MYERS v. HASKINS (CHILD CUSTODY)

COURT OF APPEALS OF NEVADA (0) 19478 BB 138 Nev., Advance Opinion S \ IN THE COURT OF APPEALS OF THE STATE OF NEVADA LISA S. MYERS, No. 83576-COA Appellant, VS. ~ FILED » CALEB OBADIAH HASKINS, . Respondent. | i JUN 30 20 5 c hs A BROWN } B ~ a IEF DEPUTY CLERK Appeal from a district court order denying a motion to modify chido dade custody of a minor child. Eighth Judicial District Court, Farnily Court Division, Clark County; T. Arthur Ritchie, Jr., Judge. Reversed and remanded with instructions. Patricia A. Marr, Ltd., and Patricia A. Marr, Henderson. for Appellant. : Caleb Obadiah Haskins, Philomath, Oregon. Pro Se. BEFORE THE COURT OF APPEALS, GIBBONS, C.J., TAO and BULLA, Je. OPINION By the Court, GIBBONS, C.J.: Nearly 30 years ago, the Nevada Supreme Court held that district courts may deny a motion to modifv child custody without holding an evidentiary hearing if the movant fails to demonstrate a prima facie case for modification. Rooney v. Rooney, 109 Nev. 540, 542-43, 653 P.2d 123, 124- 22-0744 Count OF APPEALS OF NEVADA (0) 19478 Bo 25 (1993). Since that decision, district courts have struggled with an unanswered question: what sources may a district court consider in determining whether a movant has demonstrated a prima facie case for modification? Today, we answer this question. We hold that when a district court seeks to determine if the movant has demonstrated a prima facie case for modification under Rooney. it must generally consider only the properly alieged facts in the movant's verified pleadings, affidavits, or declarations. It must not consider the alleged facts or offers of proof the nonmovant provides. Despite this general rule. we also announce an exception. We hold that a district court may lcok to the nonmovant’s evidentiary support when it “conclusively establishes” the falsity of the movant’s allegations. The rules we announce today will help align current practice with Rooney's central purposes: discouraging challenges to temporary custody orders and preventing repeated and insubstantial motions to modify custody. See id. at 543 n.4, 853 P.2d at 125 n.4. While Nevada courts generally adhere to the policy of deciding a case fully upon its merits, especially in child custody cases, see Dagher v. Dagher, 103 Nev. 26, 28, 731 P.2d 1329, 1330 (1987), this opinion reiterates that a movant must first show the district court-— using specific, properly alleged facts—-that his or her motion is potentially meritorious on its face. FACTS AND PROCEDURAL HISTORY Caleb Obadiah Haskins and Lisa 8S. Myers married in 2009 and divorced in 2012. They have one minor’ child together: S8.H. (now 12 years Count OF APPEALS OF Nevava (0) 19978 aE old). Under the current custedy order,! they share joint legal custody of S.H., except Caleb has sole legal custody for medical decisions. Caleb has primary physical custody of S.H. Because Caleb lives in Oregon and Lisa lives in Nevada, Lisa is aliotted, at a minimum, spring break and summer break for parenting time. In 2020, Lisa failed to return S.H. to Caleb after summer break. According to Lisa, she purchased S.H.’s plane ticket and took her to the airport. But upon arrival, S.H. expressed fear about returning to Caleb, had a panic attack, vomited twice in the restroom, and refused to board the plane. Lisa alleged that she tried later that same day to get S.H. to board the plane, but S.H. “began crying, stated her stomach was still ill, and she again, refused to go.” Lisa then notified Caleb that she would not return S.H. Caleb consequently filed a motion requesting that the court enforce the custody order by ordering Lisa to return 8.H., modify the form of Lisa’s parenting time to virtual, and issue a standard behavior order. Lisa in turn opposed Caleb’s motion and filed a countermotion to modify physical custody. In that opposition and countermotion, Lisa alleged generally, and with specific exaraples, that-Caleb medically, physically, and educationally neglected S.H.; verbally and emotionally abused S.H.; made S.H. sleep in a nonbedroom on a foam mattress on the floor because of an 1Between 2010 (when the parties filed for divorce) and 2014 (when Caleb petitioned for and was granted permission to relocate to Oregon with S.H.}, Lisa filed ten different appeals——all of which the supreme court dismissed on procedural grounds. Lisa more recently filed an unsuccessful motion to modify physica! custedy in 2018. The record does not reveal the extent to which modifications of custody have been sought between 2014 and 2018. Court oF APPEALS OF NEVADA (O) 1947H ox B overcrowded house; and denied Lisa parenting time and substantially interfered with it when it did occur. Lisa supported her opposition and countermotion with a declaration. See NRS 53.045 (permitting an unsworn declaration signed by the declarant under penalty of perjury in lieu of an affidavit). Caleb responded, denied the allegations, and provided documents and reports in suppert of his position. The district court then held a nonevidentiary hearing on Caleb's motion, which it granted. However, the court also found sua sponte that Lisa had demonstrated adequate cause to reopen discovery and provided her the opportunity to gather sufficient proof of her claims in her countermotion to modify physical custody.? It then granted the parties 90 days to conduct discovery. At the end of ihe discovery period, Lisa submitted informal? offers of proof she claimed supported her allegations. Caleb likewise offered documents that he claimed contradicted Lisa’s allegations. At the 2NRCP 16.21(a) generally prohibits postjudgmeni discovery in family law matters. NRCP 16 does, however, allow a court to order postjudgment discovery in family law matters in two situations: (1) if a court.has ordered an evidentiary hearing in a postjudgment child custody matter, or (2) if a court finds “good cause” ter the discovery. NRCP 16.21(b). In this case, the district court apparently ordered the discovery under the second exception rather than the first; however, it labeled it as “adequate cause.” 3Lisa did not provide any affidavits or declarations from the witnesses she planned to call at an evidentiary hearing. Rather, she noted the substance of specific individuals’ anticipated testimony. The individuals included both a police officer and a school counselor from Oregon, Caleb's former spouse, and S.H.s maternal grandmother. Lisa’s original allegations were supported by a declaration, as was her reply to Caleb’s “discovery.” However, Caleb did not cbiect to these offers of proof under any of the grounds listed in Rooney. See 109 Nev. at 543. 853 P.2d at 125. COURT OF APPEALS OF NEVADA (0) 19478 GBB subsequent nonevidentiary nearing, the district court stated that it was a “elose call” as to whether Lisa had demonstrated adequate cause for an evidentiary hearing because of the decuments Caleb provided and the statements he made in his supporting declaration. But the court was concerned that Lisa did not have a full opportunity to respond tc Caleb's documents and allegations,’ so it allowed Lisa time to submit a responsive declaration herself. Lisa did so, largely contesting Caleb’s allegations, explaining some of the documents he provided and arguing some cf those documents even supported her claims. After Lisa filed her responsive declaration, the district court denied Lisa’s countermotion to modify physical custody, without holding an evidentiary hearing. In denying the countermotion, the court summarily concluded that the countermotion filed by Lisa Myers and her supporting filings de not state facts that would support a substantial change in circumstances affecting the welfare of the child, and that the child’s best-interest is served by the modification. The countermotiorn iacks merit and should be denied This appeal followed. ANALYSIS Now on appeal. Lisa argues that the district court abused its discretion in denying her countermotion to modify physical custody without first holding an evidentiary hearing: She claims that she presented a prima facie case for modification because she provided declarations and informal offers of proof in the form of summaries of anticipated witness testimony, 4Caleb provided his disciosures, which were lengthy, Just days prior to the nenevidentiary hearing. Count OF APPEALS OF Nevapa (0) 1947B Bio documents, and video. Caleb. however, argues the court did net abuse its discretion in denying Lisa’s countermotion without holding an evidentiary hearing. He claims instead that Lisa failed to demonstrate a prima facie case for modification because his “discovery responses addressed and disapproved [sic] all [of Lisa’s] allegations.”° We review a district court’s decision to deny a motion to modify physical custody without holding an evidentiary hearing for an abuse of discretion. See Bautista v. Picone, 134 Nev. 334, 388, 419 P.3d 187, 160 (2018). A district court abuses its discretion only when “no reasonable judge could reach a similar conclusion under the same circumstances.” In re Guardianship of Rubin, 137 Nev., Adv. Op. 27, 491 P.3d 1, 6 (2021) (internal quotations omitted) (quoting Leavitt v. Siems, 130 Nev. 503, 509, 330 P.3d 1, 5, (2014)). But “deference is not owed to legal error, or to findings so conclusory they may mask legal error.” Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.2d 1139, 1142 (2015) (internal citations omitted). We “must be satisfied that the court’s determination was made for the appropriate reasons.” Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328. 330 (1993). Generally, “[l|itigants in a custody battie have the right toa full and fair hearing concerning the ultimate disposition of a child.” Moser v. Moser, 108 Nev. 572, 576. 836 P.2d 63, 66 (1992). But when a movant seeks to modify physical custody, a district court only needs to hold an evidentiary hearing if the movant demonstrates “adequate cause” for one. Roonex, 109 5Caleb primarily relies on an Oregon Child Protective Services (CPS) report he submitted to the district court, which determined the claims made against him were unsubstantiated. Apparently, after Lisa returned $.H. pursuant to the district court's order, she requested a welfare check for S.H., which resulted in a CPS investigation. Caleb claims that this CPS report addresses the “bulk of [Lisa's] allegations [from her offers of proof].” Court OF APPEALS OF NEVADA (0) 19478 GBB Nev. at 542, 853 P.2d at 124. “Adequate cause” arises if the movant demonstrates a prima facie case for modification. Id. at 543, 853 P.2d at 125. And to modify physical custody in Nevada, the movant must show that “(1) there has been a substantial change in circumstances affecting the welfare of the child, and (Z) the child's best interest is served by the modification.” Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 983 (2022) (quoting Ellis v. Carucct, 123 Nev. 145, 150, 161 P.3d 239, 242 (2007)). . This case asks us to address what evidence and allegations the district court may consider in determining whether the movant has demonstrated a prima facie case for modification. In determining whether a movant has demonstrated a prima facie case for modification of physical custody, the court musi accept the movant’s specific allegations as true. See Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. Ct. App. 1997) (providing that, in evaluating whether the movant established a prima facie case for custody modification, district courts must accept the movant’s allegations as true); Volz v. Peterson, 667 N.W.2d 637, 641 (N.D. 2003) (same);® cf Barelli v. 6In Rooney, the supreme court patterned the adequate cause standard after custody modification standards used in other states. 109 Nev. at 542- 43, 853 P.2d at 124-25. The supreme court also stated that the Rooney standard “comports with section 410 of the Uniform Marriage and Divorce Act [(UMDA)).” Id. at 543 n.4, 853 P.2d at 125 n.4. We therefore look to section 410 of the UMDA, the cases interpreting it, and the authority the supreme court relied on in adopting the Rooney standard for instruction in interpreting Rooney. Cf. Las Vegas Dev. Assocs., LLC v. Kighth Judiciel Dist. Court, 130 Nev. 334, 341, 325 P.3d 1259, 1264 (2014) (finding federal court interpretations of FRE 612 “instructive” in interpreting NRS 50.125— Nevada's parallel provision to FRE 612); Beazer Homes Neu., Inc. v. Highth Judicial Dist. Court. 120 Nev. 575, 583, 97 P.3d 1132, 1137 (2004) (holding that because NRS 78.585 “was patterned after Section 105 of the 1969 Count OF APPEALS OF Nevada (0) 19478 Bio Barelli, 113 Nev. 873, 879-80, 944 P.2d 246, 249-50 (1997) (requiring district courts to accept a movant’s allegations as true in considering whether the movant demonstrated a prima facie case under NRCP 41(b)); Mann v. State, 118 Nev. 351, 354, 46 P.3d 1228, 1230 (2002).(‘[W]here . . . something more than a naked allegation has been asserted, it is error to resolve the apparent factual dispute without granting... an evidentiary hearing... .” (quoting Vaillancourt v. Warden, 90 Nev. 431, 432, 529 P.2d 204. 205 (1974))). Thus, the district court should not require that the movant prove his or her allegations before holding an evidentiary hearing. See Betzer v. Beizer, 749 S.W.2d 694, 695 (Ky. Ct. Avp. 1988) (holding affidavits alone may be considered in détermining adequate cause for a hearing); Geibe, 571 N.W.2d at 777; cf. DCR 13(6) (“Factual contentions involved in any pre-trial or post- trial motion shall be initially presented and heard upon affidavits.”): Rooney, 109 Nev. at 542-43, 853 P.2d at 124-25 (permitting a court to deny a inotion to modify physical custody based solely on affidavits and points and authorities—both of which are not evidence).7 Furthermore. a district court should not weigh the evidence or make credibility determinations before holding an evidentiary hearing. Cf Barelit, 113 Nev. at 879-80, 944 P.2d at 249-50 (holding that, in evaluating Model Act, we may look to the... case law interpreting provisions based on” that act). . Section 410 of the UMDA references only affidavits as. the evidentiary mechanism through which a movant establishes adequate cause for a hearing. Unif. Marriage & Divorce Act § 410 (1973), 9A U.L.A. 538 (1998): see also Rooney, 109 Nev. at 543 n.4, 853 P.2d at 125 n.4. This is why Kentucky. which also adopted section 410, relies solely upon affidavits in determining whether a movant has dernonstirated adequate cause for a hearing. Betzer, 749 S.W.2d at 695. Count of APPEALS OF NEVADA (0) 19478. Qtr whether the movant has demonstrated a prima facie case for the purposes of NRCP 41, a court must neither “pass upen the credibility of the witnesses nor weigh the evidence” and will “disregard any contradictory evidence presented by the defense” (internal quotations omitted)); Fernandez v. Admirand, 108 Nev. 963, 968, 843 P.2d 354, 358 (1992) (“The credibility of the witnesses and the weight of the evidence are immateriai to the presentation of a prima facie cass.”). Notably, the supreme court has implicitly held that. under Rooney; the place to present evidence ‘for a district court to-weigh is at an evidentiary hearing. See Arcella v. Arcello, 133 Nev, 868. 872. 407 P.3d 341, 346 (2017) (noting that. in the Rooney context, a district court may not decide a motion to modify custody “upon contradictory sworn pleadings [and] arguments of counsel” (alteration in origina!) (quoting Mizrachi v. Mizrachi, 132 Nev. 666, 678, 385 P.3d 982, 990 (Ct. App. 2016))).8 Indeed. evidentiary hearings are designed with this purpose in mind: to resolve disputed questions of fact. See DCR 13(6) (recognizing that disputed factual points may be resolved at evidentiary ’See also Pridgeor. v. Superior Court, 655 P.2d 1, 5: (Aria, 1982) (holding that a court cannot conduct a “trial by affidavit” and atternpt to “weigh the credibility of the opposing statements” in determining adequate cause for a hearing); Boland v. Murtha, 800 N.W.2d.179. 183 (Minn. Ct. App. 2011) (holding that district courts must “disregard the contrary allegations in the nonmoving party’s affidavits” when determining if the movant demonstrates a prima facie case for modification sufficient to hold an evidentiary hearing); ONeill v. O'Neill, 619 N.W.2d 855, 858 (N.D. 2009) (holding that the district court abused its discretion by weighing conflicting testimony in determining if the movant presented a prima facie case warranting an evidentiary hearing). Court oF APPEALS OF Nevapa (0) 19478 asp hearings); EDCR 5.205(g)® (providing that exhibits attached to motions do not constitute substantive evidence unless admitted); cf. Nev. Power Co. v. Fluor Ill., 108 Nev. 638, 644-45, 837 P.2d 1354, 1359 (1992) (recognizing that conducting an evidentiary hearing is the only way to properly resolve questions of fact concerning whether to dismiss a party's suit as a discovery sanction). . Despite this holding, section 410 of the UMDA and persuasive authority from other states contemplate that a nonmovant may file an opposing affidavit. See, e.g., Unif. Marriage & Divorce Act § 410 (1973), 9A U.L.A. 538 (1998); Boland, 800 N.W.2d at 183; Mock v. Mock, 673 N.W.2d 635, 637-38 (N.D. 2004); In re Parentage of Jannot, 37 P.3d 1265, 1268 (Wash. Ct. App. 2002). We consequently recognize that nonmovants may allege facts and provide offers of proof that may address the allegations the movant has presented. And while district courts may only weigh credibility and evidence at an evidentiary hearing, they nonetheless need not blind -themselves to evidence a nonmovant presents if it “conclusively establish[es]” the movant’s claims are false. See Mock, 673 N.W.2d at 637- 38 (internal quotations omitted). Adopting this limited exception serves the purposes for which Rooney was adopted in the first place: “(1) discourag[ing] contests over temporary custody; and (2) prevent[ing] repeated or insubstantial motions for modification.” See Rooney, 109 Nev. at 543 n.4, 853 P.2d at 125 n.4 (alterations in original) (nternal quotations omitted). Additionally. in determining whether the movant has demonstrated a prima facie case for modification, district courts need not "The EDCR has been amended while this case has been pending on appeal, but the rule changes do not affect this rule. We cite to the rules in effect while this litigation was taking place in the district court. 10 Count oF APPEALS OF NeEvaADA (0) 19478 BER consider facts that are irrelevant to the grounds for modification,!® that are cumulative,!! or that are impeaching. Rooney, 109 Nev. at 543, 853 P.2d at 125. Nor need courts consider allegations which, even if proven, would only “permit inferences sufficient to establish grounds for a custody change.” Jd. Additionally, courts are not required to consider a movant's general, vague, broad, or conclusory allegations, See, e.g., DCR 13(5) (“Affidavits shall contain only factual, evidentiary matter, shall conform with the requirements of NRCP 56(e), and shall avoid mere general conclusions or argument. Affidavits substantialiy defective in these respects may be 10In demonstrating a substantial change in circumstances, the movant must allege facts that have occurred “since the last custody determination.” Ellis, 123 Nev. at 151, 161 P.3d at 243. This prong of the test for modifying custody “prevents persons dissatistied with custody decrees [from filing] immediate, repetitive, serial mctions until the right circumstances or the right judge allows them to achieve a different result, based on essentially the same facts.” /d. (alteration in original) (quoting Castle v. Simmons, 120 Nev. 98, 103-04, 86 P.3d 1042, 1046 (2004) (internal quotations omitted)). While district courts are barred from considering facts that preexisted the current custody order in considering whether a substantial change in circumstances has occurred, see id., courts are not barred from looking at that evidence to determine whether modification is in the child’s best interest. See Nance v. Ferraro, 134 Nev. 152, 163, 418 P.3d 679, 688 (Ct. App. 2018) (“[Prior orders] do not, however, bar district courts from reviewing the facts and evidence underpinning their prior rulings in deciding whether the modification of a prior custody order is in the ¢hild’s best interest.”). This is because “Nevada law is clear: the district court must consider all the best interest factors in...deciding whether te modify custody,” and a court’s decision to bar evidence simply because it preexisted the custody order amounts to an abuse of discretion. Jd. at 161-62, 418 P.3d at 686-87. Cumulative evidence has been defined as “tending to prove the same thing.” Cumulative, Blach’s Law [netionary (11th ed. 2019). a iJ Court oF APPEALS OF NEVADA (0) 19478 3m stricken, wholly or in part.”); see also, e.g., Pridgeon, 655 P.2d at 5; Betzer, 749 S.W.2d at 695: Madgett v. Madgett, 360 N.W.2d 411, 412 (Minn. Ct. App. 1985); Schumacker v. Schumacker, 796 N.W.2d 636, 640 (N.D. 2011); In re Marriage of Mac Laren, 440 P.3d 1055, 1067 (Wash. Ct. App. 2019). Finally, the district court need not consider facts alleged or exhibits filed that are not supported by verified pleadings, declarations, or affidavits. Rooney, 109 Nev. at 543 & n.4, 853 P.2d at 125 & n.4 (alluding only-to facts established in affidavits and citing section 410 of the UMDA, which requires establishing adequate cause via affidavits alone); see also NRS 15.010 (permitting verification of pleadings via affidavit): NRS 53.045 (permitting an unsworn declaration signed by the declarant under venalty of perjury in lieu of an affidavit): EDCR 5.102 (“Unless the context indicates otherwise, ‘affidavit’ includes an affidavit, a sworn declaration, and an unsworn declaration under penalty of perjury.”); DCR 13(6) (requiring factual contentions first be presented upon affidavits). For these reasons, dernonstrating a prima facie case for modification is a “heavy burden on a petitioner which must be satisfied before a hearing is cunvened.” Roorda v. Roorda, 611 P.2d 794. 796 (Wash. Ct. “App. 1980) (emphasis added}, overruled on other grounds by In re Parentage of Jannot, 65 P.3d 664, 666 (Wash. 2003). Here, Lisa alleged facts that, if proven et an evidentiary hearing, could constitute a substantia: change in circumstances affecting the welfare of S.H. and establish that it is in 8.H.’s best interest to modify custody. Specifically, Lisa alleged that Caleb, Valeri (Caleb's current wife), and Valeri’s sons (all of whom live in the home) have threatened hari to S.H., and that Valeri struck a child living with S.H. in front of S.H. See NRS 125C.0035(4)(k) (specifving that a child’s best interest includes a a w= b+ b Count oF APPEALS OF NevADA (0) 19478 Bio determination whether a parent has engaged in an act of domestic violence against the child or a persun residing with the child); NRS i125C.0035() (creating a rebuttable presumption that sole or primary physical.custody by the perpetrator of domestic violence against the child or someone living with the child is not in the child’s best interest); NRS 125C.0035(1)(b) (defining domestic violence as committing acts described in NRS 33.018(1)). Lisa also alleged that Caleb and Valeri use specific derogatory terms to demean S.H. in front of S.H. and directly to her. See NRS 125C.0035(4)(f)-(h) (collectively, the custody best interest factors related to the mental health of the parents; the physical, developmental, and emotional needs of the child; and the nature of the relationship of the child with each parent). Lisa also alleged that S.W. has overcrowded teeth that cause ker pain when eating certain foods and that Caleb will not remedy the situation or allow Lisa to remedy it for him. See NRS 125C.0035/4)(g), G) (the parents’ ability to cooperate to meet the needs of the child and parental neglect). Additionally, Lisa alleged that S.H. is often forced to clean up for the other children, care entirely for two minor children younger than 5.H. on Wednesdays for Valeri, and care for Valeri’s nonambulatory son by bringing him meals, and that Caleb and Valeri are not providing S.H. proper clothing—leaving her in ripped and dirty clothing.. See NRS 125C.0035(4)(g), (h). Gi). Not oniy dic Lisa make these allegations, but she provided two declarations and informal offers of proof, summarizing proposed witness testimony for most of them. Furthermore, Lisa has alleged that S.H. sleeps in a ronbedroom on a foam mattress in a house overcrowded with people and animals and that S.H. wants to live with her, not Caleb. See NRS 125C.0035(4)(a) (wishes of the child), (g), (h). Lisa has alleged that Caleb bas both deprived Court oF APPEALS OF NEVADA (0) 19478 Bie her of parenting time and substantially interfered with any that did occur. See NRS 125C.0035(4)(c), (d). (e) (collectively, the custody best interest factors related to which parent is more likely to allow the child to have frequent. associations and a continuing relationship with noncustodial parent: level of conflict between the parents; and the parents’ ability to couperate to meet the needs of the child): Martin v. Martin, 120 Nev. 342, 346, 90 P.3d 981, 983 (2004) (holding that a custodial parent’s substantial or vervasive interference with a ‘noncustodial parent’s parenting time constitutes changed circumstances), abrogated on other grounds by Ellis, 123 Nev. 145, 161 P.3d 239. ‘She has alleged that Caleb and Valeri do not help S.H. with her homework, do not review it, and do not check that it is done and that, as a result, S.H. has fallen behind in math. See Ellis, 123 Nev. at 152, 161 P.3d at 244 (holding a four-month slide in academic performance constituted a substaniial change in circumstances); see also NRS 125C.0035(4)(e), (g), (h). However, rather than rely upon the allegations Lisa made in her pleadings, papers, and declarations, the district court instesd relied upon Caleb’s allegations and purported sbidencé in determining whether Lisa met her burden of demonstrating a prima facie case for modification. Indeed, at the second nonevidentiary hearing, the court noted that it was a “close call” precisely because Caleb had provided a CPS report investigating some of Lisa’s claims, S.H.’s unauthenticated medica! and dental records, see NRS 52.325(2), and Lisa’s email allegedly waiving spring break parenting time. The court thus acknowledged that, before holding an evidentiary hearing, it weighed the allegations Lisa provided against the allegations and offers of proof that Caleb offered. The district court thus abused its discretion when it weighed the respective allegations and offers 14 Count OF APPEALS OF NevaADA (0) 19478 at 542-43, 853 P.2d at 124-25. To exercise that discretion, however, the district court must first find that the movant has failed to demonstrate a prima facie case for modification. See id. And today, we further require that—subject to the exception announced—district courts must make that determination by looking solely to the movants proper allegations, generally presented in the movant’s verified pleadings, declarations, or affidavits. The district court in this case thus abused its discretion when it relied upon the nonmovant’s allegations and offers of proof to find Lisa failed to demonstrate a prima facie case for modification. Because Lisa’s declarations established a prima facie case for modification, the district court abused its discretion in denying her motion to modify custody without holding an evidentiary hearing. We consequently reverse and remand the district court order with instructions to hold an evidentiary hearing. We concur: —_—_—_— | oo J odd. Tao Bulla 20