Opinion
87208-COA
04-12-2024
LAUREN WOOTEN, Appellant, v. TAYLOR WOOTEN, Respondent.
UNPUBLISHED OPINION
ORDER OF AFFIRMANCE
Gibbons C.J.
Lauren Wooten appeals from a final district court order in a family law matter. Eighth Judicial District Court, Family Division, Clark County; Dedree Butler, Judge.
Lauren and respondent Taylor Wooten were married and share one minor child in common. On December 31, 2020, Taylor filed a complaint for divorce. In his complaint, Taylor requested joint legal and primary physical custody of the child. Taylor also filed his proof of service, indicating he served Lauren with a copy of the summons and complaint by presenting those documents to an individual at Lauren's Florida residence. Lauren did not file a responsive pleading, and Taylor subsequently sought summary disposition of his complaint for divorce. The district court later entered a decree of divorce, awarding the parties joint legal custody of the child and awarding Taylor primary physical custody of the child.
Lauren thereafter filed a motion to set aside the decree of divorce, contending she had not received proper service of process because the summons and complaint had been delivered to a previous residence. In her motion, Lauren also requested primary physical custody of the child, an award of child support, and stated that the child had resided with her in Florida since 2019. Taylor opposed the motion, asserting that the summons and complaint were delivered to Lauren's residence and left with her uncle. Taylor also disputed Lauren's assertion that the child had resided with her in Florida since 2019, stating the child resided in Nevada when he filed the complaint, and contended that the child traveled often between Nevada and Florida. The district court ultimately decided to amend the divorce decree to permit the parties to remain divorced but to litigate the disputed issues on the merits.
At the next hearing, Lauren informed the district court that she filed a request for custody in Florida and contended that the child's home state was Florida. The court thereafter continued the proceedings to ascertain the appropriate jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) for the child custody determination.
The district court subsequently conducted a UCCJEA conference with the Florida judge assigned to the matter in that state. At that hearing, the parties testified that the child traveled between Florida and Nevada during 2020 and they acknowledged that the child was staying with Taylor when the complaint for divorce was filed. The Florida judge subsequently concluded that the child did not have a home state during 2020 because he had not resided in either Florida or Nevada for the six-month period before Taylor filed the complaint and, because the complaint in Nevada was filed first. Nevada was a more appropriate jurisdiction for the custody proceedings. Therefore, the Florida judge announced that Florida declined to exercise jurisdiction in this matter. The district court accordingly concluded that the information provided at the hearing established that Nevada had jurisdiction over the parties' custody dispute.
Taylor subsequently filed a financial disclosure form in which he declared that he earned $4,666.67 per month. Lauren also filed a financial disclosure form in which she declared that she was unemployed and attending school. The court also set an evidentiary hearing to resolve the child custody issues and entered a case management order, directing the parties to disclose exhibits and witnesses in a timely manner and to participate in discovery pursuant to the Nevada Rules of Civil Procedure.
This matter subsequently proceeded to an evidentiary hearing concerning the custody matters and both parents testified. Taylor testified that, following the breakdown of the parties' relationship, Lauren moved with the child to Florida without his consent and without notifying him of her intention to do so. Taylor also stated that he and Lauren are generally able to reach agreements concerning the child's care, but explained that Lauren often blocks him from contacting her on her cell phone. Taylor stated that he attempted to communicate with Lauren concerning medical insurance for the child, but his efforts were not reciprocated. And Taylor explained that he is often unable to communicate with the child when Lauren has blocked him and the child is staying with Lauren. Taylor also testified concerning his relationship with the child and his wish for the child to reside with him in Nevada. In addition, Taylor explained that, following Lauren's move to Florida, he co-signed a lease with her to ensure that the child had a residence. Taylor also acknowledged that he had misled Lauren concerning the status of their relationship together, but stated that he did so to ensure that he would continue to have access to the child and he could keep lines of communication with Lauren open. Finally, Taylor stated he ensures that the child wears his prescription eyeglasses, while Lauren does not.
Lauren acknowledged that she blocked Taylor's ability to contact her on her cell phone. She also acknowledged that she moved with the child to Florida without first seeking Taylor's permission to relocate. Lauren expressed her desire for the child to reside in Florida with her and stated her belief that the child did not need to wear his prescription eyeglasses all the time. Lauren further testified that she had recently been hired as an accounting assistant and earned $21 per hour. In addition, both parties testified concerning the child's education and their efforts to help the child further his education.
During the evidentiary hearing, Lauren attempted to admit into evidence several exhibits concerning the parties' communications about the divorce proceedings and child custody matters. Taylor objected to the admission of those exhibits because they had not been timely disclosed and Taylor had not had the opportunity to review them. The district court declined to admit the exhibits into evidence, but permitted Lauren to discuss several of Taylor's text messages that were included in those materials concerning his relationship with Lauren and his new spouse so that it could assess the credibility of the parties.
The district court ultimately entered an amended divorce decree that included distribution of the parties' community property. The district court also awarded the parties joint legal custody but provided that Taylor had final decision-making authority concerning the child's important educational issues or urgent medical decisions if, after extensive discussions evidenced in writing, the parties cannot agree and a decision must be made to avoid unnecessary delays.
The court also awarded Taylor primary physical custody of the child. In its order, the court expressly considered the required factors under NRS 125C.0035(4) concerning the best interest of the child. In addition, the court entered a visitation schedule providing times for the child to travel to Florida for Lauren's parenting time.
The district court also considered child support and found that Taylor was entitled to a child support award as the party with primary physical custody of the child. See NAC 425.115(2). The court noted that, pursuant to NAC 425.150, it was required to consider the specific needs of the child and the economic circumstances of the parties, and accordingly, it needed to consider the travel and transportation costs associated with the child's travel to Florida for Lauren's parenting time. However, the court explained that a comparison of the parties' income was difficult as Lauren testified she had recently secured employment but she had not filed an updated financial disclosure form. Considering the available information concerning the parties' incomes and the transportation expenses related to the child's travel to Florida, the court found that a downward adjustment to the set amount of child support was appropriate and therefore awarded Taylor $300 per month in child support. The court also ordered the parties to equally divide any costs associated with the child's extracurricular activities. The district court also rejected the parties' requests for an award of attorney fees.
Lauren thereafter filed a motion for reconsideration of the district court's child custody and support decisions. In her motion, Lauren requested an award of child support arrears in the amount of $41,088.70 and attorney fees. Lauren also filed an updated financial disclosure form. The district court thereafter entered a written order denying Lauren's motion to reconsider, concluding that its previous decisions were not clearly erroneous and Lauren failed to raise new issues of fact or law. The court also noted that, based on Lauren's financial disclosure form, her set amount of monthly child support would be $582.40, but given the parties' incomes and the transportation costs between Nevada and Florida, Lauren was entitled to a downward adjustment pursuant to NAC 425.150. The court therefore maintained the support award of $300 per month. The court also rejected Lauren's request for an award of child support arrears and her request for attorney fees. This appeal followed.
First, Lauren argues the district court erred by failing to dismiss the complaint because Taylor failed to effectuate service of process. An objection to personal jurisdiction, process, or service of process is waived if it is not raised as a defense in an answer or pre-answer motion pursuant NRCP 12. Hansen v. Eighth Jud. Dist. Ct., 116 Nev. 650, 656-57 & n.4, 6 P.3d 982, 986 & n.4 (2000); see also Dougan v. Gustaveson, 108 Nev. 517, 521 n.4, 835 P.2d 795, 798 n.4 (1992) ("If the defense of insufficient service of process is not raised according to NRCP 12(b), it is waived."), abrogated on other grounds by Arnold v. Kip, 123 Nev. 410, 415, 168 P.3d 1050, 1053 (2007), and Scrimer v. Eighth Jud. Dist. Ct., 116 Nev. 507, 514-15, 998 P.2d 1190, 1195(2000).
While Lauren contended, in her motion to set aside the default divorce decree, that she was not properly served with the summons and complaint, she did not seek dismissal of this matter on this basis. Instead, Lauren urged the district court to set aside the divorce decree to permit adjudication of the issues raised in Taylor's complaint on the merits, including issues related to child custody and child support. Because Lauren did not seek dismissal of this matter and instead sought adjudication of the issues on the merits, Lauren effectively consented to the district court's exercise of jurisdiction over her and waived her ability to seek dismissal based upon a failure to effectuate service of process. See Hansen, 116 Nev. at 656, 6 P.3d at 986 ("Objections to personal jurisdiction, process, or service of process are waived, however, if not made in a timely motion or not included in a responsive pleading such as an answer."). Because Lauren waived this issue, we do not consider it on appeal. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A point not urged in the trial court ... is deemed to have been waived and will not be considered on appeal.").
Second, Lauren argues that the district court lacked subject matter jurisdiction concerning the child custody matters because the child had permanently relocated to Florida and only visited Nevada on a temporary basis.
We review subject matter jurisdiction de novo. Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704 (2009). "The district court's factual findings, however, are given deference and will be upheld if not clearly erroneous and if supported by substantial evidence." Id. at 668, 221 P.3d at 704. The UCCJEA, which Nevada has codified as NRS Chapter 125A, exclusively governs subject matter jurisdiction over child custody issues. NRS 125A.305(2); Friedman v. Eighth Jud, Dist. Ct., 127 Nev. 842, 847, 264 P.3d 1161, 1165 (2011). Pursuant to NRS 125A.305(1)(b), Nevada courts have jurisdiction over a child custody determination if, among other things,
[a] court of another state does not have jurisdiction ... or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum pursuant to NRS 125A.365 or 125A.375 and: (1) The child and the child's parents, or the child and at least one parent or a person acting as a
parent, have a significant connection with this State other than mere physical presence; and (2) Substantial evidence is available in this State concerning the child's care, protection, training and personal relationships ....
The district court held a hearing with the Florida court to decide which state was the appropriate forum to adjudicate the custody issues in this matter. See NRS 125A.355(2) ("If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with the provisions of this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state."). At the relevant hearing, the parties explained that the child had traveled between Nevada and Florida frequently following the breakdown in the parties' relationship and Lauren's relocation to Florida. The parties also acknowledged that the child had resided in Florida from May 2020 to September 2020, but came to Nevada in September 2020 and resided with Taylor in Nevada until February 2021.
As previously explained, both courts decided that the child had not resided in either state for six months before the commencement of this case on December 31, 2020. But both courts also recognized that the child had resided in Nevada for approximately four months prior to the commencement of this case and that the child resided in Nevada when the j case was filed. And both courts recognized that Nevada was the more appropriate forum because this case had been filed first and there had already been a custody order filed in the Nevada case. The Florida court accordingly declined to exercise jurisdiction on the grounds that Nevada was the more appropriate forum. The Nevada court therefore had subject matter jurisdiction pursuant to NRS 125A.305(1)(b).
The district court's factual findings concerning this issue are supported by substantial evidence. See Ogawa, 125 Nev. at 668, 221 P.3d at 704. And because the Florida court declined to exercise jurisdiction on the grounds that Nevada was the more appropriate forum in light of the facts concerning the child's time in Nevada and the ongoing Nevada custody case, we conclude that the district court had subject matter jurisdiction concerning the child's custody. See NRS 125A.305(1)(b); Ogawa, 125 Nev. at 667, 221 P.3d at 704. Accordingly, Lauren is not entitled to relief based on this claim.
Third, Lauren argues that the district court abused its discretion by awarding Taylor primary physical custody of the parties' child because its findings were not supported by the evidence and its analysis of the best-interest factors was flawed. Lauren contends the court failed to properly consider her efforts to care for the child, improperly found she interfered with Taylor's parenting time and relationship with the child, and discounted any communication problems caused by Taylor. Lauren also asserts that the district court abused its discretion by declining to consider various exhibits Lauren attempted to present at the evidentiary hearing.
This court reviews a child custody decision for an abuse of discretion. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). A court abuses its discretion if "no reasonable judge could reach a similar conclusion under the same circumstances." Leavitt v. Stems, 130 Nev. 503, 509, 330 P.3d 1, 5 (2014). In reviewing child custody determinations, this court will affirm the district court's factual findings if they are supported by substantial evidence. Ellis, 123 Nev. at 149, 161 P,3d at 242 . When making a custody determination, the sole consideration is the best interest of the child. NRS 125C.0035(1); Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015). A court may award one parent primary physical custody if it determines that joint physical custody is not in the best interest of the child. NRS 125C.003(1). This court is not at liberty to reweigh the evidence or the district court's credibility determinations on appeal, see Ellis, 123 Nev. at 152, 161 P.3d at 244 (refusing to reweigh credibility determinations on appeal); Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000) (refusing to reweigh evidence on appeal), and this court presumes that the district court properly exercised its discretion in determining the best interest of the child if it made substantial factual findings, see Culbertson v. Culbertson, 91 Nev. 230, 233-34, 533 P.2d 768, 770 (1975).
As previously explained, the district court heard the testimony of both parties concerning the child custody issues. Lauren attempted to present exhibits concerning her communications with Taylor, but the district court concluded that she failed to timely disclose those exhibits, and thus, she was not able to admit them into evidence. However, the court permitted Lauren to utilize some of Taylor's text messages that had been included in these materials so that it could assess his credibility concerning his testimony about his communications with Lauren and his relationship with the child. In light of Lauren's failure to timely disclose the exhibits, we conclude the district court did not abuse its discretion by declining to admit the exhibits into evidence. See Abid v. Abid, 133 Nev. 770, 772, 406 P.3d 476, 478 (2017) (explaining that this court reviews evidentiary decisions for an abuse of discretion); see also NRCP 37(c)(1) (stating that if a party fails to disclose evidence, "the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless").
Moreover, in its written order the district court expressly considered Lauren's testimony concerning her care of the child and noted that both parties at times caused communication difficulties. The court also evaluated the required best interest factors from NRS 125C.0035(4) and found that several factors favored awarding Taylor primary physical custody. In particular, the court focused on which parent was more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent. See NRS 125C.0035(4)(c). The court found that Taylor testified credibly that Lauren relocated with the child to Florida without notice or his consent for the child to relocate to that state. The court also noted that Lauren withheld the child during the holiday season, frustrating Taylor's parenting time with the child. In addition, the court noted both parties accused each other of destructive behavior during the breakdown of their romantic relationship but it found that Taylor demonstrated that he was most likely to allow Lauren to have frequent associations with the child if he was awarded primary physical custody. Accordingly, the court found that this factor weighed heavily in Taylor's favor.
The district court also found that Taylor was better able to cooperate with Lauren to meet the needs of the child and to provide for the child's physical, developmental, and emotional needs, as the testimony of the parties demonstrated Lauren was more focused on the breakdown of her relationship with Taylor, while Taylor was more focused on the child's needs. See NRS 125C.0035(4)(g). The court further found that Taylor was better able to care for the child's needs as he ensures the child wears his prescription eyeglasses and he has a more stable lifestyle than Lauren. Finally, the court again emphasized that Lauren had improperly relocated to Florida with the child without Taylor's consent and withheld the child from Taylor on several occasions. See NRS 125C.0035(4)(1). The district court ultimately decided, based on the circumstances at issue in this matter, that the child's best interest favored awarding Taylor primary physical custody, which required the child to reside in Nevada.
The district court's factual findings made in support of these determinations are supported by substantial evidence in the record, see Ellis, 123 Nev. at 149, 161 P.3d at 242, and this court will not second guess a district court's resolution of factual issues involving conflicting evidence or reconsider its credibility findings, see id. at 152, 161 P.3d at 244; Quintero, 116 Nev. at 1183, 14 P.3d at 523. Accordingly, we discern no abuse of discretion by the district court in awarding Taylor primary physical custody of the child. See Ellis, 123 Nev. at 149, 161 P.3d at 241.
Fourth, Lauren argues the district court abused its discretion by awarding Taylor final decision-making authority concerning important educational or urgent medical decisions. This court reviews district court decisions concerning child custody, including decisions concerning legal custody, for an abuse of discretion. Ellis, 123 Nev. at 149, 161 P.3d at 241; Kelley v. Kelley, 139 Nev., Adv. Op. 39, 535 P.3d 1147, 1153 (2023) (recognizing that district courts have discretion when making decisions concerning legal custody). "[T]he parents need not have equal decisionmaking power in a joint legal custody situation" and "one parent may have decisionmaking authority regarding certain areas or activities of the child's life, such as education or healthcare." See Rivero v. Rivero, 125 Nev. 410, 421, 216 P.3d 213, 221 (2009), overruled on other grounds by Romano v. Romano, 138 Nev. 1, 6, 501 P.3d 980, 984 (2022), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op. 43, 535 P.3dll67, 1171(2023).
Here, the district court considered and evaluated the testimony of the parties concerning the care of the child, which included testimony concerning the parties' actions and decisions related to the child's educational and medical needs, including the child's use of prescription eyeglasses. In consideration of that information, the court awarded the parties joint legal custody, but Taylor final decision-making authority concerning important educational or urgent medical decisions when the parties cannot agree on such issues. In light of the aforementioned circumstances, we discern no abuse of discretion by the court in doing so. See id. Therefore, we conclude that Lauren is not entitled to relief based on this claim.
Fifth, Lauren challenges the district court determination regarding child support, including its decisions as to costs associated with transportation and extracurricular activities. Lauren contends the court's child support award was improper because Taylor did not request a child support award and it did not consider Lauren's true financial circumstances.
This court reviews child support orders for an abuse of discretion. Edgington v. Edgington, 119 Nev. 577, 588, 80 P.3d 1282, 1290 (2003). A district court abuses its discretion when its findings are not supported by substantial evidence, Miller v. Miller, 134 Nev. 120, 125, 412 P.3d 1081, 1085 (2018), which is evidence that a reasonable person may accept as adequate to sustain a judgment, Ellis, 123 Nev. at 149, 161 P.3d at 242. While our review is deferential, we do not defer "to legal error or to findings so conclusory they may mask legal error." Davis, 131 Nev. at 450, 352 P.3d at 1142 (internal citations omitted).
"The parents of a child . . . have a duty to provide the child necessary maintenance, health care, education and support." NRS 125B.020(1). "Where 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." NRS 125B.030. "If a party has primary physical custody of a child, he or she is deemed to be the obligee and the other party is deemed to be the obligor, and the child support obligation of the obligor must be determined." NAC 425.115(2).
A child support order "must be based on the obligor's earnings, income and other evidence of ability to pay" and there is a rebuttable presumption that the basic needs of the child are met by the support guidelines established by NAC Chapter 425. NAC 425.100(1), (2). If the district court decides to depart from the guidelines, it must set forth findings to support that decision. NAC 425.100(3). A district court may order a downward adjustment from the set amount at its discretion, and it may consider costs associated with transportation of the child for visitation and the relative incomes of the parties when weighing such an adjustment. NAC 425.150(1)(e), (f).
Here, Taylor requested an award of child support in his pretrial memorandum. In addition, because Taylor was awarded primary physical custody of the child, the district court was required pursuant to NAC 425.115(2) to determine Lauren's child support obligation. The district court also specifically considered Lauren's financial situation, the parties' incomes, and the transportation costs associated with ensuring Lauren receive parenting time with the child in Florida when it determined the child support award. See NAC 425.100(1), (2); NAC 425.150(1)(e), (f). In addition, the court appropriately considered the costs associated with the child's extracurricular activities in assessing the cost of care, support, and maintenance provided by the custodial parent. See NRS 125B.030. In consideration of the aforementioned factors, the court found Lauren was entitled to a downward adjustment from the set amount and accordingly adjusted the monthly obligation in Lauren's favor. Substantial evidence supports the district court's decision, and thus, we conclude the district court did not abuse its discretion in its child support award and its decisions concerning costs for transportation and extracurricular activities. See Edgington, 119 Nev. at 588, 80 P.3d at 1290.
Sixth, Lauren argues the district court abused its discretion by rejecting her request for $41,066.70 in child support arrears. Under NRS 125B.030, district courts have discretion to award child support arrears for the "reasonable portion of the cost of care, support, education and maintenance provided by the physical custodian." See NRS 125B.030 (stating "the physical custodian of the child may recover from the parent without physical custody'7 reasonable costs provided by the physical custodian); see also Ewing v. Fahey, 86 Nev. 604, 607, 472 P.2d 347, 349 (1970) (explaining that "'[m]ay' is of course generally permissive" when construing a statute). The court reviewed Lauren's request for child support arrears but rejected it because Taylor testified credibly that he provided financial support for the child, even after Lauren had relocated with the child to Florida. The court's findings are supported by substantial evidence, see Miller, 134 Nev. at 125, 412 P.3d at 1085, and this court is not at liberty to reweigh the evidence or reevaluate the district court's credibility determinations, see Ellis, 123 Nev. at 152, 161 P.3d at 244; Quintero, 116 Nev. at 1183, 14 P.3d at 523. Accordingly, we discern no abuse of discretion in the district court's decision to reject Lauren's request for child support arrears.
Seventh, Lauren argues the district court abused its discretion by denying her request for an award of attorney fees. Lauren contends she should have been awarded attorney fees pursuant to NRS 125C.0689 because Taylor acted in bad faith. Lauren also contends that she was entitled to an award of fees because she was the prevailing party.
This court reviews a district court's award of attorney fees for an abuse of discretion. Miller v. Wilfong, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005). An abuse of discretion occurs when the court's decision is not supported by substantial evidence. Otak Nev., LLC v. Eighth Jud. Dist. Ct., 129 Nev. 799, 805, 312 P.3d 491, 496 (2013). Pursuant to NRS 125C.0689, a district court may award attorney fees in a custodial proceeding pursuant to the Uniform Deployed Parents Custody and Visitation Act (UDPCVA) (codified at NRS 125C.0601 to 125C.0693) if it finds that a party proceeded in bad faith or intentionally failed to comply with the UDPCVA.
Here, this matter was not brought pursuant to the UDPCVA and neither party asserted that they were a deployed parent. Thus, NRS 125C.0689 has no applicability to this matter. Moreover, the district court specifically found that Taylor did not proceed in bad faith. Lauren was thus not entitled to an attorney fee award pursuant to NRS 125C.0689. Further, Lauren does not explain how she was entitled to fees as a prevailing party, and as noted above, the district court found Taylor did not proceed in bad faith. Thus, Lauren has not demonstrated she was entitled to fees as a prevailing party. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (providing that the appellate courts need not consider claims unsupported by cogent argument or relevant authority). The district court's decision to reject Lauren's request for fees for the reasons discussed above was supported by the record, and thus, she fails to demonstrate that the district court abused its discretion in this regard. See Miller, 121 Nev. at 622, 119 P.3d at 729.
Accordingly, based on the reasoning set forth above, we
ORDER the judgment of the district court AFFIRMED.
In his fast track response, Taylor states that an attorney that represented him before the district court has since accepted employment with the firm of Lauren's appellate counsel. To the extent Taylor seeks an order disqualifying Lauren's appellate counsel from participating in this matter, his request is not appropriately raised in his fast track response as Taylor may not seek motion relief through briefing. See NRAP 27(a)(1) (stating "[a]n application for an order or other relief is made by motion").
Bulla J. Westbrook J.
Hon. Dedree Butler, District Judge