Summary of Romano v. Romano Holding:
The Nevada Supreme Court clarified the standard to change custody in Nevada on January 13, 2022 in the case Romano v. Romano, 138 Nev. Adv. Op. 1,1 (Nev. 2022). In Romano, the Nevada Supreme Court held that “a court may modify a joint or primary physical custody arrangement only if (1) there has been a substantial change in circumstances affecting the welfare of the child and (2) the modification serves the best interest of the child.” Moreover, the Nevada Supreme Court further stated that “we overrule Rivero to the extent it indicates that a district court must first determine what type of physical custody arrangement exists before considering whether to modify that arrangement.” Id.
Prior to this case, in Joint Physical Custody cases, the court only reviewed the best interests of the child pursuant to NRS 125C.0035(4)(a-l). to change custody. It was only in cases where one parent had Primary Physical Custody and the other parent had Visitation, did the court have to find that (1) there has been a substantial change of circumstances affecting the welfare of the child and (2) the modification serves the best interests of the child, pursuant to Ellis v. Carucci, 161 P.3d 239, 123 Nev. 18 (Nev. 2007).
In Romano, this was a consolidated appeal from the district court orders denying a motion to modify child custody and child support, and an award of attorney fees. The parties were divorced in 2019. The Divorce Decree incorporated a previous agreement relating to the custody, control, and care of their seven (7) minor children. In this agreement, the parties agreed to a complex timeshare arrangement regarding the physical custody of each child, by giving Aaron custody of the oldest 3 children approximately 90 percent of the time, and giving Tracy custody of the younger 4 children approximately 95 percent of the time. Even though the timeshare did not meet the at-least-40-percent-physical-custody standard for joint physical custody required by Rivero, the parties agreed to label their agreement joint physical custody of the children. The parties later stipulated to a Marital Settlement Agreement which provided terms for alimony, income, and child support. Pursuant to the Marital Settlement Agreement, Aaron owed Tracy $1,138 per month per child, which was the presumptive maximum at the time under the old child support statute NRS 125B.070 and NRS 125B.080, for the 4 younger children, and $569 per month for one of the older children. The Marital Settlement Agreement also provided that if the Parties returned to Court, the prevailing party was entitled to their attorney fees and costs.
Less than a year later, Aaron filed a Motion to Confirm De Facto Physical Custody Arrangement of Children, requesting that the district court confirm that he had Primary Physical Custody of the 3 older children and to modify the child support obligation due to the actual custody timeshare and due to an increase in Tracy's monthly income. Tracy opposed the motion and argued that their global settlement did not warrant modification in that there were no changed circumstances since they entered into that agreement. Additionally, she argued that her increase in income came from alimony and interest on a promissory note paid by Aaron, both part of the parties' global settlement agreement, such that there was no change in circumstances. The district court denied Aaron's motion, concluding that there was no change in circumstances that warranted modifying custody, and that Tracy's income had not changed. The district court also awarded Tracy attorney's fees and costs pursuant to the MSA and NRS 18.010(2)(b) as the prevailing party. Aaron appealed.
On appeal, the Nevada Supreme Court held that the district court did not abuse its discretion when it denied Aaron's motion to modify custody based on the De Facto Physical custody Arrangement of the Children.
The Nevada Supreme Court clarified the Rivero tests based on the nature of the custody arrangement before any modification and held that, regardless of whether a movant requests to modify joint custody or primary physical custody, the test to evaluate such a motion is the same -- the movant must show that (1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child's best interest is served by the modification. The Nevada Supreme Court also overruled Rivero to the extent it indicates that a district court must first determine what type of physical custody arrangement exists before considering whether to modify that arrangement.
The Nevada Supreme Court also held that the district court did not abuse its discretion when it denied Aaron's motion to modify his child support obligation. Although Rivero and Burton provide that a district court typically may modify a support order when there is a legal change in circumstances, here NAC 425.170(3) carves out a minor exception to that general rule. As such, the newly enacted child support regulation (NAC 425), alone, is not a change in circumstances warranting modification of a child support obligation.
Lastly, the Court held that the district court did not abuse its discretion by awarding Tracy attorney's fees and costs because the district court properly denied Aaron's motion, making Tracy the prevailing party.
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