"The moving party has the burden of establishing that it is in the child's
best interest to reside outside of Nevada with the moving parent as the
primary physical custodian. The issue is whether it is in the best interest
of the child to live with parent A in a different state or parent B in
Nevada." Potter at 618, 119 P.3d at 1250. Child custody decisions rest
within the district court's sound discretion. See Wallace v. Wallace, 112
Nev. 1015, 1019, 922 P.2d 541, 543 (1996).
Having reviewed the record, we conclude that the district
court applied the correct legal standard as set forth in Potter and
conducted a lengthy analysis of each of the factors delineated in NRS
125.480(4) for determining the children's best interests. The district court
found that respondent was more likely to meet the physical,
developmental, and emotional needs of the children at this time. The
court's findings are supported by substantial evidence in the record, and
appellant has identified no erroneous findings that would change this
result. See Rico v. Rodriguez, 121 Nev. 695, 701, 120 P.3d 812, 816 (2005).
While the district court did also consider the Schwartz factors, its analysis
of these factors did not affect its decision as to the children's best interests.
As a result, we conclude that the district court did not abuse its discretion
in making the custody determination.'
"Appellant also asserts that the district court did not apply the
presumption under NRS 125.490(1) that joint custody is in the children's
best interests when the parties so agree. While the district court did not
specifically address this presumption, based on the district court's overall
factual findings that primary custody with respondent in California was in
the children's best interests, we conclude that the presumption was
overcome here. C.f. Mosley v. Figliuzzi, 113 Nev. 51, 60-61, 930 P.2d 1110,
1116 (1997) (recognizing the presumption for joint physical custody under
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Appellant next contends that the district court's initial refusal
to award her preliminary attorney fees significantly impaired her
litigation of the case, including her ability to present expert testimony
regarding the children's special needs. While the district court declined to
award preliminary attorney fees prior to the evidentiary hearing, the
district court later reconsidered the request and awarded appellant $5,000
in preliminary attorney fees in the final order. We conclude that such an
award was not an abuse of discretion and that appellant has not
demonstrated any prejudice resulting from the district court's initial
refusal to award the attorney fees. See Leeming v. Leeming, 87 Nev. 530,
532, 490 P.2d 342, 343 (1971) (recognizing the power to award suit money
in post-divorce litigation as part of the court's continuing jurisdiction); see
also Halbrook v. Halbrook, 114 Nev. 1455, 1461, 971 P.2d 1262, 1266
(1998).
Appellant further contends that the district court imposed
time limits on her evidentiary presentation, admitted hearsay testimony
regarding respondent's educational plan for the children, and did not allow
appellant adequate time for cross-examination. She also asserts that the
district court refused to continue the evidentiary hearing to resolve
discovery issues, and denied her due process. Having reviewed the record,
we conclude that the district court did not abuse its discretion as to any of
these issues, see FGA. Inc. v. Giglio, 128 Nev. , , 278 P.3d 490, 497
. . . continued
NRS 125.490, and indicating that circumstances affecting the child's
welfare may nonetheless be grounds for altering a joint custody decree).
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(2012) (reviewing a district court's evidentiary rulings for an abuse of
discretion); Young v. Nev. Title Co., 103 Nev. 436, 441, 744 P.2d 902, 904-
05 (1987) (providing that the district court has wide discretion in
conducting a trial, including limitations on the presentation of evidence);
Hahn v. Yackley, 84 Nev. 49, 54, 436 P.2d 215, 218 (1968) (stating that the
district court has wide discretion in issues of pretrial discovery), and that
the district court's rulings did not deprive appellant of due process. See
Brown v. Brown, 96 Nev. 713, 715-716, 615 P.2d 962, 964 (1980)
(identifying the due process requirements of notice and the opportunity to
be heard). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Saitta
cc: Hon. Cynthia Dianne Steel, District Judge, Family Court Division
Paul H. Schofield, Settlement Judge
Kunin & Carman
Kainen Law Group, PLLC
Lemons, Grundy & Eisenberg
Eighth District Court Clerk
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Schroeder v. Schroeder (Child Custody)
Combined Opinion