of the children went to live with appellant for eight months, and during
that time, the district court determined that appellant had primary
physical custody of that child, which neither party disputes.
After a hearing on the child support motion, the district court
entered a written order that named respondent the children's primary
physical custodian, modified appellant's child support obligation,
determined arrears and adjusted the arrears based on the eight-month
period that the one child was in appellant's custody, and declined
appellant's request to deviate his child support obligation downward based
on his youngest child, health insurance costs, and travel expenses. This
appeal followed. 2
On appeal, appellant first challenges the district court's
refusal to provide him with a downward deviation in his child support
obligation based on his responsibilities for his youngest child, health
insurance costs, and travel expenses associated with visitation.
Specifically, appellant argues that the district court was required to
consider the factors set forth in NRS 125B.080(9) to adjust the amount of
child support owed. Further, appellant contends, without citation to any
legal authority, that because the district court failed to give an
explanation for not providing any deviation, and because appellant had
received a deviation before for his youngest child, he has met the "clearly
erroneous standard."
Under NRS 125B.080(9), the district court must consider
different factors when adjusting a child support obligation. See NRS
2Appellant does not challenge the child custody arrangement or the
specific amount of the arrears.
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125B.080(9)(a) (health insurance costs); NRS 125B.080(9)(e)
(responsibilities for other children); NRS 125B.080(9)(i) (travel expenses
associated with visitation). The amount of child support is determined by
the statutory formula set forth in NRS 125B.070, and the district court
has limited discretion to deviate from the formula based on the factors
provided in NRS 125B.080(9). Anastassatos v. Anastassatos, 112 Nev. 317,
320, 913 P.2d 652, 654 (1996). The district court must support any
deviation with written factual findings. Id. Moreover, a district court's
order concerning child support will not be overturned absent an abuse of
discretion. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543
(1996).
Here, the record shows that the district court satisfied NRS
125B.080(9)'s requirement when it considered appellant's requests to
deviate from the statutory child support formula at the July 6, 2012,
hearing. In addition, the court gave the parties the opportunity to brief
the issues for the court's consideration before the court entered its written
order. Respondent filed a brief arguing her points for not deviating from
the child support statutory formula, but appellant did not file a brief. And
although the district court may have expressed an inclination at the
hearing to allow a deviation for appellant's youngest child, but then did
not provide a deviation in its written order, the court did not abuse its
discretion by doing so. See Rust v. Clark Cnty. Sch. Dist., 103 Nev. 686,
688, 747 P.2d 1380, 1382 (1987) (recognizing that a district court may
reconsider an issue and enter a written decision that differs from the oral
pronouncement); see also Bd. of Gallery of History v. Datecs Corp., 116
Nev. 286, 289, 994 P.2d 1149, 1150 (2000) (stating that the district court's
failure to rule on a request constitutes a denial of the request).
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Accordingly, we conclude that the district court did not abuse its discretion
in not providing appellant any deviation from the statutory support
formula. Wallace, 112 Nev. at 1019, 922 P.2d at 543.
Next, appellant argues that that the district court's award of
child support as of March 2012 was an improper retroactive modification
because no motion for child support was pending at that time. Nevada
law prohibits retroactive modification of a support order, but a court may
apply the modification as far back as the date the modification was
requested. Ramacciotti v. Ramacciotti, 106 Nev. 529, 532, 795 P.2d 988,
990 (1990). Here, appellant requested the three-year child support review
in April 2011, and the parties litigated the issue between April 2011 and
July 2012. Further, after respondent was awarded custody of both
children in early 2012, she filed an objection to the master's
recommendations for support, which notified appellant that the new
custody arrangement would be relevant to modifying child support. Thus,
appellant was on notice as of April 2011, due to his own request for a child
support review, and again in March 2012, based on respondent's objection,
that a change in child support might occur. Accordingly, the district court
did not abuse its discretion in awarding respondent child support as of
March 2012. Wallace, 112 Nev. at 1019, 922 P.2d at 543.
Finally, appellant contends that the district court
miscalculated the parties' respective gross monthly incomes for the
purpose of determining their child support obligations for the period when
each party had custody of one of the children and for the period from
March 2012 forward when respondent was awarded primary physical
custody. See Wright v. Osburn, 114 Nev. 1367, 1368-69, 970 P.2d 1071,
1072 (1998) (calculating child support for joint physical custody
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arrangements based on the difference in the parties' gross monthly
incomes); see also NRS 125B.070(1) (setting forth the noncustodial
parent's child support obligation as a percentage of that parent's gross
monthly income). NRS 125B.070(1)(a) defines gross monthly income as
"the total amount of income received each month from any source,"
excluding deductions "for personal income tax, contributions for
retirement benefits, [or] contributions to a pension or for any personal
expenses." To determine the parties' gross monthly income, the court
"may direct either party to furnish financial information or other records,
including income tax returns . . .." NRS 125B.080(3).
In this case, the district court considered several documents
filed by both parties, including the parties' W-2 forms and appellant's
Department of Defense Civilian Leave and Earnings Statement.
Appellant argues that the district court erred because it failed to consider
a W-2 form from respondent's third employer. According to appellant,
respondent submitted W-2 forms from Washoe Barton Medical, Surgical
Associated of Lake Tahoe, and Carson Valley Medical Center and the
district court ignored the Carson Valley Medical Center form. Respondent
countered that Washoe Barton Medical and Carson Valley Medical Center
were the same employer, and the district court agreed. Appellant also
contends that the district court erroneously relied on his Civilian Leave
and Earnings Statement rather than his W-2 form, which attributed an
approximate $800 per month higher income than his W-2 forms. But
respondent contended below that the Civilian Leave and Earnings
Statement more accurately established appellant's gross monthly income,
because the W-2 form deducted funds for health, dental, and vision
insurance, as well as his savings plan deductions, and the district court
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accepted that contention. Accordingly, we conclude that the district
court's findings as to the parties' respective incomes are supported by
substantial evidence, Shydler v. Shydler, 114 Nev. 192, 196, 954 P.2d 37,
39 (1998); NRS 125B.070(1)(a), and that the district court did not abuse its
discretion in calculating the child support. Wallace, 112 Nev. at 1019, 922
P.2d at 543.
For the above reasons, we
ORDER the judgment of the district court AFFIRMED.
As,
Hardesty
J.
Douglas
hita
Cherry
cc: Hon. James Todd Russell, District Judge
Shawn B. Meador, Settlement Judge
Jonathan H King
Loren Graham
Carson City Clerk
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