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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