138 Nev., Advance Opinion 51 lN THE COURT OF APPEALS OF THE STATE OF NEVADA

LISA S. MYERS, No. 83576-COA Appellant, vs. CALEB OBADIAH HASKINS, Respondent. t:. JUN 30 20 ELIZ

BY EF DEPUTY CLERK

Appeal from a district court order denying a motion to modify custody of a minor child. Eighth Judicial District Court, Family 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 APPE.ALS, GIBBONS, C.j., TAO and. BULLA, Jj. OPINION By the Court., GIBBONS, C.J.: Nearly 30 years ago, the Nevada Supreme Court held that district courts may deny a motion to modify 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, 853 P.2d 123, 124- COURT OF APPEALS OF NEVADA (0) 194711 are?x, 24- 2,01q, 25 (1993). Since that d.ecision, 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 alleged fa.cts in the rnovant'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 look 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 Dagher, 1.03 Nev. 26, 28, 731 P.2d 1329, 1.330 (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 S. Myers married in 2009 an.d divorced in 2012. They have o.n.e minor. child together: S.H. (now 12 years COURT OF APPEALS OF NEVADA (0) 19475 old). Under the current custody order,1 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 allotted, at a minimum, spring break and summer break for parenting tirne. 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 S.H., rnbdify 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 Counterm.otion, Lisa alleged generally, and with specific examples, thatCaleb medically, physically, arid 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 'Between 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 sunreme court dismissed on procedural grounds. Lisa more recently filed a.n unsuccessful motion to modify physical custody in. 2018. The record does not reveal the extent to which modifications of custody have been 5ought between 201.4 a.nd 2018. COURT OF APPEALS OF NEVADA (0) 1947B

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 support 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.^[2] It then granted the parties 90 days to conduct discovery. At the end of the discovery peri.od, Lisa submitted informal3 offers of proof she claimed supported h.er allegations. Caleb likewise offered documents that he claimed contradieted Lisa's allegationS. At the

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subsequent nonevidentiary hearing, the district court stated that it was a "close cair as to whether Lisa had demonstrated adequate cause for an evidentiary hearing because of the documents Caleb provided and th.e statements he made in his supporting declaration. But the court was

concerned that Lisa did not have a full opportunity to respond to Caleb's documents and allegations,4 so it allowed Lisa time to submit a responsive declaration herself. Lisa did so, largely contesting Caleb's allegations, explaining some of the d.ocuments he provided and arguing some of those documents even supported her . clairns. • (0) 1947A

documents, and video. CateL., however, argues the court did net abuse its discretion in denying Lisa's countermotion wi.thout h.olding 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."5 We review a district court's decision to deny a motion to modifý physical custody without holding an evidentiary hearing for an abuse of discretion. See Bautista v. Picone, 1.34 NeV. 334, 338, 419 P.3a 157, 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 c. Sierns, 130 Nev. 503, 509, 330 P.3d 1, 5, (2014)). But "defere.nce is not owed tb legal error, or to findin.gs so conclusory they may mask legal error." Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015) (internal cita.tions omitted). We "must be satisfied that the court's . deterniination. was made for the appropriate reascins." Sims v. SiMs, 109 Nev. 1146; 1148, 865 P.2d 328, 330 (1993). Generally, "[1]itigants ih a custody battle have the right to a full and fair hearing .concerning the ultiniate diSposition of a child." Moser v. Moser, 1.08 Nev. 572, 576; 836 P.2d 63, 66 (1992). But when a rnovant.seeks to modify physical custody, a district court. only needs to hold an evidentiary hearing if the rnovant demonstrates "adequate cause" for one. Rooney; 109

5Caleb primarily relies on. an Oregon Child Protective Services (CPS) report he submitted to the district court., which determined the.clainas made a.gainst him were unsubstantiated. Apparently, after Lisa returned S.H. pursuant to the district court's ord.er, she requested a welfare check fbr 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) 1947B •

Nev. at 542, 853 P.2d at 124.. "Adequate cause" arises i.f the rnovant demonstrates a prima facie case for modification. Id. at 543, 853 P.2d at 125. And to modify physical custod.y in Nevada, the movant must show that "(1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child's best interest is served by the modification." Romano v. Rorn.ano, 138 Nev., Adv. Op. 1, 501 P.3d 980, 983 (2022) (quoting Ellis v. Carucci, 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 clistody, the court must 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 rnovant 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);6 4. BareHi I),

'In 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 Uniforrn Marriage and Divorce Act KUMDA)]." Id. at 543 n.4, 853 P.2d at 125 n.4. We therefore look to section 410 of the UM DA, the cases interpreting it, and the authority the supreme court relied on in adopting the Rooney standard for instruction i.n. interpreting Rooney. Cil Las Vegas Dev. Assocs., LLC v. Eighth Judicial. 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., in.c. v. Eighth. 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 COURT OF APPEALS OF NEVADA

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Bareili, H3 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):C[W]here . . . something m.ore 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 .pfove his or her allegations before holding an evidendary hearing. See Betzer u. Be6zer, 749 S.W:2d '694, 695 (Ky. Ct. AI*. 1988) (holding affidavits alone m.aY be considered in déterthining 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 . u.pon affidavits."): Rooney, 109 Nev. 'at 542-43, 853 P.2d at 124-25 (permitting a cdurt to• deny motion to modify physical ctistodY 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 hearin.g. cf. Barelli, 113 Nev. at 879-80, 944 P.2d at 249-50 (holding that, in evaluating (0) 19476

whether the movant has ciern.-instrated a prima facie case for the purposes of NRCP 41, a court must neicher "paf.4s upon th.e credibility of the witnesses nor weigh th.e 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 iMmaterial to the presentation of a prima fa.cie case:). Notably, the supreme court has iMplicitly held that, 'Under -ROóney;-•the place to present evid.ence district cou.rt to.weigh i$ at a.n evid.entiary hearing. See Arcella u. Arcella, 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 [a.nd] arguments of counsel" (alteration in original) (quoting Mizrachi Mizrachi, 132 Nev. 666, 678, 385 P.3d 982, 990 (Ct. App. 2016))).8 Ind.eed, evid.entiary 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 (01 194713 QC*

consider facts that are irrelevant to the grounds for rnodification,1° that are cumulative,il 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." Id. 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 substantially defective in these respects -may be

10 In 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. Th.is prong of the test for modifying custody "prevents persons dissatisfied with custody decrees [from filing] immediate, repetitive, serial motions until the ,right circumstances or the right judge all.ows them to achieve a d.ifferent result, based on essentially the same facts." id. (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, 16.3, 418 P.3d 679, 688 (Ct. App. 2018) ("[Prior orders] do not, however, bar. district courts from reviewing the facts and . evidence u.nderpinning th.eir prior ruling's . in deciding whether the modification of a prior custody order is in the best interest:"). This is because "Nevada law is clear: the district court must consider all the best interest factors in ... deciding whether to modify custody," and a court's decision to ba.r evidence simply because it preexisted t.he custody order amounts to an ahuse of discretion. Id. at i 61-62, 418 P.3d at. 686-87. nCum.ulative evidence has been defined as "tending to prove the same thing." Cumulative, Black's Law Dictiona.ry (11th ed. 2019). COURT OF APPEALS OF NEVADA

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stricken; wholly or in part"); see also, e.g.. Pridgeon, 655 P.2d at 5; .Betzer, 749 S.W.2d at 695; Madgett Madg'ett, 360 N.W.2d 411, 413 (Minn.. Ct. App. 1985); Schurnacker Schurnacker, 796 N.W.2d 636, 640 (N.D. 2011); In. re Marriage of MacLaren, 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 & 11.4, 853 P.2d at 125 & n.4 (alluding only to facts established in affidavits and citing section 41.0 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 penalty of perjury in lieu of an affidavit); EDCR 5.102 ("Unless the context indicates otherwise, 'affidavit' includes an affidavit, a sWorn declaratieri, and an unsworn declaration under penalty of perjury."); DCR . 13(6) (reqtiiring .factual contentions first be presented upon affidavits). For these reasons, demonstrating a Prima facie case for modification is a. 'heavy 'burden on a petitioner which mu.st be satisfied befOre a h.earing is convened." Roorda v. RoOrda, 611 P.2d 794. 796 (Wash. Ct. APp. 1980) .(emphasis added.), • (0) 94713

of proof without holding an evidentiary hearing and concluded that Lisa failed to demonstrate a prirna facie case for modification. Furthermore, the CPS report that Caleb provided the district court did not "conclusively establish" the falsity of Lisa's allegations, despite the similarity between the claims the CPS worker investigated and some of the allegations Lisa presented to the court. Generally, a CPS case worker not substantiating similar claims to the ones alleged will not conclusively establish the falsity of a movant's allegations.'2 Such a decisiOn, as in this case. would require evaluating the credibility of the CPS worker's testimony and the quality of her investigation versus Lisa's sworn allegations. While in many cases an admissible CPS report can be helpful in resolving a case on the merits, making such determinations is best left to an evidentiary hearing so the parties can challenge or support the accuracy of the report and its conclusions, and so the court can review the thoroughness of the CPS investigation and make credibility determinations." Thus, the'district

12Indeed, such reports are not automatically admissible and are subject to most of Nevada's typical evidence rules. See In re Parental Rights as to J.D.N., 128. Nev. 462, 469-70, 283 P.3d 842, 847-48 (2012). The problem with relying on a nonmovant's documents to determine a movant has not denionstrated a prima facie case for modification-is that it disposes of the movant's case upon conflicting evidence that might not even be admissible at an evidentiary hearing. Denial determinations under Rooney that effectively end a case for a litigant should not be made on confticting and potentially inadmissible evidence. °Finally, even with a reliable CPS report and credible testimony, the CPS report's recomm.endations may not be applicable because the conclusion from a child protection investigation haS a different purpose than a motion to modify custody. See, eg., NRS 432B.180 (detailing the duties of the Division of Child and Family ServiCes (DCFS)); NRS 432B.330 (describing when a child may need protecti.on by DCFS); NRS 432B.340 COURT OF APPEALS OF NEVADA court abused its discretio.n in weighing the evidence and making credibility determinations resulting in a case-ending custody decision based upon conflicting evidence without holding an evidentiary hearing. And here, even accepting the CPS report as admissible and accurate, Lisa made many other specific allegations that establish a prima facie case for modification. The district court therefore abused its discretion when it weighed Caleb's proposed evid.ence against Lisa's relevant allegations and determined. that• Lisa had not made a prima facie showing for modifying phYsical custody. The district court therefore should haVe found adequate cause to hold an evidentiary hearing based on Lisa's allegations.14 The district court cOnsequently abused its discretion becanse

(noting that a child not in imminent danger from abuse or neglect need not necessarily be placed in protective custody). "To clarify, once a movant establishes a prima facie case for modification based upon his or her verified pleadings, • declarations; or affidavits, the district court cannot deny the movant's motion to modify without first holding an evidentiary hearing. .Rooney, 109 Nev. at 542, 853 P.2d at 124. It generally therefore does not matter if postjudgment discovery has occurred because courts are only concerned, as discussed above, with what the movant has alleged in his or her verified pleadings, declarations, and affidavits. For this reason, postjudgment discovery is generally not permitted in child custody cases without setting a subsequent evidentiary hearing because what is discovered should not be considered in the district court's Rooney analysis.. See supra note 2. But compare NRCP 16.21(b)(2) (recognizing postjudgment discovery may be permitted for good cause), with supra discussion in text between notes 9 and 10 (adopting an exception wherein a district court rnay rely on evidence the nonmovant presents that "conclusively establish{esr the falsity of the .movarit's all.egations in determining if the rnovant presented a prim.a facie case for modification). Thus, under the ideal situation, the.district court would ha:ve reviewed Lisa's motion, found that she had demonstrated 6. prima facie, case for modification, ordered • postjudgment discovery regarding Lisa's COURT OF APPEAI-S OF NEVADA (0) [947B

no reasonable judge could. have found that Lisa failed to demonstrate a prima facie case for modification had that judge accepted the allegations Lisa provided in her declarations as true. From the record, it appears that Caleb argued., and the district court may have believed, that Lisa's declarations or offers of proof contained allegations that were either cumulative, impeaching, or inappropriate to consider in evaluating whether there had been a substan.tial change of circumstances. As discussed above, the court would. not have needed to con.sider any insufficient allegations in deterrnining whether Lisa demonstrated a prima facie case for modification. But in the order denying Lisa's motion to modify, the district cOurt did not provide specific findings or adequately explain why Lisa failed to demonstrate a prima facie case for modification. In modification of child.custody cases; district courts must make specific findings and provid:e adequate explanation for their child custod.y determinations. Davis Ewalefo. 131 Nev. 445, 452, 352 P.3d 1139. 1143 (2015). The supreme court requires these findings, and especially the explanation, for two reasons: (1) to aid appellate review by ensurir.g the court made its determination for appropriate reasons. and (2) to help parents understand why the motion was decided the way that it was because it may affect future motions to modify custody.15 See id. at 452, 352

allegations, then . set an evidentiary hearing for , Lisa to pfove those allegations. thImportantly, when a district court denies a motion to modify custody under Rooney, which is a threshold determination, it has the same practical. effect as a denial on the merits: custody is not Modified. Davis's purposes in requiring findings and an adequate explanation are no 1.ess served in the- Rooney context, because in either case parents will not u.nderstand what COURT OF APPEALS OF NEVADA (0) 1947E 410*.

P.3d at 1143-44. And without these findings and explanation,' 6 appellate courts—and parents--are relegated to speculate about how and why the court ruled as it did, which we will not do. Cf. Somee'v. State, 124 Nev. 434, 442, 187 P.3d 152, 158 (2008); We now hold that the district coUrt must provide an adequate explanation when it denies a motion to modify custody without holding an evidentiary hearing given that su.:-.:11 a denial has the same practical implications for a movant as a denial on the merits. See supra note 1.6; cf. NRCP 52(a)(3) ("The court is not required td state findings or conclusion§ when ruling on a motion under Rule 12 or 56 or. . on. any oth.er motion.. The court should, however, state on the record the reasons for granting or denying a motion." (emphasis added)). And when a district court fails to provide an adequate explanation for its 'denial, it makes it difficult for this (01 1947S

court to review the district court's decision.I 7 An explanation that follows the framework of Davis is certainly adequate, but the court gave no such explanation in this case—just a concluSory one that mirrored Rooney's legal requirements. Additionally, even thou.gh Lisa demonstrated a prima facie case requiring the court to hold an evidentiary hearing, we Strongly reiterate that the forrn of that evidentiary hearing—both in this case and. generally— is entirely within the district court's broad discretion. Arcella, 133 Nev. at 872, 407 P.3d at 346 ("While these circumstances obligated the district coUrt to conduct an evidentiary hearing, the form of that hearing remains within the district court's discretion."). For example, a district court may dictate when the hearing takes place, the arnount of discovery to take place before the hearing (if any), the time each party has to offer evidence, and the scope of the evidentiary hearing. See, e.g., id. (rioting that the court had discretion tO interview the child if it .fcund it appropriate under the circumstances); see also NRCP 16.215 (establishing procedures for child interview's a.nd testimony). And these determinations will be overturned on appeal only if the district court clearly abuses its discretion. Primm v. Lopes, 109 Nev. 502, 504, 853 P.2d 103, 104 (1993). CONCLUSION District courts wield 'substantial discretion in child custody cases. See NRS 125C.0045(1) This includ.es the discretion to deny a motion to modify custody without hol.ding an evidentiary hearing. Roon.ey,109 Nev.

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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 rnovant's 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.

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