MacK-manley v. Manley

Citation: 138 P.3d 525Docket: 39160, 42003

Court: Nevada Supreme Court; July 20, 2006; Nevada; State Supreme Court

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In the case of Colleen Mack-Manley v. Edward T. Manley, the Supreme Court of Nevada addressed whether a district court maintains jurisdiction to modify child custody arrangements while an appeal regarding the same custody issue is pending. The court ruled that once a notice of appeal is filed, jurisdiction shifts to the appellate court, which means the district court cannot consider matters under appeal. The appropriate course for addressing custody modifications during an appeal is to remand the case to the district court, as established in Huneycutt v. Huneycutt.

In this case, the district court mistakenly believed it retained jurisdiction and improperly ruled on a post-decree motion to modify custody. However, since the district court leaned towards granting the respondent's motion, the Supreme Court chose to affirm the post-decree order, including findings of contempt and attorney fees. 

The factual background reveals that Colleen and Edward Manley were married in 1995, had two children, and experienced domestic conflicts, including a battery charge against Edward. Following their separation and Colleen's divorce filing in 1999, a temporary custody order was implemented. Colleen denied Edward visitation on several occasions, alleging child abuse, which was not substantiated by authorities. During a four-day hearing for permanent custody, the court considered testimony from multiple witnesses and a psychologist’s evaluation, which recommended Edward receive sole custody. Although the court acknowledged Colleen's evidence of domestic violence, it ultimately determined that joint custody was in the children's best interests, given the lack of a history of abuse by Edward and the concern over the children's education under Colleen's care.

Under the divorce decree, the district court granted joint legal custody to both parties, with Terry receiving primary physical custody and Colleen allowed liberal visitation. The decree prohibited either party from actions that could alienate the children from the other parent. Colleen appealed the decree, which was docketed as No. 39160. While the appeal was pending, Colleen took one child to the emergency room for a bruised knee and made allegations of abuse against Terry, prompting a CPS investigation that temporarily removed the children from Terry's custody. The investigation ultimately dismissed the abuse claims. Terry subsequently sought to hold Colleen in contempt for violating the custody arrangement, requested sole legal and physical custody, and sought to limit Colleen’s visitation due to her ongoing allegations. Colleen countered with her own custody motion and both parties sought attorney fees.

During the period following the divorce decree, Colleen hired a private investigator to surveil the children. After Terry's contempt motion, Colleen made another abuse allegation, which was heard by a juvenile master who returned the children to Terry. The district court then conducted a hearing on both parties' motions, allowing Colleen to contact police or CPS at her own risk, but ruled that Terry's issues warranted a full evidentiary hearing. Testimony revealed that Colleen had made unfounded abuse allegations in bad faith, violating the divorce decree's anti-alienation provision. The court found Colleen in contempt, sentenced her to three days in jail (suspended for compliance), ruled that she violated EDCR 5.12 by hiring the investigator, and granted Terry sole custody along with attorney fees. Colleen appealed this post-decree order, docketed as No. 42003.

Regarding jurisdiction, the district court modified custody while Colleen's appeal was pending. Under NRS 125.510(1)(b), the district court can modify custody orders at any time, but this court has not clarified whether this statute allows for continuous jurisdiction during an appeal. Generally, a notice of appeal transfers jurisdiction from the district court to this court, which must be clearly defined.

The district court loses jurisdiction to modify issues under appeal but retains authority over collateral matters not affecting the appeal's merits. In child custody cases, the district court cannot rule on modifications while an appeal concerning custody is pending. Although NRS 125.510(1)(b) allows modifications "at any time," this is contingent on the district court having jurisdiction, which is absent when an appeal is active. The appropriate process for modifying custody during an appeal is a remand per Huneycutt v. Huneycutt, allowing the district court to first consider the motion. If inclined to modify, the district court would notify the appellate court, which could then remand the case for further consideration. If the appeal solely concerns custody, it may be dismissed upon remand. However, if other issues are involved, a limited remand could be ordered for the district court to resolve the custody motion within a specified timeframe, after which an aggrieved party can appeal. The district court may issue temporary emergency adjustments to custody even during an ongoing appeal. In this case, the district court incorrectly believed it could modify custody under NRS 125.510(1)(b) while the custody issues were on appeal. Even though it lacked jurisdiction for such a modification, the appellate court considered the post-decree order for judicial economy, resulting in the dismissal of the earlier appeal as moot. The district court has broad discretion in custody decisions, and modifications are evaluated using the Murphy v. Murphy two-part test.

Under the Murphy test, the court assesses whether the parents' situations have materially changed since the last custody order and if the child's welfare would significantly improve with a modification. In this case, Terry sought to change the custody arrangement and limit Colleen's visitation due to her renewed false allegations of child abuse and neglect against him. After an evidentiary hearing, the district court found sufficient evidence to award Terry sole legal custody and restrict Colleen's visitation, determining that Colleen had made repeated allegations of abuse and had taken a child to the hospital on three occasions. The court concluded that modifying Colleen's custody rights was in the children's best interests and acted within its discretion under the Murphy factors.

Regarding contempt, although the district court could not change the custody arrangement, it had the authority to address Terry's contempt motion, as it can enforce custody provisions while an appeal is pending. Colleen argued that the court erred by finding her in contempt, but the court's initial custody order was deemed clear regarding parental conduct, prohibiting actions that could alienate the children from either parent. The court determined Colleen acted in bad faith by making unsubstantiated allegations of abuse, as confirmed by investigations from CPS and the police, supporting its contempt ruling.

Concerning Eighth District Court Rule 5.12, which restricts unapproved examinations of children by professionals for trial purposes, Colleen contended she did not violate this rule by hiring private investigator Ms. Stephens. The court concluded that the investigative role is similar enough to that of a therapist that it falls under this rule. Thus, while investigators can work on custody cases without prior court approval, they need court permission to interview children. Colleen's argument that she hired Ms. Stephens solely for investigation purposes was undermined by her designation as a "court expert in child abuse and sex crimes investigations" and her testimony linking her work to allegations against Terry, which occurred during an ongoing appeal process.

The district court did not err in determining that Ms. Stephens' interviews, requested by Colleen, violated EDCR 5.12. The court ordered Colleen to pay Terry's attorney fees, which is permissible in post-divorce actions under its continuing jurisdiction. According to NRS 18.010(2)(b), attorney fees can be awarded to the prevailing party if the opposing party's claims lack reasonable grounds. The appellate court found the district court did not abuse its discretion in awarding fees, supported by the conclusion that Colleen's claims were without reasonable grounds.

In matters of child custody, the district court cannot modify custody while an appeal is pending; any necessary changes should follow a Huneycutt remand. However, to promote judicial efficiency, the appellate court reviewed and affirmed the district court's post-decree order modifying custody. Additionally, the court upheld the finding of contempt against Colleen and the associated attorney fees.

The district court's child custody decision was based on evidence of the parties' interactions, including Colleen's negative influence on the children regarding Terry, her interference with his visitation rights, and attempts to exclude him from their lives. Despite these concerns, the court determined that joint legal custody and Terry's primary physical custody, with Colleen granted liberal visitation, served the children's best interests. The court noted that allegations of abuse or neglect must demonstrate substantial changes since the last custody order, and prior events cannot be used to establish such changes.

The court will not review the child custody arrangement due to mootness but acknowledges that a district court can award primary physical custody to one parent if evidence suggests the other is disrupting the relationship with the children. Colleen appeals the decree, claiming the district court abused its discretion by not compelling Terry to provide tax returns for community property division. However, she clarifies that she is not contesting the division itself but rather the denial of her pretrial discovery request. Since she does not dispute the ultimate distribution, her argument regarding pretrial discovery is not addressed. The document references case law indicating that custody decisions must prioritize the child's best interest and notes that a lower court may enforce custody provisions during an appeal. Additionally, it affirms that while contempt orders are not independently appealable, they can be challenged in the context of a proper appeal. The district court retains the authority to award attorney fees in post-divorce custody proceedings.