Rivero v. Rivero

Citations: 195 P.3d 328; 2008 WL 4774625Docket: 46915

Court: Nevada Supreme Court; October 30, 2008; Nevada; State Supreme Court

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Michelle Rivero and Elvis Rivero's divorce decree established joint physical custody of their minor child, with Ms. Rivero having custody five days a week and Mr. Rivero two days, and no child support was awarded. After the decree, Ms. Rivero sought to modify custody and support, but the district court upheld the original decree and mandated mediation for a timeshare plan. Ms. Rivero's requests for Judge Miley's recusal were denied, and her motion for disqualification was deemed frivolous by Chief Judge Hardcastle.

Post-mediation, the district court shifted custody from a five-two timeshare to an equal timeshare, leading to Ms. Rivero's appeal on several grounds: the definition of joint physical custody, the determination of joint custody, the modification of custody, denial of child support, and the handling of disqualification motions. 

The court defined joint physical custody as each parent spending significant time with the child, without a strict timeshare requirement. It found the district court abused its discretion by not providing specific factual findings to support its joint custody determination and by modifying the custody arrangement without establishing that the change was in the child's best interest. 

Regarding child support, the court emphasized that it must adhere to legislative objectives, requiring both parents to contribute support according to their incomes, even in joint custody situations. The court extended and modified the existing formula for calculating support in cases of unequal timeshare. Finally, it affirmed the decisions regarding Judge Miley’s recusal and Ms. Rivero's disqualification motion as proper.

Judge Miley exhibited no personal bias against either party in the custody dispute. The district court acted within its discretion by sanctioning Ms. Rivero with attorney fees due to her frivolous motion. The case began when Ms. Rivero filed for divorce, and the parties settled all issues except for physical custody and child support of their minor child. The divorce decree established joint physical custody, with Ms. Rivero having custody five days a week and Mr. Rivero two days, while their child support obligations were offset, resulting in no payments owed.

Approximately a year post-decree, Ms. Rivero sought primary custody and child support, claiming Mr. Rivero was not involved in the child's care, which was managed primarily by his elderly mother. She argued that she had de facto primary custody. During the custody hearing, both parties provided conflicting testimonies, but the district court determined an evidentiary hearing was unnecessary and recognized the existing joint custody arrangement. The court mandated family mediation to establish a timeshare plan.

Before mediation, Ms. Rivero subpoenaed Mr. Rivero's employment records, which he moved to quash. The district court granted this motion, affirming that, under the divorce decree, joint custody was in place, and child support was not an issue. When Ms. Rivero requested to reopen the child support discussion, the court declined, prompting her to seek Judge Miley's recusal, alleging bias based on the parties' appearances. Judge Miley denied the recusal request, affirming her impartiality in an affidavit. Chief Judge Hardcastle subsequently denied Ms. Rivero's motion to disqualify Judge Miley, stating it stemmed from dissatisfaction with prior rulings rather than valid grounds for disqualification.

At a later hearing, the district court awarded Mr. Rivero attorney fees, deeming Ms. Rivero's disqualification motion meritless, and reiterated its previous decision against an evidentiary hearing regarding custody, citing potential self-serving testimony.

The district court determined that Ms. Rivero did not have de facto primary physical custody, leading it to find that an evidentiary hearing was unnecessary since it was modifying a joint physical custody arrangement rather than changing primary custody to joint custody. Although the divorce decree allocated custody five days to Ms. Rivero and two days to Mr. Rivero, the court concluded that the parties intended for an equal timeshare. The court aimed to reconcile the divorce decree's provisions with the parties' actual intentions regarding custody. It found that the unequal five-day, two-day timeshare did not fulfill the definition of joint physical custody, prompting the court to order an equal timeshare. Ms. Rivero is appealing multiple orders, including the denial of her child support motion, the motion to disqualify Judge Miley, and the modification of the custody timeshare alongside attorney fees.

On appeal, Ms. Rivero and the Family Law Section seek clarification on the definition of joint physical custody, proposing the adoption of Missouri's statutory definition, which allows for significant but not necessarily equal time sharing between parents. Currently, Nevada lacks a defined standard for joint physical custody, complicating decisions related to custody arrangements and child support obligations. Previous case law suggests that joint custody may not always involve equal timeshares, recognizing both equal and unequal arrangements. The Missouri definition aligns with this understanding and is consistent with existing precedent while remaining free from legislative constraints, as Nevada law has not specified a requirement for equal timesharing in joint physical custody cases.

The Missouri definition of joint physical custody emphasizes "significant, but not necessarily equal" time spent with each parent, allowing flexibility for district courts and parents in custody arrangements. This definition aids in clarifying parental intentions regarding joint custody without requiring equal timeshares. Courts must evaluate if the time each parent spends with the child is significant, frequent, continuous, and meaningful. 

In the case at hand, Ms. Rivero contends that the district court incorrectly found joint physical custody and misinterpreted "joint physical custody" in the divorce decree as equal timeshare. The court holds discretion in custody decisions, but these must be backed by substantial evidence. The best interest of the child is the primary focus, requiring specific findings regarding parental care abilities and the parent-child relationship.

Custody modifications can occur upon motion from either party, necessitating specific factual findings that consider the child's physical, developmental, and emotional needs, as well as stability. Different standards apply for modifying joint custody versus primary custody, with joint modifications needing to align with the child's best interests.

The district court found an equal time-sharing arrangement between Mr. and Ms. Rivero, categorizing it as joint custody, which placed the burden on Ms. Rivero to prove that a modification was in the child's best interest. However, the court failed to provide factual findings to justify its determination of joint custody and modified the timeshare without adequately supporting its decision as being in the child's best interest. Consequently, the court's rulings on joint physical custody and equal timeshare were deemed an abuse of discretion due to the lack of substantial evidence.

The district court is required to assess the custodial arrangement based on the updated definition of joint physical custody and apply the appropriate test for modifying custody. Ms. Rivero's claim for child support was denied, which the court found to be erroneous. The court's child support decisions are reviewed for abuse of discretion, with custodial parents entitled to support per NRS Chapter 125B, regardless of divorce decree terms. If the district court deviates from the statutory child support amount, it must provide specific findings justifying the deviation and explain what the support would have been without it. In this case, the district court incorrectly relied on the divorce decree without considering Ms. Rivero's potential entitlement to support under NRS Chapter 125B. Therefore, it must evaluate her eligibility regardless of the decree's language.

For joint physical custody scenarios with unequal timeshares, the Wright v. Osburn formula is used to determine child support based on parents' gross incomes. The higher-income parent pays the difference in support amounts to the lower-income parent, while the court can adjust the amount using statutory factors. The Wright formula aims to equalize the child's living standards between parents and ensure consistency in rulings.

In cases of unequal timeshare, where one parent is primary and the other secondary, the court applies the statutory formula and makes necessary adjustments. However, Nevada law lacks clear guidance on calculating support in joint custody with unequal time. Thus, the modified Wright formula accounts for income disparities and time spent caring for the child. The first step involves calculating each parent's child support obligations under NRS 125B.070, including any necessary adjustments backed by specific findings.

The court must follow a structured process for calculating child support, which includes: (1) determining the percentage of time each parent spends with the child, (2) calculating the difference in time spent by each parent, (3) adjusting child support amounts based on this time difference, (4) transferring the adjusted support amount from the parent with more time to the one with less, (5) subtracting the smaller adjusted amount from the larger to establish the final payment, and (6) applying any statutory caps. This modified Wright formula addresses income disparities and time-sharing differences, ensuring the best interest of the child by equalizing the parents' living standards. In joint custody situations, expenses don't always correlate with time, necessitating caution when adjusting support amounts. 

In the appeal concerning Judge Miley's refusal to recuse herself, Ms. Rivero contends this decision constituted an abuse of discretion, claiming that the judge exhibited bias and was not impartial. The court emphasizes that a judge is presumed unbiased, and the burden lies on the party challenging the judge to provide sufficient grounds for disqualification. Allegations of bias must originate from an extrajudicial source and cannot solely rely on the judge's conduct within the case. Ms. Rivero's claims, lacking evidential support, do not meet the required legal standards for disqualification. Therefore, the court finds no abuse of discretion in Judge Miley's decision not to recuse herself or in Chief Judge Hardcastle's denial of Ms. Rivero's motion without further proceedings.

Ms. Rivero challenges the district court's decision to award attorney fees to Mr. Rivero, arguing that her motion for Judge Miley's disqualification was reasonable and protected under NRS 1.230, which prohibits contempt punishment for alleging a judge's disqualification. The court disagrees, affirming that the district court can award attorney fees as sanctions for frivolous claims under NRS 18.010(2)(b), NRCP 11, and EDCR 7.60(b). The court distinguishes between civil and criminal contempt, noting that attorney fees for frivolous motions do not equate to contempt. The court concludes that the district court acted within its discretion in awarding attorney fees to Mr. Rivero.

Additionally, the court finds that the district court abused its discretion regarding joint physical custody and child support modifications, as it failed to provide specific findings to justify these changes. The court reverses and remands for a new custody determination and child support calculations based on appropriate formulas. The court upholds the refusal of Judge Miley to recuse herself and affirms the attorney fee award related to Ms. Rivero's disqualification motion, emphasizing the meritlessness of her motion as noted during the hearing.

In Barbagallo v. Barbagallo, the Nevada Legislature, in 1987, chose not to define "primary physical custody" by a specific timeshare percentage, such as 40% or 146 days per year. The court recognizes various terms for arrangements where both parents have physical custody, including joint physical custody, shared custody, and equal physical custody. Different states have varying requirements for establishing joint or primary physical custody, with some mandating specific timeshare thresholds—e.g., Oklahoma requires over 120 nights annually, Tennessee defines the primary residential parent as the one with custody over 50% of the time, and Utah stipulates that joint physical custody entails each parent having custody for over 30% of the year. Courts are encouraged to assess the true nature of custodial relationships without being confined by labels. This principle is supported by several Nevada statutes and case law, emphasizing the court's obligation to determine the actual dynamics of parental relationships.

The district court has the authority to order child support even if the recipient parent, who did not seek such support in her divorce complaint, expresses a desire against it. Relevant statutes include NRS 125B.0806 and case law such as Jackson v. Jackson and Parkinson v. Parkinson, which affirm that an obligor can present equitable defenses like estoppel and waiver in cases of child support enforcement or modification. Although Mr. Rivero did not specifically argue waiver, he claimed that Ms. Rivero agreed to forgo child support in their divorce decree. The decision in Wright v. Osburn reinforces the requirement for applying any caps after the Wright offset. The Barbagallo case highlights fixed expenses of the primary custodian, which may also be relevant for parents with joint physical custody. The court's remand for further findings on child custody and support indicates that issues related to Mr. Rivero's employment records and evidentiary hearings are not currently necessary to address.