Lewis v. Second Judicial District Court

930 P.2d 770, 113 Nev. 106, 1997 Nev. LEXIS 6

• Court: Nevada Supreme Court
• Decided: January 4, 1997
• Docket: 27119
• Status: Published

Opinions

OPINION

By the Court,

Young, J.:

FACTS

On April 6, 1988, petitioner Kelly Lynn Lewis (“Kelly”) and respondent Mark Quintín Lewis (“Mark”) were granted a decree of divorce, subsequently modified on August 8, 1988, by respondent Second Judicial District Court (“district court”). During the course of their eight-year marriage, Kelly and Mark produced three children, Jessica (DOB 2-21-82), Eric (DOB 7-14-84) and Kyle (DOB 8-11-85), who are the subject matter of these proceedings.

The April 6, 1988 divorce decree granted Kelly physical custody of the children, while the August 8, 1988 modification allowed Mark two months visitation during the summer and two weeks visitation during both Christmas and Easter. In October 1993, Mark filed a motion to modify custody in the district court.

On June 2, 1995, after appointing a licensed clinical social worker, Frank Hall (“Hall”), to thoroughly inquire into Kelly’s accusations of physical and sexual abuse by Mark toward his children, the district court orally ordered the enforcement of the April 6, 1988 divorce decree and the August 8, 1988 modification.

On June 13, 1995, before the district court filed its written order and findings regarding the June 2, 1995 hearing, Kelly filed an emergency petition for a writ of mandamus and prohibition with this court. The petition for a writ of mandamus urges this court to direct the district court to conduct a hearing or hearings regarding the visitation issues surrounding the children. The petition for a writ of prohibition endeavors to prevent the district court from enforcing its orally announced order of June 2, 1995.

On June 13, 1995, the same day Kelly filed her emergency petition, this court entered an order staying (1) any further proceedings in the district court; and (2) the district court’s orally pronounced order of June 2, 1995.

On June 19, 1995, the district court filed a written order enforcing the April 6, 1988 divorce decree and the August 8, 1988 modification, including Mark’s visitation rights with his children. The June 19, 1995 written order further stated that the district court had no current intention of changing child custody and that Kelly would be responsible for half the children’s transportation costs to Mark’s residence in Elko, Nevada. Additionally, despite our dissenting colleague’s unfounded assumptions, the June 19, 1995 order clearly mandated that Kelly and Mark comply with a reintroduction plan which was carefully crafted by the court-appointed social worker, Hall.¹

DISCUSSION

Jurisdiction of the district court

During the proceedings below and in her petition for an extraordinary writ, Kelly argued that the district court lacked subject matter jurisdiction over the proceedings. We have previously indicated that a determination of subject matter jurisdiction by the district court is a threshold requirement of the Uniform Child Custody Jurisdiction Act (“UCCJA”). Swan v. Swan, 106 Nev. 464, 469, 796 P.2d 221, 224 (1990). The Swan court further suggested that “subject matter jurisdiction can be raised by the parties at any time, or sua sponte by a court of review, and cannot be conferred by the parties.” Id.

Contrary to Kelly’s contention regarding the district court’s purported lack of subject matter jurisdiction, we conclude that the district court had jurisdiction over the motion to modify child custody in the case at bar.

In 1979, the Nevada Legislature adopted the UCCJA. NRS 125A.010. The UCCJA was “designed to bring some semblance of order into the existing chaos” of child custody jurisprudence. Prefatory Note to Unif. Child Custody Jurisdiction Act, 9 U.L. A. 118 (1979); see also NRS 125A.020 (indicating statutory purposes of Nevada’s version of the UCCJA). Also, recognizing that the person who has physical possession of the children had an enormous tactical advantage in child custody disputes, the UCCJA was meant “[t]o remedy the intolerable state of affairs where self-help and the rule of ‘seize-and-run’ prevail rather than the orderly processes of the law.” Prefatory Note to Unif. Child Custody Jurisdiction Act, 9 U.L.A. at 117.

Jurisdiction over child custody disputes in Nevada is governed by NRS 125A.050. In pertinent part, NRS 125A.050 provides that a court of this state has jurisdiction to make a child custody determination by initial or modifying decree if:

(b) It is in the best interests of the child that a court of this state assume jurisdiction because:

(1) The child and his parents, or the child and at least one contestant, have a significant connection with this state; and

(2) There is available in this state substantial evidence concerning the child’s present or future care, protection, training and personal relationships.

In Swan, we held that the Nevada district court did not have jurisdiction under NRS 125A.050(l)(b) to enter a divorce decree which granted the father custody of his children. Swan, 106 Nev. at 467, 796 P.2d at 223. However, the facts of the Swan case are dissimilar to the facts of the present case. In Swan, the father moved to Nevada in January 1987. Id. at 466, 796 P.2d at 222. Several months later, he removed the children from their home state of Utah and brought them to Nevada. Id. Less than forty days after he brought the children to Nevada, he filed a complaint for divorce and sought custody of the children. Id. The district court entered a divorce decree and granted custody of the children to the father. Id. The children’s mother filed a motion to vacate the child custody award because the district court lacked subject matter jurisdiction. Id.

After the mother’s motion to vacate the custody decree was denied by the district court, she appealed to this court, arguing that the district court erred when it refused to grant her motion to vacate. Id. We agreed, stating that “[rjesiding in Nevada for less than forty days can hardly constitute a significant connection.”² Id. at 467, 796 P.2d at 223. Accordingly, we ruled that the district court was not authorized to exercise its jurisdiction under the significant-connection provision of NRS 125A.050(1)(b). Id.

In the present case, the district court’s determination regarding jurisdiction is consistent with factually analogous decisions from other states which have interpreted the UCCJA. See In re Marriage of McEvoy, 414 N.W.2d 855 (Iowa Ct. App. 1987); Joseph E. H. v. Jane E. H., 423 A.2d 739 (Pa. Super. Ct. 1980) (remanded on other grounds). In McEvoy, the court stated that “[significant connection jurisdiction will continue in the decretal state where the court record and other evidence exists and where one parent continues to reside.” McEvoy, 414 N.W.2d at 857. In Joseph E. H., the court held that significant-connection jurisdiction had been established in Pennsylvania, notwithstanding the fact that the mother and child were residents of Maryland. Joseph E. H., 423 A.2d at 741. The Joseph E. H. court’s determination of significant connections with Pennsylvania was based upon the following: (1) the length of the parents’ and son’s previous residence in Pennsylvania; (2) the father’s continued residence in Pennsylvania; (3) the son was born in Pennsylvania and lived there until the mother moved with him to Maryland; (4) the parents had previously litigated the question of child custody in Pennsylvania; and (5) the parents were subject to an order of the Pennsylvania court concerning custody and visitation. Id.3

Similarly, in the present case, we conclude that the requirements for jurisdiction set forth in NRS 125A.050(l)(b) have been met for the following reasons: (1) Kelly, Mark and their children had previously resided in Nevada for several years prior to the divorce proceedings; (2) Mark has continuously resided in Nevada and plans to continue residing in this state with his current wife; (3) the children were born in Nevada and lived here for several years until Kelly moved them to several other states before eventually settling in California with her new husband; (4) Kelly and Mark have previously litigated the issue of child custody in the district court on several previous occasions and the entire court record concerning the children’s custody is located in Nevada; and (5) the parents are subject to an order of the district court concerning the custody and visitation of their children.

We further conclude that “[tjhere is available in this state substantial evidence concerning the child[ren] ’s present or future care, protection, training and personal relationships.” NRS 125A.050(l)(b)(2). It is inarguable that the district court has a keen understanding of the issues surrounding this child custody matter. The district court entered the initial divorce decree in addition to the modification of the initial divorce decree. Also, the district court heard numerous motions and contentions regarding the children’s custody resulting from Mark’s motion to modify the divorce decree. Consequently, because of the district court’s intimate familiarity with the child custody matter at issue, we conclude that the district court is in the best position to render a child custody determination that is in the best interests of the children. Additionally, we note that Hall, the court-appointed social worker, is present in this state. Hall conducted an extensive home study and evaluation of the parties involved in this case and submitted a report to the district court which included the reintroduction plan. To reiterate, in its June 19, 1995 order, the district court mandated that this reunification plan be followed to effectuate visitation between Mark and his children. Despite our dissenting colleague’s concern, we have every confidence that the district court will oversee the execution of this plan.

We do not dispute that the children have significant connections to the State of California because they have been residing in that state for the previous several years. Also, Kelly and several of her relatives reside in the State of California. Although the California courts are undoubtedly qualified to handle motions to modify child custody which were originally entered in another jurisdiction, based upon the facts of this case, we believe that the district court’s continuing jurisdiction over the present child custody matter will further the UCCJA’s goals.⁴

In sum, a conclusion that the district court lacked subject matter jurisdiction to entertain Mark’s motion to modify child custody will contradict the letter and spirit of the UCCJA, further delay the children’s reunification with their natural father and result in an unnecessary waste of scarce judicial resources. We cannot subscribe to this notion.

Petition for writ of mandamus

A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office, trust or station, NRS 34.160, or to control an arbitrary or capricious exercise of discretion. See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). We conclude that the district court did not act arbitrarily or capriciously during the course of the June 2, 1995 hearing. See NRS 125A.310. Accordingly, we perceive no compelling reason for granting Kelly’s petition for a writ of mandamus. See Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982).

Petition for writ of prohibition

A writ of prohibition may issue to arrest the proceedings of a district court exercising its judicial functions when such proceedings are in excess of the jurisdiction of the district court. NRS 34.320. We conclude that the district court’s June 2, 1995 oral order was not outside the district court’s authority and did not transcend the limits of its jurisdiction. Instead, we conclude that the district court’s June 2, 1995 oral order was simply effectuating the April 6, 1988 divorce decree and its August 8, 1988 modification. Accordingly, we deem Kelly’s petition for a writ of prohibition unwarranted. See Smith v. District Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991).

In coming to this conclusion, we recognize that the district court’s June 19, 1995 written order was entered after our June 13, 1995 order staying all further proceedings in the district court. Consequently, we deem the district court’s June 19, 1995 written order void. However, this conclusion does not prohibit the district court from entering an identical order after this court files the present opinion.

Request for attorney’s fees pursuant to NRCP 11

We conclude that Mark’s request for attorney’s fees pursuant to NRCP 11 is without merit. NRCP 11 sanctions should be issued for frivolous actions. Marshall v. District Court, 108 Nev. 459, 465, 836 P.2d 47, 52 (1992). However, NRCP 11 sanctions are “not intended to chill an attorney’s enthusiasm or creativity in reasonably pursuing factual or legal theories, and a court should avoid employing the wisdom of hindsight in analyzing an attorney’s action at the time of the pleading.” Id. at 465-66, 836 P.2d at 52 (citing Marco Holding Co. v. Lear Siegler, Inc., 606 F. Supp. 204, 211 (N.D. Ill. 1985)). In the case at bar, we conclude that Kelly’s petition for a writ of mandamus and prohibition was not brought frivolously. Therefore, we conclude that NRCP 11 sanctions are not appropriate.

CONCLUSION

Having concluded that Kelly’s petition for a writ of mandamus and prohibition will not be granted, we do not need to address her other contentions regarding Hall’s removal from the case or reassigning the case to another department of the district court.

Accordingly, we deny Kelly’s petition for a writ of prohibition and mandamus. Furthermore, our June 13, 1995 order staying (1) any further proceedings in the district court; and (2) the district court’s June 2, 1995 orally pronounced order is hereby vacated in its entirety.

Springer, Shearing, and Rose, JJ., concur.

1 Hall proposed the following plan to reintroduce the children to their father:

1.) Initial contact should begin by the children’s father sending them letters, presents, etc., and talking to them on the telephone.

2.) In-person visitation must occur in an arena in which the children feel safe. It would be the recommendation of this therapist that Dr. Laskow and the Offices of the Desert Community Mental Health Center be the supervising agent for reintroducing father and the children.

3.) Activity-centered contact between father and children, in California, can begin when Dr. Laskow believes that the children are ready to take this step.

4.) At the time Dr. Laskow believes that the children’s comfort level is sufficient to allow visitation with their father and step-mother in Elko, such visitation should be supervised by an experienced mental health professional.

5.) Upon demonstration of successful reintroduction of children and father and step-mother, the parties need to make use of a formal mediation process to work out an on-going custody and visitation plan. In view of the many moves and uprootings these children have already undergone, it would be this therapist’s strong recommendation that the children continue to attend their current school where they are comfortable and have achieved some real success, both academically and socially.

2 Another fact which distinguishes Swan from the case at bar is that the Nevada district court, at the time it granted the divorce decree and granted the father custody of the children, knew that there was an action pending in the Utah district court on the same subject matter. See Swan, 106 Nev. at 467, 796 P.2d at 223. In spite of this apparent jurisdictional conflict, the Nevada district court proceeded with the father’s complaint for divorce. In contrast, and what we must emphasize, to this court’s knowledge, there are no proceedings pending in the children’s home state of California.

Additionally, unlike in Swan, a divorce decree and modification, including custody and visitation orders, were already in place prior to Kelly and the children leaving Nevada. Although Mark motioned for a change of custody, the district court declined to do so and merely enforced the already existing visitation order, while ordering compliance with a reunification plan to effectuate that visitation. Therefore, in effect, the district court left the parties virtually as they were at the time of the divorce decree and modification.

3 Our dissenting colleague cites only to Sholty v. Carruth, 616 P.2d 918 (Ariz. Ct. App. 1980), for his proposition that this court should deny jurisdiction over this matter pursuant to the UCCJA. In Sholty, the Arizona Court of Appeals held that an Ohio trial court had no jurisdiction to grant the father visitation with his children who previously moved with their mother from Ohio to Arizona. Id. at 919. One significant difference from the present case is that in Sholty the father was first seeking visitation; whereas, here, the district court merely enforced visitation rights that had already been established while Nevada was still the Lewis children’s home state.

Additionally, in Sholty, the mother challenged the Ohio order in Arizona by way of a petition for a temporary restraining order, alleging that Arizona had the proper jurisdiction, not Ohio. Id. at 918. Conversely, to this court’s knowledge, at no time had Kelly brought any legal action in California with respect to this case and even chose to challenge the district court’s order in Nevada rather than petitioning a California court to assume jurisdiction. Consequently, we do not find Sholty persuasive and prefer to follow the authority of McEvoy and Joseph E. H.

4 With regard to the modification of another state’s custody decree, the UCCJA authors wrote that “[c]ourts which render a custody decree normally retain continuing jurisdiction to modify the decree under local law.” Unif. Child Custody Jurisdiction Act § 14 commentary, 9 U.L.A. 292 (1979). The authors further stated that

[i]n order to achieve greater stability of custody arrangements and avoid forum shopping, . . . other states will defer to the continuing jurisdiction of the court of another state as long as that state has jurisdiction under the standards of this Act. In other words, all petitions for modification are to be addressed to the prior state if that state has sufficient contact with the case to satisfy [the UCCJA’s jurisdictional requirements]. The fact that the court had previously considered the case may be one factor favoring its continuing jurisdiction.

Id.

Numerous prominent commentators have also expressed their opinions that the UCCJA’s goals will be furthered, provided that jurisdiction has been met, if the state which entered the original child custody decree retains exclusive continuing jurisdiction over the matter. See, e.g., Brigitte M. Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction Under UCCJA, 14 Fam. L.Q. 203, 214 (1981) (stating that the UCCJA rule of continuing jurisdiction “carries out the Act’s two objectives of (1) preventing the harm done to children by shifting them from state to state to relitigate custody, and (2) preventing jurisdictional conflict between the states after a custody decree has been rendered”); Helen Donigan, Child Custody Jurisdiction: New Legislation Reflects Public Policy Against Parental Abduction, 19 Gonz. L. Rev. 1, 18 (1983) (stating that “[a] uniform deference to the original state creates predictability and lessens incentives to continuously relitigate custody orders in new states”).