Moser v. Moser

836 P.2d 63, 108 Nev. 572, 1992 Nev. LEXIS 111
CourtNevada Supreme Court
DecidedAugust 6, 1992
Docket22726
StatusPublished
Cited by15 cases

This text of 836 P.2d 63 (Moser v. Moser) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moser v. Moser, 836 P.2d 63, 108 Nev. 572, 1992 Nev. LEXIS 111 (Neb. 1992).

Opinions

OPINION

By the Court,

Rose, J.:

Amy Antonucci Moser (Amy) and Tim Moser (Tim) were married in Las Vegas, Nevada, on September 15, 1985, and were divorced on September 21, 1987. Their only child, Elizabeth Katherine Moser (Katie) was approximately eighteen months old at the time of the parties’ divorce. Initially, both parties agreed that Amy should have primary physical custody of Katie.

After divorcing Tim, Amy married Gregory Scott Reynolds (Greg) and became Amy Reynolds. Amy, Greg, and Katie continued to live in Las Vegas until the summer of 1990, when the family moved to Detroit, Michigan, because of Greg’s employment. Fourteen-year-old Richard Reynolds (Richard), one of Greg’s children from his previous marriage, also resided with the family in Michigan. Around the time of the move, Tim executed an agreement that permitted Amy to relocate with Katie to Michigan.

[574]*574Pursuant to Tim and Amy’s relocation agreement, Tim was permitted to pick Katie up in Michigan and take her to Las Vegas for two weeks in December of 1990. Tim failed to return Katie to her mother in Michigan at the end of this two-week period. Consequently, Amy went to Las Vegas to retrieve the child. Because Tim refused to relinquish custody of Katie, Amy filed a motion in the district court to compel her return. At a hearing before a court appointed domestic relations referee, Tim alleged for the first time that the reason he had refused to return Katie to Amy was that Katie had been behaving in a manner that suggested that she had been sexually abused.

In support of his allegation of sexual abuse, Tim submitted numerous affidavits from his friends and family to the referee. In his own affidavit, Tim stated that he, his live-in girlfriend, Brenda Gardner (Brenda), his baby sitter, Tiffany Krisciliojlu (Tiffany), and his sister, Sheri Brown (Sheri), all observed that Katie needed to urinate every fifteen to twenty minutes during the day and evening, and that she would freely and openly undress in front of them and digitally fondle her vaginal area. Tim further alleged that Katie had told him that she showered with both Greg and Richard, and that they would have her wash their “prickers” or “buff their helmets.” Tim also stated that Katie said she knew a man who had been murdered, that she described in detail the dead body and blood, and that she complained of a monster who scratched her.

Tim also took Katie to see Dr. Joan Owens (Owens), a licensed family counselor. Owens’ affidavit stated that her observations of Katie and the statements that Katie made during their counseling sessions indicated that she may have been sexually molested. However, Owens also admitted that most of the information contained in her initial affidavit was based upon statements made to her by Tim and Brenda.

Tim farther alleged that Katie was developmentally disabled. Several of his friends and family members stated in their affidavits that Katie was an uncontrollable and obnoxious child when she first arrived in Las Vegas. In addition, Tim submitted a progress report from the preschool in which he had enrolled Katie. This report stated that Katie initially would not follow directions. However, the report also stated that by the end of Katie’s first week of preschool, she was behaving better; by the end of her second week, she was progressing academically; and by the end of her third week, she was doing very well.

Amy also submitted an affidavit, stating that Katie was never obnoxious or hyperactive in her presence. She further stated that she had never observed a tendency on Katie’s part to urinate frequently, and that Katie had never mentioned having seen a man [575]*575murdered or being scratched by monsters. In addition, Amy testified that although she had heard her stepson, Richard, use the phrase “beat my meat,” the only individual she had ever heard use the expression “buff my helmet” was Tim, who used it frequently. Amy contended that the allegations that Katie showered with Greg and Richard were false, because Katie was in Amy’s physical presence substantially all of the time she resided in Michigan, and because the house in Michigan was in the process of being remodeled at that time and did not have a functional shower. She also stated that she had enrolled Katie in preschool in November of 1990, and that her progress reports did not mention any unusual behavior.

Beginning on February 5, 1991, a series of hearings were held before a domestic relations referee. Because the referee could not ascertain the merit of Tim’s allegations of sexual abuse, he referred the parties to marathon conflict resolution through the district court’s Child Custody Division. The referee also determined that it would be beneficial for the court to appoint its own independent expert to evaluate and counsel the child, and he appointed Dr. Elizabeth Richitt (Richitt), a licensed psychologist, for that purpose.

On May 23, 1991, after Richitt had had an opportunity to evaluate Katie, the referee again considered the evidence presented, which included deposition transcripts of Richitt, Tim, Sheri, Brenda, and Tim’s mother, Virginia McBride. In addition, the referee discussed this case at length with Richitt and with Bill Sheldon of the Child Custody Division. The referee did not, however, consider Owens’ reports. The referee concluded that: (1) Katie had experienced trauma, which was at least partially caused by separation anxiety, (2) there was nothing to suggest that Amy or Amy’s lifestyle in Michigan were the cause of Katie’s behavioral problems, (3) Amy’s household was not inappropriate, (4) the allegations of sexual abuse had not been shown, and (5) there had not been a change of circumstances. Therefore, the referee ordered that Amy should retain custody of Katie and that they should be permitted to return to Michigan. The referee also stipulated that Katie should be enrolled in preschool to further her social development, and that she should be evaluated by a clinical psychologist in Michigan shortly after her return to that state.

Tim filed an objection to the referee’s report within ten days, alleging that the referee erred in considering the evaluation of Richitt rather than Owens, with whom Katie had reportedly “bonded.” No other specific objections to the referee’s findings of fact were raised. Because of Tim’s objections, the district judge decided to reconsider the matter without conducting an [576]*576evidentiary hearing but requiring Richitt and Owens to meet with Katie one more time and to each submit an additional evaluation.

Having read the additional reports of the counselors' and reviewed the affidavits in the record, the district court found that there had been a drastic change in the situation of both parents since their divorce in 1987. However, the judge failed to indicate the nature of this change. He also concluded that it would be in Katie’s best interest to be placed with Tim, based upon the statement in Richitt’s report that “a return to Michigan may reactivate Katie’s anxiety,” and the statement in Owens’ report that “Katie is a fragile child.” Thus, the district judge reversed the referee’s decision and awarded primary physical custody of Katie to Tim. In addition, although permitting the parties to share joint custody of Katie, the district judge limited Amy’s visitation rights to visitations occurring in the State of Nevada.

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Bluebook (online)
836 P.2d 63, 108 Nev. 572, 1992 Nev. LEXIS 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moser-v-moser-nev-1992.