Mizrachi v. Mizrachi

                                                      132 Nev., Advance Opinion       W49
                         IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                   ELIEZER MIZRACHI,                                    No. 66176
                   Appellant,
                   vs.
                   DIANE MIZRACHI,
                                                                             FILED
                   Respondent.                                                SEP 1 5 2016
                                                                           14711.. K. LINDEMAN
                                                                         CLER F UPS -  4MEfit.tif
                                                                        BY
                                                                             CHIEF DEPUT CLERK

                              Appeal from a district court order granting a motion to clarify
                   the holiday parenting time provisions in the parties' divorce decree.
                   Eighth Judicial District Court, Family Court Division, Clark County;
                   Gerald W. Hardcastle, Senior Judge.'
                              Reversed and remanded.



                   Jacobson Law Office, Ltd., and Rachel M. Jacobson, Las Vegas,
                   for Appellant.

                   Diane Mizrachi, North Las Vegas,
                   in Pro Se.




                   BEFORE GIBBONS, C.J., TAO and SILVER, JJ.




                        'Although Judge Hardcastle signed the order, the Honorable Jack B.
                   Ames, Senior Judge, decided the motion at issue while sitting in
                   Department C.


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                                                     OPINION

                   By the Court, GIBBONS, C.J.:
                               In family law cases, parents are encouraged to work together
                   to reach agreements to allow them to maintain control over how they will
                   exercise custody of their children. See Bluestein v. Bluestein, 131 Nev. ,
                   , 345 P.3d 1044, 1047 (2015) ("Public policy encourages parents to enter
                   into private custody agreements for co-parenting."). And when they do,
                   the resulting agreements are generally enforceable, as long as "they are
                   not unconscionable, illegal, or in violation of public policy."    Rivera v.
                   Rivera, 125 Nev. 410, 429, 216 P.3d 213, 227 (2009). But even when
                   parents come to an agreement, disputes may later arise as to what the
                   parties meant by a term in the agreement, or whether the agreement is
                   working as the parties intended. Thus, when the agreement is
                   incorporated into a judgment, order, or decree, there are mechanisms in
                   place for parents to return to court to resolve such disputes.
                               In this appeal, we discuss one such dispute and the proper
                   method for resolving that dispute. In particular, we consider whether a
                   motion filed in the district court was a motion to modify an agreement-
                   based decree, or rather, was a motion to clarify, interpret, or construe the
                   decree. And we conclude that, in the underlying action, the district court
                   clarified, rather than modified, the parties' divorce decree, as that court
                   defined the rights assigned to the parties by the decree. While it was
                   proper for the court to clarify the decree, our review of the record
                   demonstrates that the district court did not apply the proper procedure in
                   doing so, as the court failed to take evidence or otherwise consider the
                   intent of the parties in reaching the agreement that led to the decree.



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                   Thus, we reverse the district court's decision and remand this matter to
                   the district court for further proceedings consistent with this opinion.
                                     FACTS AND PROCEDURAL HISTORY
                                Based on the parties' unwritten, out-of-court stipulation, the
                   district court entered a divorce decree drafted by respondent Diane
                   Mizrachi's attorney. 2 As relevant to this appeal, the decree grants the
                   parties joint legal and physical custody and provides that appellant
                   Eliezer Mizrachi (Eli) "will have the minor child for the Jewish holidays
                   every year," and Diane "will have the minor child on the Christian
                   holidays every year." The decree does not identify specific days or times or
                   otherwise define what is meant by "the Jewish holidays" or "the Christian
                   holidays."
                                Less than ten months after the court entered the divorce
                   decree, Diane filed a motion to clarify the decree as to the holiday
                   parenting time schedule, asserting that disputes had arisen between the
                   parties with regard to Eli's holiday parenting time. 3 In particular, Diane
                   asserted that Eli was requesting parenting time with the child for the full
                   period of 12 Jewish holidays, 4 whereas she believed the divorce decree only


                         2 EDCR  5.09(2) states "all contested divorces which are settled by the
                   parties with all issues resolved. .. may be submitted without hearing by
                   agreement of the parties and with the approval of the court."

                         'Diane's motion and Eli's subsequent countermotion contained
                   additional requests for relief beyond what is discussed in this opinion.
                   Because the district court's resolution of these additional requests is not
                   challenged on appeal, the requests are not discussed further herein.

                         4 Specifically,
                                    Eli asserted that he was entitled to parenting time on
                   Rosh Hashanah, Yom Kippur, Sukkot, Shemini Atzeret, Simchat Torah,
                   Hanukkah, Tu B'Shevat, Purim, Passover, Lag B'Omer, Shavuot, and
                                                                   continued on next page...
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                    allowed him to have holiday parenting time on the first day of Hanukkah,
                    Passover, Rosh Hashanah, and Yom Kippur. In support of her position,
                    Diane alleged that, during their 13-year marriage, Eli rarely observed any
                    of the Jewish holidays. She also noted that, if the provision was
                    interpreted as Eli suggested, there would be potential conflicts with her
                    parenting time on the Christian holidays, as the days of the Jewish and
                    Christian holidays sometimes overlap.
                                   In the motion, Diane asserted that each department of the
                    Family Division of the Eighth Judicial District Court used a default
                    schedule, which identified only Hanukkah, Passover, Rosh Hashanah, and
                    Yom Kippur as the relevant Jewish holidays for setting a custody
                    schedule. And she argued that the parties' divorce decree should be
                    interpreted consistently with the default schedule. 5 Eli opposed the
                    motion, contending that the decree's reference to "the Jewish holidays"
                    included all 12 of the holidays that he sought, which extended for the full
                    holiday time frame Moreover, Eli contended that Diane had agreed to
                    give him these holidays in exchange for him giving up certain other rights


                    ...continued
                    Tisha B'Av. In a post-decree letter that was attached to Diane's motion,
                    Eli indicated that he was willing to compromise to some extent on these
                    holidays. To that end, he stated that he wanted the full time period for
                    Yom Kippur (one day), Hanukkah (eight days), and Passover (eight days)
                    and at least the first night of four of the other holidays.

                          5Although the underlying case was assigned to Department C, Diane
                    attached the default schedule for Department D as an exhibit to her
                    motion. At a later hearing, her attorney represented that he spoke to
                    Department C's law clerk, who had informed him that Department C used
                    Department D's default schedule.


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