On August 27, 2009, the Supreme Court of Nevada denied rehearing on the merits of this case, but withdrew a prior opinion, affirmed in part, reversed in part, and remanded the decision in this contested post Decree custodial case.  (See 125 Nev. Adv. Op. No. 24). 

As every family law practitioner knows, Rivero is the case that recently attempted to define what exactly is “joint physical custody” and how does this designation factor into a child support calculation from one parent to the other.  Rivero v. Rivero, 195 P.3d 328, 124 Nev. Adv. Rep. 84 (2008).  The Court is supposed to determine the time each Parent has with their child (or children for purposes of this article) and determine custody in terms of “significant, frequent, continuous, and meaningful time.”  (Practice Tip:  When I litigate these types of cases and wants to include the above “buzz words” in oral argument is the acronym SFCM, which I can remember as “San Francisco Chow Mein.”  As cheesy as this may sound, this works and you just laughed, didn’t you?).

The Supreme Court determined that a rehearing on the October 30, 2008 decision was not warranted since the Court did not overlook material facts or question of law.  However, portions of the October 2008 decision were withdrawn for a number of reasons.

First, and consistent with the brief submitted by the Family Law Section of the State Bar of Nevada, “joint physical custody” requires that each Party have physical custody at least 40 percent of the time.  This is a label that practitioners can readily apply to basically add up the hours that each parent has with the children and basically “bean count” so that a specific designation of a custodial arrangement now has a bright line test that can be applied in practice. 

In Rivero, Ms. Rivero had the minor child five (5) days a week and Mr. Rivero had the child two (2) days per week.  Because the Parties stipulated on the label of joint physical custody in their Decree, the Court was not persuaded at the District Court level to change this custody designation.  Rather, the District Court, in reading the plain language of the stipulated agreement of the Parties within the four (4) corners of this document, determined that an equal child timeshare was appropriate although specific findings were required for this change is each Parties’ custodial time that the change was in the child’s best interest.  The Court further clarified that “parties may enter into custody arrangements and create their own custody terms and definitions.”  This is basically telling the Parties that they can certainly proceed at their own peril should they agree to one thing but basically intend it to mean another.  However, the Court (in this case with the label of Joint Physical Custody) left it up to the Court what was actually intended, hence the District Court basically making the call that Joint Physical Custody meant an equal timeshare.  Such a change in custodial time required findings of facts and conclusions of law that this modification served the child’s best interest. 

 

Custody Issues 

2 Prongs of Custody:  Legal and Physical Custody

1)         Legal Custody

Legal custody has long been defined as the decision making component of a child’s life, such as education, religion, and health care decisions.  See Mack v. Ashlock, 112 Nev. 1062, 921 P.2d 1258 (1996).  In Rivero, this custody component was never really at issue but the Supreme Court took the time and at the persistence of the Family Law Section to go ahead and define labels used in custody cases.  Sole custody is simply where one parent basically calls all of the shots whereas joint legal custody instills this decision-making obligation to both parents. 

Moreover, Joint Legal Custody requires a level of communication and cooperation between Parties, which in reality is not always possible.  At least in Clark County, the COPE class (required by EDCR 5.07) is an attempt for parents to get the messages that relationships sometimes end but families don’t:  Mom will always be Mom and Dad will always be Dad as I personally explain it to my clients.  Luckily, Cooperative parenting classes are available and are occasionally ordered in high conflict custody cases.  If the Parties have Joint Legal Custody, major decision-making must be done jointly whereas minor decisions can be done with the parent having the child during the particular timeshare. 

The exception to this is basically in terms of education (child must go to a particular school in one parent’s district to avoid being simultaneously enrolled and attending two schools) and health care (if little Johnnie or Suzie falls off the bike needing immediate medical attention, one parent should just make the decision for immediate medical attention rather than confirming with the other parent if taking the child screaming bloody murder to the hospital is the right thing to do).  However, having a child get braces or other non-emergency surgery is quite another story and requires Court intervention and the Court is free to determine what is appropriate under the circumstances.          

 

2)         Physical Custody

Physical custody is simply defined as the amount of time that the child spends with each parent.  The labels are Joint Physical Custody or Primary Physical Custody (subject to the visitation rights of the other parent).  Rivero reiterated past decisions that the label of physical custody affects three situations:  (1) Standard of Review to modify physical custody; (2) Procedure to move out of state with the child; and (3) Child Support. 

 

  • Joint Physical Custody

To clarify existing confusion, the Supreme Court adopted that Joint Physical Custody does not necessarily mean an “equal” timeshare.  We cannot simply “split the baby” or wake a kid up in the middle of the night because that may be determined as the 84th hour in a 168 hour week.  The legislature was free to adopt a definition of a label of a specific timeshare in NRS 125 and the time was now right for a case to come along and clear the air. Rivero is that case.     

 

The Rivero decision identified that at least one prior case, “joint physical custody approximates a 50/50 timeshare.  Wesley v. Foster, 119 Nev 110, 65 P. 3d 251 (2003).  The question then becomes is a 50/50 timeshare “to the hour” required for the label joint physical custody?  ANSWER:  NO.  However, the Court held that “consistent with legislative intent and our caselaw, in Joint Physical Custody arrangements, the timeshare must be approximately 50/50.”  Rivero identified the need for flexibility in any timeshare and that an exact 50/50 timeshare is not possible in every circumstance.  The Supreme Court adopted the “40% rule” (adopt the Family Law Section definition) so that in a Joint Physical Custody arrangement, each Parent must have the child 40% of the time, or 146 days of the year.  The quality of the time is more important than counting hours when the child is sleeping, in school, being taken care of by a third party provider, etc.  This “40% rule” is the bright line test that Nevada family law attorneys have long sought.  The bar has asked and the bench has delivered so that attorneys can not counsel our clients accordingly.     

 

  • Primary Physical Custody

Primary Physical Custody can then be defined as basically where the child is going to reside most of the time, subject to the other parent’s visitation rights.  See also Ellis v. Carucci, 123 Nev. 145, 161 P.3d 239 (2007) and Barbagallo v. Barbagallo, 105 Nev. 546, 779 P.2d 534 (1989).  To say it another way under NRS 125C.010, when addressing physical custody subject to the visitation rights of the other parent, the Court must determine the “habitual residence” of the child as stated in the Rivero decision.

In Rivero, the Court has discretion to apply Nevada law – what exactly is the approximate timeshare for Joint Physical Custody, i.e. approximately 50/50 – and not necessarily what the Parties intended – a 5/2 split in favor of Ms. Rivero.  Thus, specific findings of facts were required so that it could be determined if the modification of the timeshare did support a conclusion that the modification also served the best interest of the child.       

 

Child Support Issues

When other family law colleagues of mine initially reacted to the “modified” Wright v. Osburn in place from the initial Rivero decision, it could only be described in one word:  HEADACHE.  Some firms had computer programs to determine child support based on each Parties’ custodial time.  However, the flavor was still there:  it should not require a Ph.D in mathematics to determine child support in Nevada.  Child support calculations should not be in the same book as a Calculus book.  More importantly, this new child support formula proved to cause more work for the judiciary and also increased litigation because each hour that each parent has with the child was relevant.  It was well known that some members of the Judiciary were even reluctant to even apply the Rivero child support formula.  This invited litigation and that is probably what the Supreme Court of Nevada did NOT have in mind.  Luckily, as this case was discussed at the 2009 Family Law Convention in Ely as well as briefing by the Family Law Section in anticipation of revisiting the child support issue under Rivero, the Supreme Court correctly withdrew the Rivero formula for calculating child support.             

A change of circumstances is always required to modify child support.  The NRS 125B.145(1) “three year review” only gets the matter in front of the judge but the Court still must consider the best interests of the child to determine if modification of the child support calculation is appropriate.  Under NRS 125B.145(4), the Court may review the child support award based on a showing of changed circumstances (change of 20 percent or more of the obligor’s income).  However, the Court is not required to modify child support in this discretionary review.  Rather, these reviews only get the litigant in front of the judge.   

The reason that the Rivero Court made it clear that a change of circumstances is always required in child support litigation is to prevent multiple motions like Ms. Rivero filed subsequent to her Decree of Divorce was entered (2 months after the Decree was entered, a motion to establish child support was denied and 11 months later, a motion to modify custody and set child support was denied). 

Evidently the Family Law Section’s brief to the Supreme Court was convincing and thus, the child support formula set for Joint Physical Custody situations under Wright and Barbagallo was reaffirmed.  Child custody considerations should of course always be under the “best interest of the child” standard rather than just spending time with the child.  Public policy considerations were not ignored since having more “time” with the child (including sleeping or school time) did in fact matter with the child support calculations as the percentage of time the child had with each parent was part of the multi-step calculation that is no longer a part of Nevada jurisprudence and therefore does not need to be repeated here. 

 

Since Joint Physical Custody in Nevada is now defined as a near-equal timeshare, a separate formula put in place by the October 2008 Rivero decision became unnecessary (as hundreds of practitioners jumped for joy reading the 2009 August Rivero decision).  As it has been said in my experience, many attorney’s chose the law school route to avoid math whereas the October 2008 Rivero decision interpreting new child support calculation became every practitioner’s worst nightmare.  

 

Child Support in Primary Physical Custody cases

Child support is set under NRS 125B.070, subject to the legislative caps established every year by the Nevada Supreme Court, although the Court can consider the deviation factors enumerated in NRS 125B.080(9) to modify the obligor’s child support obligation.  This was also expressly identified in the Barbagallo decision in Primary Physical Custody situations.  Given the fact that the Rivero case was one where the Parties have Joint Physical Custody of the child, this calculation remained unchanged under Rivero.     

 

Child Support in Joint Physical Custody cases

As clearly stated in the Rivero decision, family law practitioners must know that the Wright v. Osburn Joint Physical Custody child support formula overrules Barbagallo’s Primary Physical Custody child support calculations.

 

Rivero confirmed the holding in Wright v. Osburn as to how to calculate child support in Joint Physical Custody situations.  The Parents’ respective incomes are determined and then the NRS 125B.070 formula is applied based on the number of children.  The differences in each Parties’ obligation to the other is determined and then the parent with the higher income pays the parent with the lower income.  For example, if Parent One earns $4,000 per month and Parent Two earns $3,000 per month and there are two children, Parent One would pay 25% of the difference of the incomes.  Thus, Parent One’s child support obligation would be $250 per month to Parent Two.  The label of Joint Physical Custody is all that matters and not the actual hours each parent spends with the child (e.g. the Court no longer needs to bean count and determine which parent to credit school time, etc).        

 

Other Rivero Issues

The main reason for this lengthy briefing on the August 2009 Rivero decision is based on basically doing away with the modified Joint Physical Custody child support calculations and to provide the 40% label on Joint Physical Custody cases.

Other items of note that we can take away from the new Rivero decision is that the Court must making specific findings regarding deviations to child support calculations.  At the District Court level, the Court improperly denied Ms. Rivero’s request for child support without findings but rather merely relying on the specific language of the Decree that neither Party would pay or receive child support from the other. This issue has been remanded to the district Court to determine if a child support obligation is appropriate based upon a finding of a change of circumstances since entry of the Decree.   

There was a claim of bias and that the District Court judge should have recused herself.  However, the motion lacked merit and the District Court judge did not abuse her discretion by remaining the Trier of Fact.  It was determined that “Ms. Rivero did not prove legally cognizable grounds support an inference of bias, and therefore, summary dismissal was proper.”  In other words, based on the record before the Chief Judge of the Eighth Judicial District Court, the claim of bias lacked merit and no hearing on the merits was warranted.  Ms. Rivero was sanctioned $750 in attorney’s fees for filing the motion for recusal and disqualification of the District Court judge but the record does not support the sanction and therefore the sanction was set aside since it was an abuse of the District Court Judge’s discretion.  There needed to be findings of fact and that the motion was brought without reasonable grounds.  This was not done so the sanction cannot stand but the issues was reversed and remanded to the District Court for further proceedings.

The dissent by Justice Pickering stated that the Legislature should establish child support formulas and social policy, not the Court.  Also, since the Court must determine the exact percentage of time (e.g. 40% rule for Joint Physical Custodians) that each Parent has with the child as determined by the preceding year, this encourages litigation and contrary to public policy.  Moreover, the record did not show that Ms. Rivero had a basis to file for child support and therefore the majority was incorrect remanding this issue back to the District Court.  In other words, the August 2009 Rivero decision just encourages more litigation.  Justice Pickering is concerned that the 40% rule is too rigid and does not allow the Court to basically consider all factors necessary in custodial determinations.  By making the Parties still count hours, this is contrary to allowing flexibility while focusing on the best interest of the child. 

Since the 40% rule basically encourages Parties to keeps a log of time spent with the child, this may hinder the co-parenting process.  The Court should have just enforced the stipulated Decree of the Parties and not remanding the case for more litigation. 

In conclusion, the Rivero decision fills gaps in Nevada custody law.  The astute family law practitioner should have a copy of this decision easily downloaded from the Supreme Court website.  It is truly a disservice (and malpractice) for attorneys not to check the website for new decisions from the Supreme Court.  As such, the purpose of this article is to not only educate the members of the bar about this decision but to promote responsibility in the practice of law.  Mission accomplished.          

 


Jason Stoffel is a family law practitioner in private practice since 2004.  He is employed by Roberts Stoffel Family Law Group , a Las Vegas, Nevada family law firm.