Major v. State

 0
                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                LARRY EDWARD MAJOR,                                      No. 62819
                Appellant,
                vs.
                THE STATE OF NEVADA,
                                                                                FILED
                Respondent.                                                         AUG 28 201ii
                                                                                TRACE K I iNCEMAN
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                                                                       BY       H - F DE
                             Appeal from a judgment of conviction, pursuant' to a guilty
                plea, of child abuse. Second Judicial District Court, Washoe County;
                Connie J. Steinheimer, Judge.
                            Affirmed.

                Jeremy T. Bosler, Public Defender, and John Reese Petty, Chief Deputy
                Public Defender, Washoe County,
                for Appellant.

                Catherine Cortez Masto, Attorney General, Carson City; Richard A.
                Gammick, District Attorney, and Jennifer P. Noble, Deputy District
                Attorney, Washoe County,
                for Respondent.




                BEFORE PICKERING, PARRAGUIRRE and SAITTA, JJ.

                                                  OPINION


                By the Court, PARRAGUIRRE, J.:
                             In this appeal, we consider whether a district court has
                jurisdiction to impose restitution to the State for the cost of child care in a
                child abuse case where a family court has already imposed an obligation
                on the defendant for the costs of supporting the child. We conclude that
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                the district court has jurisdiction to impose such restitution but that the
                district court must offset the restitution amount by the amount of the
                support obligation imposed by the family court.
                                                   FACTS
                            The State placed appellant Larry Major's daughter in the
                custody of Washoe County Social Services (Social Services) following his
                2012 arrest for child abuse. A family court hearing master ordered Major
                to pay child support in the amount of $100 per month directly to Social
                Services. A family court district judge affirmed that order. The child was
                in the care of Social Services for approximately seven months
                            Major entered a guilty plea to one felony count of child abuse.
                Social Services sought restitution in the amount of $20,362.07. Ida Peeks,
                a fiscal compliance officer for Social Services, testified that Social Services
                based this amount on the amount it charges other agencies for the cost of
                care provided to children placed in Kids Kottage, where Social Services
                housed Major's daughter. Social Services bases this rate on the costs of
                running Kids Kottage, including overhead and salaries. Peeks also
                testified that Social Services may receive reimbursement for the cost of
                care from the federal government for children who meet certain eligibility
                requirements. Peeks did not know whether Major's daughter met these
                requirements or if Social Services received any reimbursement for her
                care.
                            Major objected to the amount sought by Social Services on the
                basis that the family court had already entered a cost-of-care order.
                Following oral argument on the issue, the district court concluded that the
                family court's order, which was based on Major's ability to pay, did not
                affect the jurisdiction of the district court as to its criminal restitution
                order. Accordingly, the district court ordered Major to pay restitution to
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                 Social Services in the amount of $19,662.07. This amount reflected an
                 offset of $700 for the amount Major incurred from the support obligation
                 imposed by the family court. Major now brings this appeal.
                                                DISCUSSION
                             On appeal, Major argues that: (1) the district court lacked
                 jurisdiction to order him to pay restitution for the total cost of his
                 daughter's care because the family court previously ordered him to pay
                 $100 per month for the cost of care; and (2) if the district court had
                 jurisdiction, there was insufficient evidence to support the amount of the
                 restitution award.
                 The district court had jurisdiction to order Major to pay restitution
                             Major argues that the district court lacked jurisdiction to
                 order him to pay $19,662.07 in restitution to Social Services for the cost of
                 his daughter's care because the family court had already ordered him to
                 pay child support to Social Services in the amount of $100 per month.
                 This is an issue of first impression in Nevada.
                             According to Major, the district court was improperly
                 modifying or reviewing the family court's support order when it imposed
                 restitution. We disagree with that characterization. Family courts have
                 original, exclusive jurisdiction over matters affecting the familial unit,
                 including child support. NRS 3.223(1); Landreth v. Malik, 127 Nev. ,
                    , 

 (2011). We have held that family court judges "are
                 district court judges with authority to preside over matters outside the
                 family court division's jurisdiction." Landreth, 

 P.3d
                 at 164.
                             Although district courts lack jurisdiction to review or modify
                 actions of other district courts, Rohlfing v. Second Judicial Dist. Court,
                 

, 

 (1990), we conclude that the district
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                court's order imposing restitution did not constitute a review or
                modification of the family court's support obligation.
                            In this case, the family court lacked the power to grant
                restitution to compensate for the costs of child care imposed on the State
                by Major's criminal acts, as the power to grant restitution to crime victims
                is statutory, not inherent to a district court. Martinez v. State, 

, 

 (1999) (quoting State v. Davison, 

 (Wash. 1991)). NRS 176.033(1)(c) provides that a sentencing court
                may award restitution to the victims of a crime upon a criminal conviction.
                Thus, although a family court judge has the same authority as a district
                court judge, NRS 176.033(1)(c) limits the power of a district court judge to
                award restitution to victims of crimes to the sentencing phase of a
                criminal proceeding.
                            Statutes also circumscribe a family court's authority to award
                child support. NRS 125B.070 and NRS 125B.080 provide that the amount
                of a parent's support obligation is calculated based on the gross monthly
                income of the parent or a minimum payment of $100. This amount is
                presumed to be sufficient to meet the basic needs of the child. NRS
                125B.080(5). The purpose of child support is to prevent the child from
                experiencing the effects of poverty and becoming a charge of the State,
                Rodriguez v. Eighth Judicial Dist. Court, 

, 

 (2004), and there is no statutory authority for increasing the amount
                where the parent's support obligation arose from a criminal act.
                            The purpose of restitution in the context of a criminal case,
                however, is to compensate a victim for costs arising from a defendant's
                criminal act. Martinez v. State, 

, 

                (2004). Although we have recognized that there are limited circumstances

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                wherein the State may be considered the victim of a crime for purposes of
                restitution, see Igbinovia v. State, 

, 

 (1995) (concluding that a police department was not entitled to
                restitution as a victim for the cost of setting up a drug transaction), we
                have held that the State was a victim for purposes of awarding restitution
                in a case where the defendant was convicted of abusing his children and
                the State incurred expenses for the medical and foster care of the children.
                Roe v. State, 

, 

 (1996).
                              Accordingly, only the district court during the sentencing
                phase of the criminal trial had the power to grant restitution to the State
                for the total cost imposed on it by Major's criminal act. Nevertheless, this
                created an overlap between the family court's authority to impose a
                support obligation and a district court's authority to impose restitution as
                part of a criminal sentence.   See Rohlfing, 

, 

. Such an overlap need not undermine the jurisdiction of either the
                family court or the sentencing court. In the current case, where the
                support obligation and the restitution arose from the same occurrence and
                compensate for overlapping expenditures, we note with approval that the
                district court offset the restitution amount by the amount of the support
                obligation.
                              Accordingly, we conclude that the district court had
                jurisdiction to award restitution to the State for the cost of care for the
                victim of Major's crime to the extent that the district court's order did not
                overlap with the existing support obligation imposed by the family court.




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                Sufficient evidence supports the restitution award
                            Major next argues in the alternative that we should remand
                for a hearing to establish the actual cost of care for his daughter. We
                conclude that this contention lacks merit.
                            NRS 176.033(1)(c) provides that a district court may impose
                restitution at sentencing for the victims of crimes. Social Services can be a
                "victim" for purposes of restitution. Roe, 

, 

. Although we have cautioned sentencing courts to "rely on reliable
                and accurate evidence in setting restitution," a defendant is not entitled to
                a full evidentiary hearing at sentencing. Martinez v. State, 

,
                

 (1999). Thus, "[silo long as the record does not
                demonstrate prejudice resulting from consideration of information or
                accusations founded on facts supported only by impalpable or highly
                suspect evidence, this court will refrain from interfering with the sentence
                imposed." Silks v. State, 

, 

 (1976).
                            At sentencing, Peeks testified that Social Services based the
                cost-of-care rate on the total cost of running Kids Kottage. Peeks also
                testified that the federal government provides reimbursement of up to 56
                percent of the cost of care for certain eligible children. She did not know,
                however, whether Social Services received such a reimbursement for
                Major's daughter's care. The district court required Social Services to
                notify the district court if it did receive such a reimbursement in order to
                allow the district court to amend the restitution order to reflect the
                reimbursement. Major did not present any evidence that Social Services
                actually received such a reimbursement.
                            We conclude that the evidence presented by Social Services for
                the cost of care is sufficient to support the district court's order. Although
                the question remains whether Social Services received a reimbursement,
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                    Major makes no showing there actually was such a reimbursement, and
                    the district court appears to have imposed on Social Services a continuing
                    obligation to notify the district court if there was a reimbursement to
                    allow the court to revise the restitution order. Given these circumstances,
                    we affirm the judgment of conviction.




                                                        Parraguirre




                    We concur:


                             tPeoleet.

                                                   J.
                    Saitta




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