute also provides that a promise
within its ambit "is enforceable according to its terms," implying that such
a promise must specifically set out the terms committed to, rather than
encompassing informal agreements. See NRS 126.900(1). And the
legislative history further disfavors Hargroves claim, as the deputy
attorney general describing the bill explained that this statute serves to
make enforceable an agreement where a parent "will end up signing a
promise to support," with no discussion of more casual arrangements.
Hearing on S.B. 294 Before the Assemb. Judiciary Comm., 60th Leg., at 6
(Nev., May 2, 1979); see also 1979 Nev. Stat., ch. 599, § 24, at 1276-77
(enacting S.B. 294, later codified as NRS 126.900).
Hargrove argues that text messages over a period of 11 months,
banking records, and her testimony show Ward's promise in writing to make
monthly support payments.2 The district court found that Ward did not
undertake a legally binding obligation. Substantial evidence supports the
determination that Ward did not promise to make ongoing payments, which
is not clearly wrong. First, we observe that neither the banking records nor
Hargrove's testimony supports Hargroves claim, as neither demonstrates
Ward's expression of intent to act in a particular manner. While either may
be evidence of an agreement, neither shows a promise by Ward or a writing
memorializing it. And while a text message may constitute a "writing," the
2To the extent that Hargrove argues that she had an oral agreement
with Ward that was enforceable under NRS 126.900(1), the claim fails, as
the statute does not encompass any commitment not in writing.
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text messages between Hargrove and Ward in the record here do not
demonstrate a "promise to make ongoing support payments. In a May 15,
2013, message, Hargrove described "this offer": payment of $300 by the 4th
of each month. Ward never specifically responded to that "offer." The text
messages cannot be said to contain Ward's promise to act in accordance with
those terms.3 In other text messages, Ward did not state an intent to make
ongoing payments in such a manner that specific terms of that commitment
might be ascertained and enforced. In sum, the text messages in the record
do not show a tangible statement by Ward committing to act in the
particular manner that Hargrove alleges. And as no promise was
expressed, we need not consider the requirement that the promise relates
to a parental relationship. Cf. NRS 126.900(1) (requiring the promise to be
"growing out of a supposed or alleged parent and child relationship"). The
district court therefore did not abuse its discretion in denying Hargroves
NRS 126.900(1) claim, and we affirm its order denying relief in part.
NRS 125B.030 permits the recovery of retroactive child support after the
child reaches the age of majority
While Hargrove may not recover under NRS 126.900(1), we
hold that a parent may file for retroactive child support after a child has
3In an August 4, 2013, text message, Hargrove asked, "Are you going
to be able to deposit money tomorrow?" and Ward responded, "Yes." This
arguably constitutes a "promise in writing" under NRS 126.900(1), though
it does not indicate amount or show the more extensive promise Hargrove
alleges. It appears that Ward made a corresponding deposit to satisfy this
promise.
In two other messages, Ward commits to send money "as soon as i
[sic] can" or in "a bit." These commitments are too vague to fall within the
statutes scope because they lack terms specific enough to be "enforceable
according to [their] terms." NRS 126.900(1).
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reached the age of majority under NRS 12513.030. NRS 125B.030 provides
that,
[w]here the parents of a child do not reside
together, the physical custodian of the child may
recover from the parent without physical custody a
reasonable portion of the cost of care, support,
education and maintenance provided by the
physical custodian. In the absence of a court order
for the support of a child, the parent who has
physical custody may recover not more than 4
years support furnished before the bringing of the
action to establish an obligation for the support of
the child.
NRS 125B.030 does not limit when an action for support of the child may
be brought. Instead, the statute limits the recovery for retroactive child
support to the 4 years immediately preceding the action.
This is not to say, however, that there is no limit on when a
parent may bring an action for retroactive child support. NRS 126.081(1)
provides that an action to establish paternity "is not barred until 3 years
after the child reaches the age of majority." And NRS 126.161(4)(a) provides
that a judgment or order establishing paternity "may . . [c]ontain any
other provision directed against the appropriate party to the proceeding,
concerning the duty of support." (Emphasis added.) Thus, it appears that
NRS Chapter 126 contemplates the imposition of retroactive child support
obligations in paternity actions filed within 3 years after the child attains
the age of majority.
Other jurisdictions have established that retroactive child
support may be awarded in timely filed paternity actions. For example, in
Carnes v. Kemp, 821 N.E.2d 180, 182 (Ohio 2004), the issue was whether "a
court ha[s] subject-matter jurisdiction to award retroactive child support
payments in a paternity action initiated after the child has reached the age
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of majority." (Internal quotation marks omitted.) The Supreme Court of
Ohio concluded it does, reasoning that because an individual is statutorily
authorized, in Ohio, to bring a paternity action up to 5 years after the child
reaches the age of 18, and because a court has authority to order support
after paternity is established, a court has the authority to order retroactive
child support in an action commenced before the child turns 23. Id. at 184.
The New Mexico Court of Appeals held the same, reasoning that
"[i] t is not logical to apply a more lenient statute of limitations to a paternity
action but then apply a stricter limitations period to the child's cause of
action to seek support." Padilla v. Montano, 862 P.2d 1257, 1263 (N.M. Ct.
App. 1993). "A paternity proceeding is a civil action to compel a putative
father to support his child," and the purpose of the statute will not be met
if a "child is [not] afforded a reasonable length of time in which to secure
the support which is due [;] a determination of paternity [alone] is of limited
value." Id. at 1262-63; see also Campagna v. Cope, 971 So. 2d 243, 248 (Fla.
Dist. Ct. App. 2008) (declining to limit retroactive child support to actions
filed while the child is a minor because the plain language of the statute
does not contain such limiting language).4
4A1though some of these cases may be distinguishable in that a child
brings the action for child support instead of a parent, NRS 126.071(1)
provides that "[a] child, his or her natural mother, a man presumed or
alleged to be his or her father or an interested third party may bring an
action . . to declare the existence . . . of the father and child relationship."
See also Campagna, 971 So. 2d at 248 (concluding that if a parent supported
a child in his or her minority, "the parent maintains his or her standing to
recover the other parent's share of any" retroactive child support).
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We agree with this reasoning and hold that an action for
retroactive child support may be maintained after a child has reached the
age of majority. Thus, because a parent may bring a paternity action up to
3 years after the child reaches the age of majority, and because a court may
order a parent to pay child support after paternity is established, we hold
that a parent has 3 years after the age of majority to seek retroactive child
support.
CONCLUSION
Here, Hargrove brought the paternity action on March 12, 2019,
1 year and 3 months after G.W. turned 18, within the period permitted by
NRS 126.081(1). Thus, her request for retroactive child support was timely.
As Hargrove was permitted to bring a paternity action, she was
correspondingly permitted to seek retroactive child support. The district
court therefore abused its discretion by concluding that it did not have the
authority to grant retroactive child support.5 Ward, however, did
not make a promise in writing to make monthly support payments, and the
district court therefore correctly denied Hargroves NRS 126.900(1) claim.
5We reject Ward's numerous arguments in opposition. Although NRS
125B.050(1) uses the term "minor child," Ward does not cogently argue how
that term correlates to NRS 125B.030s language. See Edwards v.
Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38
(2006) (providing that this court need not consider claims that are not
cogently argued or supported by relevant authority). Further, although
NRS 126.161(3) requires the inclusion of child support in a paternity order
if the child is a minor, it does not provide that one is prohibited if the child
is not a minor. Instead, the broad language of NRS 126.161(4)(a) provides
that an order "may" include "any other provision . . . concerning the duty of
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Accordingly, we affirm in part, reverse in part, and remand for further
proceedings.
4/414au4 , J.
Stiglich
We concur:
p„
Parraguirre
J.
Silver
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