134 Nev., Advance Opinion 149
IN THE SUPREME COURT OF THE STATE OF NEVADA
LESLIE LYNN MILLER, No. 69353
Appellant,
vs. FILED
BRETT ROBERT MILLER,
MAR 1 5 2018
Respondent.
ELIZABETH A. BROWN
SARRENE-COU
Appeal from a district court divorce decree and determi4 ion
of child support. Eighth Judicial District Court, Family Court Division,
Clark County; Charles J. Hoskin, Judge.
Reversed and remanded with instructions.
Pecos Law Group and.Jack W. Fleeman, Henderson,
for Appellant.
Christopher P. Burke, Las Vegas,
for Respondent.
Fine Carman Price and Michael P. Carman, Henderson,
for Amicus Curiae State Bar of Nevada, Family Law Section.
BEFORE THE COURT EN BANC.
OPINION
By the Court, HARDESTY, J.:
In this opinion, we address a matter of first impression: how to
interpret and apply Nevada's child support statutes where both parents
share joint physical custody of one child but one parent has primary
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physical custody of the other child. We provide guidance on how to calculate
child support in this type of custody arrangement. We further stress the
importance of the district court's duty to make sufficient findings of fact
when deviating from the statutory formula for child support calculations.
Appellant Leslie Miller and respondent Brett Miller are the
parents of two minor children. They divorced in 2015 and, through family
mediation, reached an agreement on almost all aspects of the divorce,
including custody of the children. They agreed to share joint physical
custody of one of their children, but Leslie has primary physical custody of
the other child because that child lives with Leslie and stays with Brett
every other weekend. The parents were unable, however, to reach an
agreement on child support. The district court determined that Brett was
to pay Leslie $345 in monthly child support. Leslie filed a motion for
reconsideration, to amend the judgment, and for findings of fact and
conclusions of law on the child support calculation, arguing that there was
no controlling Nevada authority governing a split custody situation like
theirs, the district court's $345 award fell below the statutory guidelines,
and the award was unreasonable given the parties' incomes and
circumstances. Additionally, at the hearing on Leslie's motion, Leslie
requested the district court to explain how it arrived at the amount of $345,
but the district court provided no calculations.
The district court denied Leslie's motion, finding that its $345
award was in the children's best interests. The court explained that it had
"run the numbers using the statutory percentages of 18% for one child and
25% for two children and given the comparative incomes, the deviation
factors permitted under NRS 125B.080(9), and all circumstances, the $345
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per month in child support is the appropriate figure." Leslie brings this
appeal challenging the district court's child support award.
DISCUSSION
On appeal, Leslie argues that the district court abused its
discretion by not providing specific findings of fact to explain the deviation
from the amount of child support owed under the statutory guideline. Leslie
further argues that the amount of child support is unreasonable under the
child support guidelines and based on the parties' custody arrangement and
respective incomes. Brett argues that there is no statute that provides a
guideline for determining child support in a custody situation like the
Millers', so the district court could not have abused its discretion. The
parties, the district court, and amicus curiae, the State Bar of Nevada
Family Law Section (FLS), have asked this court to determine the
appropriate formula for the calculation of child support in this type of
situation. The parties and FLS provide formulas based on their varying
interpretations of NRS 125B.070, the statute that provides the baseline
percentages of income for determining child support.
We have not previously considered the application of NRS
125B.070 to a split custody scenario where both parents share joint physical
custody of one child and one parent has primary physical custody of another
child. However, we are not without statutory guidance and jurisprudence.
Therefore, in this opinion, we analyze Nevada's statutory child support
framework and caselaw. Next, we consider the district court's
determination of the child support award in this case and the parties' and
FLS's interpretations of NRS 125B.070. Finally, we apply the appropriate
formula to the Millers' custody arrangement to clarify the steps district
courts must take when determining the appropriate child support amount.
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Nevada's child support framework
"[Qluestions of statutory construction, including the meaning
and scope of a statute, are questions of law, which [we] review[ ] de novo."
City of Reno v. Reno Gazette-Journal, 119 Nev. 55, 58,
63 P.3d 1147, 1148
(2003). NRS 125B.020(1) states that "[t]he parents of a child. . . have a
duty to provide the child necessary maintenance, health care, education and
support." This duty is defined in NRS 125B.070, which is the starting point
for calculating child support. In NRS 125B.070, the Legislature set forth a
formula for determining the "obligation for support," which is a flat rate
percentage of a parent's gross monthly income that each parent owes for the
support of their children based on the number of children they have.
"We acknowledge that the Nevada Legislature unanimously adopted
Assembly Bill 278 in 2017, which created the Committee to Review Child
Support Guidelines to examine Nevada's existing child support guidelines
and provide recommendations and revisions that "ensure that the
application of such guidelines results in appropriate awards of child
support." 2017 Nev. Stat., ch. 371, Legislative Counsel's Digest, at 2280;
A.B. 278, 79th Leg. (Nev. 2017). A.B. 278 "repeals the provisions of existing
law establishing the general formula for calculating child support." 2017
Nev. Stat., ch. 371, Legislative Counsel's Digest, at 2280. The current child
support statutes that establish the formula for calculating child support
include NRS 125B.070 and NRS 125B.080, which we address in depth in
this opinion. Pursuant to KB. 278, "the repeal of such provisions becomes
effective on the effective date of the regulations adopted by the
Administrator [of the Division of Welfare and Supportive Services of the
Department of Health and Human Services] establishing child support
guidelines." Id. Any discussion in this opinion related to the child support
statutes is based on the statutes in effect at the commencement of this
litigation in 2015, and we recognize that the statutory framework may
change based on the new child support guidelines.
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NRS 125B.070(1)(b) explains the "obligation for support" as
"Obligation for support" means the sum certain
dollar amount determined according to the
following schedule:
(1) For one child, 18 percent;
(2) For two children, 25 percent;
(3) For three children, 29 percent;
(4) For four children, 31 percent; and
(5) For each additional child, an additional 2
percent,
of a parent's gross monthly income, but not more
than the presumptive maximum amount per month
per child set forth for the parent in subsection 2 for
an obligation for support determined pursuant to
subparagraphs (1) to (4), inclusive, unless the court
sets forth findings of fact as to the basis for a
different amount pursuant to subsection 6 of NRS
125B.080.
Accordingly, the plain language of NRS 125B.070 demonstrates that the
"obligation of support" for two children is 25 percent of each parent's income.
The percentage of income is determined without regard to the custody
arrangements the parents have with their children See NRS 125B.070; see
also Wright v. Osburn, 114 Nev. 1367, 1368-69,
970 P.2d 1071, 1072 (1998).
In Wright, we held that NRS 125B.020 and NRS 125B.070, read together,
require each parent to provide a minimum level of child support depending
on the number of children, and "ft] his requirement is independent of the
custody arrangements." 114 Nev. at 1368, 907 P.2d at 1072. Our holding
in Wright made clear that each parent's obligation of support is calculated
first, and then the physical custody arrangement governs how much
support a parent owes to the other parent. Id. at 1368-69, 907 P.2d at 1072.
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In Barbagallo v. Barbagallo, we acknowledged that the
definition of "obligation of support" contained in NRS 125B.070 was
"designed to relate to the traditional and once quite typical post-divorce
situation in which one parent (usually the mother) is the 'custodial parent'
and the other parent (usually the father) is the 'noncustodial parent." 105
Nev. 546, 548,
779 P.2d 532, 534 (1989), overruled on other grounds by
Wright, 114 Nev. at 1368,
970 P.2d at 1072. However, upon review of the
legislative history for NRS 125B.070, the originally proposed legislation
included a formula for joint physical custody arrangements and examples
of calculations for determining child support where the parents have two
children but each parent does not have the children for exactly 50 percent
of the time. 2 Hearing on A.B. 424 Before the Assembly Judiciary Comm.,
Exhibit E, 64th Leg. (Nev., April 13, 1987). While those calculations were
removed from the final bill, we conclude, as the court in Barbagallo did, that
the definition of "obligation for support" is broad enough to apply to custody
arrangements other than primary physical custody. 105 Nev. at 548-49,
779 P.2d 532 at 534.
We have previously applied the formula set forth in NRS
125B.070 to two types of custody arrangements. The first type is where one
parent has primary physical custody of a child. In such situations, the
application of NRS 125B.070 is straightforward: the noncustodial parent
must pay the custodial parent the appropriate percentage of his or her gross
monthly income. Bluestein v. Bluestein, 131 Nev. 106, 109 n.1,
345 P.3d
2 Each of the calculations included in the legislative history begins
with calculating the parents' obligation for support under NRS 125B.070,
regardless of the custody arrangement of the parents. See Hearing on A.B.
424 Before the Assembly Judiciary Comm., Exhibit E, 64th Leg. (Nev., April
13, 1987).
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1044, 1046 n.1 (2015). The second type of custody arrangement is where
the parents share joint physical custody of a child. Wright, 114 Nev. at
1368-69,
970 P.2d at 1072. In a joint physical custody arrangement, "the
higher-income parent is obligated to pay the lower-income parent the
difference between the parents' statutorily calculated child support
amounts." Bluestein, 131 Nev. at 109 n.1, 345 P.3d at 1046 n.1. 3
Under both of these custody arrangements, the next step in the
child support calculation after determining each parent's obligation for
support is to ensure the obligation for support does not exceed the
"presumptive maximum amount per month per child" set forth in NRS
125B.070(2). Wesley v. Foster, 119 Nev. 110, 113,
65 P.3d 251, 253 (2003)
("The Wright offset should take place before, not after, application of the
cap.").
Finally, upon completion of each of those steps, the district
court has discretion under NRS 125B.080 to adjust the child support
amount it derived from its calculations under NRS 125B.070. Subsection 9
of NRS 125.080 lists 12 factors for the district court to consider when
3 Though Wright did not reference NRS 125B.070's legislative history,
the calculation articulated in Wright is the same formula for joint physical
custody that was originally included in the early draft of A.B. 424. Compare
Hearing on A.B. 424 Before the Assembly Judiciary Comm., Exhibit D, 64th
Leg. (Nev., April 13, 1987) ("The court shall, if. . . there is an equal division
of the physical custody of a child between both parents, direct the parent
whose gross monthly income is higher to pay an amount of support each
month which is equal to the difference between his obligation for support
and the obligation for support of the other parent . . . ."), with Wright, 114
Nev. at 1369,
970 P.2d at 1072 (concluding that in joint physical custody
scenarios, the district court must "[c] alculate the appropriate percentage of
gross income for each parent; subtract the difference between the two and
require the parent with the higher income to pay the parent with the lower
income that difference").
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deviating from the statutory amount of child support. If the court chooses
to deviate from the statutory amount of support, "the court shall . . . [s] et
forth findings of fact as to the basis for the deviation from the formula; and
[p]rovide in the findings of fact the amount of support that would have been
established under the applicable formula." NRS 125B.080(6)(a)-(b)
(emphasis added); Anastassatos v. Anastassatos, 112 Nev. 317, 321,
913
P.2d 652, 654 (1996) (stating that "the district court's failure to set forth
findings of fact as to the basis for the deviation constitutes reversible
error").
The district court's, parties', and FLS's interpretations of NRS 125B.070
We are now asked to determine the appropriate allocation of
child support where one parent has primary physical custody of one child
but both parents share joint physical custody of another child. The district
court, parties, and FLS have each interpreted NRS 125B.070 differently,
and their interpretations have produced child support awards ranging in
amounts from $345 to $832.19. We begin by reviewing the district court's
award of child support in this case. Next, we consider the parties' and FLS's
varying interpretations of NRS 125B.070.
"Matters of. . . support of minor children of parties to a divorce
action rest in the sound discretion of the trial court, the exercise of which
will not be disturbed on appeal unless clearly abused." Flynn v. Flynn, 120
Nev. 436, 440,
92 P.3d 1224, 1227 (2004) (internal quotation marks
omitted). We review a district court's child support determination for abuse
of discretion and "will uphold the district court's determination if it is
supported by substantial evidence." Id. Although a district court has
discretion in awarding child support, the district court must follow the
statutory guidelines when calculating the initial child support award and
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when deviating from the statutory calculations. See NRS 125B.080(6);
Wallace v. Wallace, 112 Nev. 1015, 1021,
922 P.2d 541, 544-45 (1996).
In this case, the district court awarded child support to Leslie
in the amount of $345 a month. To explain this award, the district court
stated that it had "run the numbers using the statutory percentages of 18%
for one child and 25% for two children and given the comparative incomes,
the deviation factors permitted under NRS 125B.080(9), and all
circumstances, the $345 per month in child support is the appropriate
figure." First, it is clear that the district court erred by considering "18%
for one child and 25% for two children" because the Millers have two
children. Therefore, as discussed above, under NRS 125B.070(1)(b)(2), the
district court should have determined each parent's support obligation by
calculating 25 percent of each parent's income. In addition to this error, the
district court did not state the amount of the support obligation it calculated
based on its interpretation of NRS 125B.070, before the deviation. See NRS
125B.080(6)(b) (stating that the district court shall "[Nrovide in the findings
of fact the amount of support that would have been established under the
applicable formula").
Finally, the district court did not include in its findings of fact
the deviation factors it applied to result in an award of $345, as required by
NRS 125B.080(6). Therefore, it is completely unclear how the district court
arrived at the amount of $345. Accordingly, we reverse the district court's
child support award because of the failure to make sufficient factual
findings. See Davis v. Ewalefo, 131 Nev., Adv. Op. 45, 352 P.3d 1139, 1142
4During the hearing, the district court stated that it did not bring the
notes showing the calculations for the sum of $345 to the hearing, and no
calculations were included in the written order that followed.
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(2015) (explaining that, while a district court's discretionary decisions are
generally reviewed deferentially, "deference is not owed to. . . findings so
conclusory they may mask legal error"). We take this opportunity to
consider the appropriate application of NRS 125B.070 to the Millers'
particular custody arrangement, as we acknowledge that it is not entirely
clear from the statute, given the varying formulas proposed by the parties
and FLS.
FLS urges this court to interpret NRS 125B.070 as defining a
parent's child support obligation based on each parent's custody
arrangement with an individual child. Thus, FLS would calculate Leslie's
obligation for support at 18 percent of her income because in its view, she
only has a child supportS obligation for the child she shares jointly with
Brett. FLS would then calculate Brett's obligation for support at 25 percent
of his income, and offset the two. At the time the parties filed their financial
disclosure forms, Leslie indicated that her gross monthly income was
$3,986.66 and Brett's gross monthly income was $4,304.97. Thus, Leslie's
obligation of support under FLS's method would be $717.60, and Brett's
obligation of support would be $1,076.24, which, when offset, results in a
child support award of $358.64.
The problem with this method is FLS's starting point for
calculating the obligation for support under NRS 125B.070. The plain
language of NRS 125B.070 sets forth the parent's obligations of support
based on the number of children they have, not based on the custody
arrangement. 5 Because a parent's child support obligation based on the
5 We note that neither the parties nor FLS provides authority that
allows the district court to calculate a parent's obligation of support under
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number of children a parent has is independent of the child custody
arrangement, FLS's formula does not align with the plain language of the
statute. Not only does FLS's calculation misapply the flat rate percentage
defined in NRS 125B.070, it also offsets the awards under Wright, which is
incorrect where a parent has primary physical custody of a child. See 114
Nev. at 1368-69,
970 P.2d at 1072 (offsetting the parents' support
obligations when the parents share joint physical custody).
Likewise, Brett's interpretation and one of Leslie's
interpretations begin with calculating each parent's obligation of support
based on one child, which is contrary to the plain language of the statute. 6
NRS 125B.070 based on the parent's individual custody arrangement with
each child. Rather, this application of NRS 125B.070 is contrary to the plain
language of NRS 125B.070 and our prior interpretation of the statute in
Wright.
6 Step one of these approaches is calculating 18 percent of each
parent's gross monthly income: 18 percent of Leslie's income is $717.60, and
18 percent of Brett's income is $774.89.
Under Leslie's approach, her obligation is subtracted from Brett's
under Wright for the child they share jointly, which equals $57.30. Next,
Leslie adds that amount to the full support obligation owed for the child
whom she has primary physical custody, $774.49, which results in a child
support award of $832.19.
Under Brett's approach, Leslie's obligation is subtracted from Brett's,
and then Brett's income is multiplied by 7 percent to account for the
difference between 18 and 25 percent in step one. This results in a child
custody support award of $358.64. This approach not only incorrectly
applies NRS 125B.070, but also incorrectly offsets the two support
obligations. Under Wright, the district court only offsets the amount of child
support when the parents share joint physical child custody. 114 Nev. at
1368-69,
970 P.2d at 1072.
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We agree, however, with Leslie's other interpretation, which begins with
NRS 125B.070 and applies 25 percent to each parent's income to ascertain
each parent's obligation of support. We conclude that this interpretation,
which we set forth below, provides the appropriate application of NRS
125B.070 to a custody situation where both parents share joint physical
custody of one child and one parent has primary physical custody of the
other child.
Application of Nevada's child support framework to the Millers' custody
arrangement
In order to provide guidance to the district court, we now apply
the child support guidelines to the Millers' custody arrangement. The first
step in calculating child support is to determine each parent's child support
obligation under NRS 125B.070. Here, Leslie and Brett have two children.
Therefore, Leslie's and Brett's obligations for child support are 25 percent
of their respective gross monthly incomes. MRS 125B.070(1)(b)(2).
Applying the 25-percent obligation for support to each parties'
income results in a $996.67 support obligation for Leslie and a $1,076.24
support obligation for Brett. Because this amount is for two children, we
conclude that the next appropriate step is to divide the parents' respective
support obligations by two to determine the amount of support owed per
child. Leslie therefore owes $498.34 per child, and Brett owes $538.12 per
child. Because Leslie and Brett share joint physical custody of one child,
those amounts are offset pursuant to Wright, resulting in Brett owing Leslie
$39.78 per month for the child they jointly share. 114 Nev. at 1368-69,
970
P.2d at 1072. Because Leslie has primary physical custody of the other
child, the amount of support Brett owes for that child ($538.12) is not offset.
Thus, the amount of child support that Brett owes pursuant to NRS
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125B.070 for both children would be $577.90, which falls within the
presumptive maximum amount of support as defined in NRS 125B.070. 7
After calculating this amount, the district court has discretion
to deviate from that amount based on the factors in NRS 125B.080. We
reiterate that in doing so, the district court must sufficiently explain its
findings of fact, the deviation factors considered, and the amount of the child
support award absent any deviation. See NRS 125B.080.
CONCLUSION
This case requires that we consider the appropriate application
and interpretation of NRS 125B.070 to a child custody arrangement where
both parents share joint physical custody of one child but one parent has
primary physical custody of the other child. We conclude that based on
7 We note that if Leslie and Brett had only one child for whom Leslie
had primary physical custody, Brett's child support obligation would be 18
percent of his gross monthly income, or $774.80 per month. See NRS
125B.070(1)(b)(1). Based on our interpretation of NRS 125B.070 as it
currently exists, Brett's child support obligation in this case for two children
should be $577.90. Thus, we recognize this anomaly since the framework
of NRS 125B.070 demonstrates that a parent's obligation of support
increases with each additional child. Though a parent's obligation
increases, it does not double with each additional child because some of the
costs involved with child-rearing are fixed costs. See Barbagallo, 105 Nev.
at 549,
779 P.2d at 535 (noting that some of the fixed expenses involved in
child-rearing include "rent, mortgage payments, utilities, car maintenance
and medical expenses"). Moreover, Brett's support obligation accounts for
the fact that he shares joint physical custody of one of the children. This
case and the parties' divergent arguments and calculations demonstrate
this is an important issue for the Committee to Review Child Support
Guidelines to consider. Because NRS 125B.070 does not address the split
custody situation presented by this case, the approach we set forth provides
a clear and workable formula that is consistent with our prior
jurisprudence, and thefl district court has discretion to increase this
statutorily based amount if it finds a deviation proper under NRS 125B.080.
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Nevada's child support statutes and our jurisprudence, the proper
calculation under NRS 125B.070 is to first determine each parent's support
obligations based on the flat rate percentage correlated with the number of
children the parents have. Next, the support obligation should be divided
based on the number of children the parents have. After the support
obligations are determined, the parents' obligations are offset for any
children they share jointly pursuant to Wright, and the offset amount shall
be added to the full amount of the child support obligation for the noncustodial parent. The district court must still ensure that the amount does
not exceed the presumptive maximum support amount in NRS 125B.070(2).
Finally, if the district court finds it appropriate, it shall apply the deviation
factors in accord with NRS 125B.080 and, in doing so, make sufficient
factual findings to explain the deviation. Accordingly, we reverse the
district court's child support award of $345 and remand with the foregoing
instructions.
We concur:
Cherry
Gibbons Pickering
ITOr/40---arm J. otas$9;4-1) J.
Parraguirre Stiglich
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