AAML Nevada Chapter

Hot off the presses.......

Nevada Supreme Court issues Two Decisions in Family Law cases!

CASE: NELSON v. NELSON, Supreme Court Adv. Opn. No. 36

FACTS

During their marriage, Lynita and Eric both signed separate property agreements that transmuted their community property into two separate property trusts. They then created two other self-settled spendthrift trusts, which were funded by their separate property trusts. Klabacka later became distribution trustee of Eric's spendthrift trust (the ELN Trust). After Eric filed for divorce, the clerk of the court issued a joint preliminary injunction pursuant to EDCR 5.85, prohibiting the parties and the trusts from disposing of any property that may be subject to a community interest claim. In the divorce decree, the district court equalized the trust assets and ordered some assets from the ELN trust to be transferred to Lynita's spendthrift trust (the LSN Trust). On appeal, the court determined that both trusts were funded with separate property and remanded for the district court to conduct proper tracing to determine community interests. See Klabacka v. Nelson, 133 Nev. 164, 182, 394 P.3d 940, 954 (2017). On remand, the district court issued a preliminary injunction only for two assets subject to community property claims and declined to extend the injunction. Eric and Klabacka argued that the district court's order was not appealable.

JURISDICTION

The court has interpreted NRAP 3A(b)(3), holding that injunctions are governed by NRCP 65, which sets forth the procedure for seeking an injunction and the form that an order granting an injunction must take. However, joint preliminary injunctions pursuant to EDCR 5.517 are not governed by NRCP 65. NRCP 65(e) explicitly provides that the rule is not applicable to actions for divorce, alimony, separate maintenance, or custody of children. As such, orders granting or denying injunctions pursuant to EDCR 5.517 are not appealable under NRAP 3A(b)(3). This is so because injunctions in family law matters differ procedurally from those governed by NRCP 65. However, given the mandatory language in EDCR 5.517, a writ petition would be the appropriate vehicle to seek review of the district court's order for an arbitrary or capricious exercise of its discretion.

CASE: LOPEZ v. SERBELLON PORTILLO, Supreme Court Adv. Opn. No. 54

FACTS

Lopez gave birth to K.M.L. in El Salvador in 2007. Despite being informed of the pregnancy and birth of K.M.L., Serbellon Portillo has had no communication with and provided no support for K.M.L. K.M.L. resided in El Salvador with Lopez's mother until 2017 until Lopez's mother was no longer able to care for him. Lopez also feared for K.M.L.'s safety due to gang activity in his neighborhood. At that point, K.L.M. relocated to the United States to live with Lopez. Lopez filed a custody action seeking primary physical and legal custody and Special Immigrant Juvenile (SIJ) status. Although Serbellon Portillo was personally served, he never responded. Lopez was awarded primary physical and legal custody and the district court found that it was in K.M.L.'s best interest to remain with Lopez but that the court was unable to find that reunification is not viable due to abandonment because the court was unable to predict whether the father will seek to reunify with the child some time in the future.

SIJ ANALYSIS

Before an applicant may file a petition with the federal government for SIJ status, the applicant must obtain a state juvenile court order with three findings: (1) the juvenile is dependent on a juvenile court, or the juvenile has been placed under the custody of an individual appointed by the court; (2) due to abandonment, abuse, neglect, or some comparable basis under state law, the juvenile's reunification with one or both parents is not viable; and (3) it is not in the juvenile's best interest to be returned to the country of the juvenile's origin.

Here, the first SIJ finding was established by the order awarding Lopez custody of K.M.L. Turning to the second prong, abandonment of a child is established when the parent's conduct "evinces a settled purpose on the part of one or both parents to forego all parental custody and relinquish all claims to the child." NRS 128.012(1). There is also a presumption that the parent has abandoned the child when the parent has not supported the child or communicated with the child for six months. NRS 128.012(2). Here, the district court was only required to find that reunification is not viable, instead of not possible. The court relied on J.U. v. J.C.P.C., 176 A.3d 136, in observing that the definition of viable calls for a court to consider whether reunification is practicable or workable. The court in Romero v. Perez, 205 A.3d 903, further expanded on the concept by providing a nonexhaustive list of factors a court should consider in determining whether abuse, neglect, or abandonment indicate that reunification is not viable: (1) the lifelong history of the child's relationship with the parent; (2) the effects that forced reunification might have on the child; and (3) the realistic facts on the ground in the child's home country. The court here adopted both approaches from J.U. and Romero.
The court stated that because SIJ findings do not result in the termination of parental rights, the consideration of whether a parent has abandoned a child such that reunification is not viable is broader than the consideration of whether a parent's abandonment of a child warrants termination of the parent's parental rights. Here, because the district court looked to whether reunification might be possible in the future rather than looking at the viability of reunification, the district court erred in declining to make the predicate finding that reunification is not viable under NRS 3.2203(3)(b). The custody determination was affirmed, the denial of SIJ status was reversed, and the case was remanded for further proceedings.

SEVEN GUIDELINES FOR PARENTS WHO ARE DIVORCED/SEPARATED AND SHARING CUSTODY OF CHILDREN DURING THE COVID-19 PANDEMIC

1. BE HEALTHY
Comply with all CDC and local and state guidelines and model good behavior for your children with intensive hand washing, wiping down surfaces and other objects that are frequently touched, and maintaining social distancing. This also means BE INFORMED. Stay in touch with the most reliable media sources and avoid the rumor mill on social media.

2. BE MINDFUL
Be honest about the seriousness of the pandemic but maintain a calm attitude and convey to your children your belief that everything will return to normal in time. Avoid making careless comments in front of the children and exposing them to endless media coverage intended for adults. Don’t leave the news on 24/7, for instance. But, at the same time, encourage your children to ask questions and express their concerns and answer them truthfully at a level that is age-appropriate.

3. BE COMPLIANT with court orders and custody agreements.
As much as possible, try to avoid reinventing the wheel despite the unusual circumstances. The custody agreement or court order exists to prevent endless haggling over the details of timesharing. In some jurisdictions, there are even standing orders mandating that, if schools are closed, custody agreements should remain in force as though school were still in session.

4. BE CREATIVE
At the same time, it would be foolish to expect that nothing will change when people are being advised not to fly and vacation attractions such as amusement parks, museums, and entertainment venues are closing all over the US and the world. In addition, some parents will have to work extra hours to help deal with the crisis and other parents may be out of work or working reduced hours for a time. Plans will inevitably have to change. Encourage closeness with the parent who is not going to see the child through shared books, movies, games and FaceTime or Skype.

5. BE TRANSPARENT
Provide honest information to your co-parent about any suspected or confirmed exposure to the virus, and try to agree on what steps each of you will take to protect the child from exposure. Certainly, both parents should be informed at once if the child is exhibiting any possible symptoms of the virus.

6. BE GENEROUS
Try to provide makeup time to the parent who missed out, if at all possible. Family law judges expect reasonable accommodations when they can be made and will take seriously concerns raised in later filings about parents who are inflexible in highly unusual circumstances.

7. BE UNDERSTANDING
There is no doubt that the pandemic will pose an economic hardship and lead to lost earnings for many, many parents, both those who are paying child support and those who are receiving child support. The parent who is paying should try to provide something, even if it can’t be the full amount. The parent who is receiving payments should try to be accommodating under these challenging and temporary circumstances.

Adversity can become an opportunity for parents to come together and focus on what is best for the child. For many children, the strange days of the pandemic will leave vivid memories. It’s important for every child to know and remember that both parents did everything they could to explain what was happening and to keep their child safe.

The American Academy of Matrimonial Lawyers was founded in 1962, by highly regarded domestic relations attorneys “To provide leadership that promotes the highest degree of professionalism and excellence in the practice of family law.” There are currently more than 1650 Fellows in 50 states.

The Academy Fellows are highly skilled negotiators and litigators who represent individuals in all facets of family law. These areas include divorce, annulment, prenuptial agreements, postnuptial agreements, marital settlement agreements, child custody and visitation, business valuations, property valuations and division, alimony, child support and other family law issues.

To be represented by a Fellow of the American Academy of Matrimonial Lawyers is to be represented by a leading practitioner in the field of family law. The 1650 AAML Fellows across the United States are generally recognized by judges and attorneys as preeminent family law practitioners with a high level of knowledge, skill and integrity. Academy Fellows enjoy a reputation for professionalism, competence and integrity.

Membership:
Over 1,650 members in 50 states

Founded:
1962 in Chicago, Illinois

Chapters:
Alabama, Arizona, California, Central States (Iowa, Nebraska, South Dakota), Colorado, Connecticut, District of Columbia, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Mountain States (Idaho, Montana, Nevada, New Mexico, Utah, Wyoming), New Jersey, New York, North Carolina, Northeast States (Maine, New Hampshire, Rhode Island, Vermont),Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Virginia, Washington, and Wisconsin.

Purpose:
"To provide leadership that promotes the highest degree of professionalism and excellence in the practice of family law."

Areas of Expertise:
Divorce, prenuptial agreements, postnuptial agreements, annulment, child custody and visitation, property valuation and division, alimony and child support.