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Nance v. Ferraro

Supreme Court of Nevada

April 5, 2018

SANDRA LYNN NANCE, Appellant,
v.
CHRISTOPHER MICHAEL FERRARO, Respondent.

          Appeal from a district court order granting a motion to modify child custody and relocate a minor child. Eighth Judicial District Court, Family Court Division, Clark County; Denise L. Gentile, Judge.

          McFarling Law Group and Emily McFarling, Las Vegas, for Appellant.

          Hutchison & Steffen, LLC, and Michael K. Wall and Shannon R. Wilson, Las Vegas, for Respondent.

          BEFORE SILVER, C.J., TAO and GIBBONS, JJ.

          OPINION

          SILVER, C.J.

         In this appeal, we consider whether the district court in a custody modification and child relocation action properly granted a motion in limine to exclude, among other things, evidence of domestic violence under McMonigle v. McMonigle, 110 Nev. 1407, 887 P.2d 742 (1994), and Castle v. Simmons, 120 Nev. 98, 86 P.3d 1042 (2004).[1] Respondent Christopher Ferraro moved to modify custody and relocate the parties' minor child, and when appellant Sandra Nance opposed the motion, Christopher filed a motion in limine to exclude facts that occurred before the prior custody order was entered. The district court granted the motion in limine under McMonigle and Castle, and thereafter determined the parties had been exercising joint physical custody and granted Christopher's motion.

         To succeed on a motion to modify custody, a party in a joint physical custody arrangement must show that modification is in the child's best interest; but if the opposing party has primary physical custody of the child, the movant must show there has been a substantial change in circumstances affecting the welfare of the child and that modification is in the child's best interest. Rivero v. Rivero, 125 Nev. 410, 430, 216 P.3d 213, 227 (2009). Read together, McMonigle and Castle hold that a party seeking to modify primary physical custody may not use evidence of domestic violence known to the parties or the court when the prior custody order was entered to show a substantial change in circumstances warranting modification. McMonigle, 110 Nev. at 1408, 887 P.2d at 743; Castle, 120 Nev. at 105, 86 P.3d at 1047. Because questions regarding the scope and application of McMonigle and Castle continue to come before this court, we take this opportunity to clarify the law.

         The threshold issue for this court is whether McMonigle and Castle also prevent parties from relying on previously known domestic violence evidence to demonstrate modification is not in the child's best interest. We thereafter consider whether the district court abused its discretion by determining the parties shared joint physical custody and granting Christopher's motion to modify custody and relocate the child. We conclude McMonigle and Castle do not bar the district court from reviewing the facts and evidence underpinning its prior rulings or custody determinations in deciding whether the modification of a prior custody order is in the child's best interest. These decisions likewise do not prohibit parties from presenting previously known domestic violence evidence defensively to show modification is not in the child's best interest. As a result, we conclude the district court abused its discretion by granting the motion in limine. We further conclude the district court abused its discretion by thereafter determining the parties shared joint physical custody and granting Christopher's motion to modify custody and relocate the minor child without considering the domestic violence evidence in determining the child's best interest.

         FACTS AND PROCEDURAL HISTORY

         Sandra Nance and Christopher Ferraro have one minor child, born in 2008. Sandra currently resides in Las Vegas, and Christopher resides in New York. The parties' relationship has long been tumultuous, particularly regarding custody and whether the minor child should reside in Nevada or New York. As relevant to this appeal, prior to the parties' divorce, Sandra alleged that Christopher committed acts of domestic violence and child abuse against her and one of her other children. Child Protective Services (CPS) investigated these allegations, and Sandra represented to the district court that CPS substantiated some of her claims. Then, in the spring of 2011, the parties stipulated to joint legal custody of the minor child, with Sandra being the primary residential parent and Christopher having parenting time. At the time of that stipulation, the parties were still contemplating reconciliation.

         The parties' relationship continued to deteriorate, however, and as a result of their ongoing co-parenting problems, the district court ordered the parties to undergo a custody evaluation in November 2011. The following March, the district court thereafter considered and adopted the recommendations in that evaluation and ordered Christopher to temporarily exercise his parenting time with the minor child in Nevada while Sandra and Christopher worked with a parenting coordinator and completed extensive parenting classes. In November 2012, the parties entered into a stipulated parenting plan, which the district court confirmed, and in which both agreed to share what they termed joint legal and physical custody. The court ordered that Nevada was the child's home state within the terms of the Uniform Child Custody Jurisdiction and Enforcement Act. See NRS 125A.005-.585. Thereafter, the child resided with Sandra in Nevada, subject to Christopher exercising parenting time in New York.

         In 2015, shortly before the child entered the first grade, Christopher moved the district court to modify the November 2012 order and sought primary physical custody, including permission to relocate the child to New York. Sandra opposed Christopher's motion, arguing she had primary physical custody of the child and Christopher had not shown a substantial change in circumstances since November 2012. She further argued that Christopher had not demonstrated relocation was warranted under Nevada law. Sandra pointed to the domestic violence presumption and the child's best interest, referencing the custody evaluation and evidence of Christopher's domestic violence. Christopher then filed a motion in limine seeking to bar all evidence "relative to the facts and circumstances existing between the parties prior to the [November 2012] custody order." Christopher argued Sandra's evidence was outdated and barred by McMonigle, Castle, and the rules of evidence. Sandra opposed Christopher's blanket motion in limine, specifically arguing that the prior custody evaluation and evidence of Christopher's domestic violence and child abuse, including CPS reports and eyewitness testimony, was both relevant and not barred by McMonigle or Castle.

         The district court granted Christopher's motion in limine, first citing McMonigle, According to the district court minutes, the court barred evidence of the domestic violence allegations "unless [the allegation] was unknown to Plaintiff... or unknown to the Court at the time of the last order, as prescribed by Castle v. Simmons" The district court advised that, if Sandra attempted to raise domestic violence evidence, Christopher would bear the burden of proving that the parties or the court previously considered that evidence.

         Following an evidentiary hearing, the district court granted Christopher's motion to modify joint custody in favor of primary physical custody and granted his motion to relocate the child to New York. In so doing, the district court concluded that, as a matter of law, the parties had been exercising joint physical custody over the child and made detailed findings regarding the child's best interest. The district court separately concluded that even if Sandra had been exercising primary physical custody, changed circumstances and the best interest considerations still supported modifying custody.[2] This appeal followed.

         ANALYSIS

         On appeal, the parties ultimately contest whether the district court properly granted Christopher's motion to relocate the minor child. At a fundamental level, however, the parties disagree about the nature of their custody arrangement at the time Christopher brought his motion and whether the district court properly granted the motion in limine excluding Sandra's evidence of domestic violence, [3] These issues are interrelated, as the district court must consider evidence relevant to the child's best interest when determining what custody arrangement is actually in effect and whether modification of that arrangement is warranted. See Bluestein v. Bluestein,131 Nev. 106, 109, 345 P.3d 1044, 1046 (2015). We therefore begin our analysis by addressing the motion in limine ...


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