134 Nev., Advance Opinion 21
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
SANDRA LYNN NANCE, No.-72454
Appellant,
vs.
- FILED
CHRISTOPHER MICHAEL FERRARO, APR 0 5 2018
Respondent. ETH A. BROWN
BM« COURT
liht s
Appeal from a district court order granting a motion to'Inodify
child custody and relocate a minor child. Eighth Judicial District Court,
Family Court Division, Clark County; Denise L. Gentile, Judge.
Reversed and remanded.
McFarling Law Group and Emily McFarling, Las Vegas,
for Appellant.
Hutchison & Steffen, LLC, and Michael K. Wall and Shannon R. Wilson,
Las Vegas,
for Respondent.
BEFORE SILVER, C.J., TAO and GIBBONS, JJ.
OPINION
By the Court, SILVER, C.J.:
In this appeal, we consider whether the district court in a
custody modification and child relocation action properly granted a motion
in limine to exclude, among other things, evidence of domestic violence
under McMonigle v. McMonigle, 110 Nev. 1407,
887 P.2d 742 (1994), and
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Castle v. Simmons, 120 Nev. 98,
86 P.3d 1042 (2004). 1 Respondent
Christopher Ferraro moved to modify custody and relocate the parties'
minor child, and when appellant Sandra Nance opposed the motion,
Christopher filed a motion in limine to exclude facts that occurred before
the prior custody order was entered. The district court granted the motion
in limine under McMonigle and Castle, and thereafter determined the
parties had been exercising joint physical custody and granted
Christopher's motion.
To succeed on a motion to modify custody, a party in a joint
physical custody arrangement must show that modification is in the child's
best interest; but if the opposing party has primary physical custody of the
child, the movant must show there has been a substantial change in
circumstances affecting the welfare of the child and that modification is in
the child's best interest. Rivero v. River°, 125 Nev. 410, 430,
216 P.3d 213,
227 (2009). Read together, McMonigle and Castle hold that a party seeking
to modify primary physical custody may not use evidence of domestic
violence known to the parties or the court when the prior custody order was
entered to show a substantial change in circumstances warranting
modification. McMonigle, 110 Nev. at 1408,
887 P.2d at 743; Castle,
120
Nev. at 105,
86 P.3d at 1047. Because questions regarding the scope and
application of McMonigle and Castle continue to come before this court, we
take this opportunity to clarify the law.
The threshold issue for this court is whether McMonigle and
Castle also prevent parties from relying on previously known domestic
violence evidence to demonstrate modification is not in the child's best
1 We note that McMonigle was overruled in part by Castle, as
discussed below. Castle, 120 Nev. at 105,
86 P.3d at 1047.
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interest. We thereafter consider whether the district court abused its
discretion by determining the parties shared joint physical custody and
granting Christopher's motion to modify custody and relocate the child. We
conclude McMonigle and Castle do not bar the district court from reviewing
the facts and evidence underpinning its prior rulings or custody
determinations in deciding whether the modification of a prior custody
order is in the child's best interest. These decisions likewise do not prohibit
parties from presenting previously known domestic violence evidence
defensively to show modification is not in the child's best interest. As a
result, we conclude the district court abused its discretion by granting the
motion in limine We further conclude the district court abused its
discretion by thereafter determining the parties shared joint physical
custody and granting Christopher's motion to modify custody and relocate
the minor child without considering the domestic violence evidence in
determining the child's best interest.
FACTS AND PROCEDURAL HISTORY
Sandra Nance and Christopher Ferraro have one minor child,
born in 2008. Sandra currently resides in Las Vegas, and Christopher
resides in New York. The parties' relationship has long been tumultuous,
particularly regarding custody and whether the minor child should reside
in Nevada or New York. As relevant to this appeal, prior to the parties'
divorce, Sandra alleged that Christopher committed acts of domestic
violence and child abuse against her and one of her other children. Child
Protective Services (CPS) investigated these allegations, and Sandra
represented to the district court that CPS substantiated some of her claims.
Then, in the spring of 2011, the parties stipulated to joint legal custody of
the minor child, with Sandra being the primary residential parent and
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Christopher having parenting time. At the time of that stipulation, the
parties were still contemplating reconciliation.
The parties' relationship continued to deteriorate, however, and
as a result of their ongoing co-parenting problems, the district court ordered
the parties to undergo a custody evaluation in November 2011. The
following March, the district court thereafter considered and adopted the
recommendations in that evaluation and ordered Christopher to
temporarily exercise his parenting time with the minor child in Nevada
while Sandra and Christopher worked with a parenting coordinator and
completed extensive parenting classes. In November 2012, the parties
entered into a stipulated parenting plan, which the district court confirmed,
and in which both agreed to share what they termed joint legal and physical
custody. The court ordered that Nevada was the child's home state within
the terms of the Uniform Child Custody Jurisdiction and Enforcement Act.
See NRS 125A.005-.585. Thereafter, the child resided with Sandra in
Nevada, subject to Christopher exercising parenting time in New York.
In 2015, shortly before the child entered the first grade,
Christopher moved the district court to modify the November 2012 order
and sought primary physical custody, including permission to relocate the
child to New York. Sandra opposed Christopher's motion, arguing she had
primary physical custody of the child and Christopher had not shown a
substantial change in circumstances since November 2012. She further
argued that Christopher had not demonstrated relocation was warranted
under Nevada law. Sandra pointed to the domestic violence presumption
and the child's best interest, referencing the custody evaluation and
evidence of Christopher's domestic violence. Christopher then filed a
motion in limine seeking to bar all evidence "relative to the facts and
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circumstances existing between the parties prior to the [November 20121
custody order." Christopher argued Sandra's evidence was outdated and
barred by McMonigle, Castle, and the rules of evidence. Sandra opposed
Christopher's blanket motion in limine, specifically arguing that the prior
custody evaluation and evidence of Christopher's domestic violence and
child abuse, including CPS reports and eyewitness testimony, was both
relevant and not barred by McMonigle or Castle.
The district court granted Christopher's motion in limine, first
citing McMonigle. According to the district court minutes, the court barred
evidence of the domestic violence allegations "unless [the allegation] was
unknown to Plaintiff. . . or unknown to the Court at the time of the last
order, as prescribed by Castle v. Simmons." The district court advised that,
if Sandra attempted to raise domestic violence evidence, Christopher would
bear the burden of proving that the parties or the court previously
considered that evidence.
Following an evidentiary hearing, the district court granted
Christopher's motion to modify joint custody in favor of primary physical
custody and granted his motion to relocate the child to New York. In so
doing, the district court concluded that, as a matter of law, the parties had
been exercising joint physical custody over the child and made detailed
findings regarding the child's best interest. The district court separately
concluded that even if Sandra had been exercising primary physical
custody, changed circumstances and the best interest considerations still
supported modifying custody. 2 This appeal followed.
2 In determining that circumstances affecting the child's welfare had
changed since the prior custody determination, the court relied on the
child's decreased need for weekly therapy; the child's age and the
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ANALYSIS
On appeal, the parties ultimately contest whether the district
court properly granted Christopher's motion to relocate the minor child. At
a fundamental level, however, the parties disagree about the nature of their
custody arrangement at the time Christopher brought his motion and
whether the district court properly granted the motion in limine excluding
Sandra's evidence of domestic violence. 3 These issues are interrelated, as
the district court must consider evidence relevant to the child's best interest
when determining what custody arrangement is actually in effect and
whether modification of that arrangement is warranted. See Bluestein v.
Bluestein, 131 Nev. 106, 109,
345 P.3d 1044, 1046 (2015). We therefore
begin our analysis by addressing the motion in limine ruling before turning
to the district court's determination that the parties exercised joint physical
custody and its subsequent decisions regarding custody modification and
relocation.
Standard of review
We review the district court's evidentiary decisions and custody
determinations for an abuse of discretion. Castle, 120 Nev. at 101,
86 P.3d
at 1045 (noting we review custody determinations for an abuse of
discretion); State ex rel. Dep't of Highways v. Nev. Aggregates & Asphalt Co.,
importance of extracurricular activities, socialization, and better
educational opportunities in New York; Sandra's failure to ensure her oldest
child successfully completed high school on time; and the changes in
Christopher's career.
3 Christopher also contends Sandra waived her argument that the
court improperly barred her evidence by failing to try to introduce such
evidence below. This argument is without merit as the district court barred
Sandra from raising that evidence below.
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92 Nev. 370, 376,
551 P.2d 1095, 1098 (1976) (reviewing a decision on a
motion in limine for an abuse of discretion). Questions of law, however, we
review de novo. Rennels v. Rennels, 127 Nev. 564, 569,
257 P.3d 396, 399
(2011) (noting we review questions of law de novo).
The motion in limine
In granting the motion in limine and excluding Sandra's
evidence, the district court relied on McMonigle and Castle. These cases
both addressed district court decisions that modified primary physical
custody. See McMonigle, 110 Nev. at 1408-09,
887 P.2d at 743-44; Castle,
120 Nev. at 103-06,
86 P.3d at 1046-48. In McMonigle, the supreme court
reinforced long-standing Nevada law holding that a court may modify
primary physical custody only where a party's circumstances have
materially changed since the last custody order was entered. 110 Nev. at
1408-09,
887 P.2d at 743-44. In so doing, the court held that events that
took place before the last custody order was entered were inadmissible to
show that circumstances have changed. Id.
In Castle, the supreme court revisited McMonigle's general rule
that previously existing evidence is inadmissible to show a change in
circumstances, and clarified that an exception to this rule exists if the
evidence was previously unknown to the parties or the court, particularly
where the evidence at issue is evidence of domestic violence. 120 Nev. at
104-05,
86 P.3d at 1046-47. There, the supreme court addressed a postdivorce decree order that granted a father's motion to modify custody based
on newly discovered evidence that the mother previously engaged in acts of
domestic violence against the children. Id. at 100-01,
86 P.3d at 1044-45.
The court considered whether modification was proper where the facts
giving rise to the modification existed before the parties divorced. Id. at
101,
86 P.3d at 1045. Ultimately, the court concluded that, although the
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domestic violence occurred prior to the parties' divorce, the res judicata
doctrine "should not be used to preclude parties from introducing evidence
of domestic violence that was unknown to a party or to the court when the
prior custody determination was made." Id. at 105,
86 P.3d at 1047.
In adopting this modified rule, Castle specifically recognized
that courts must review domestic violence evidence when determining the
child's best interest. 120 Nev. at 105-06,
86 P.3d at 1047-48. The Castle
opinion went on to state that the district court "must hear all information
regarding domestic violence in order to determine the child's best interests."
Id. at 105,
86 P.3d at 1047. Noting that domestic violence can naturally be
difficult to discover, the supreme court further explained that the district
court "should not be precluded from considering [newly discovered domestic
violence evidence] simply because it was not previously raised" and held
that "[elven previously litigated acts of domestic violence may need to be
reviewed if additional acts occur." Id. at 105-06,
86 P.3d at 1047-48.
However, the court further noted that the doctrine of res judicata would still
prevent "parties from relitigating isolated instances of domestic violence
that the court has previously examined." Id. at 106 n.22,
86 P.3d at 1048
n.22.
The rule adopted in McMonigle and later modified by Castle
stems from the principle that a party must show that a substantial change
in circumstances has occurred since the last custody order as a threshold
requirement for modifying primary physical custody. See McMonigle, 110
Nev. at 1408,
887 P.2d at 743; Castle,
120 Nev. at 104,
86 P.3d at 1046. As
recognized by the Castle court, this substantial change in circumstances
requirement is, itself, derived from res judicata principles, which prevent
dissatisfied parties from filing repetitive, serial motions until they obtain
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their desired result. Castle 120 Nev. at 103-04,
86 P.3d at 1046. And the
supreme court opinions applying this rule all do so only in the context of
addressing the propriety of a moving party seeking to demonstrate changed
circumstances based on evidence that existed at the time the prior custody
order was entered. 4 See, e.g., Castle, 120 Nev. at 104,
86 P.3d at 1046;
Hopper v. Hopper, 113 Nev. 1138, 1143,
946 P.2d 171, 174-75 (1997),
overruled in part by Castle, 120 Nev. 98,
86 P.3d 1042; McMonigle,
110 Nev.
at 1408,
887 P.2d at 743.
Thus, McMonigle and Castle applied their rule in the context of
a party seeking to use preexisting evidence to show a change in
circumstances supporting a motion to modify primary physical custody.
Here, however, the district court applied the rule to an opposition to a
motion to modify what the court later determined was a joint physical
custody arrangement, where the evidence was relevant to the best interest
requirement. As noted above, the threshold requirement for modifying
primary physical custody is that the moving party shows there has been a
substantial change in circumstances affecting the welfare of the child since
the last custody order was entered. Rivero, 125 Nev. at 430,
216 P.3d at
227. In contrast, a motion to modify joint physical custody turns solely on
4 In Mosley v. Figliuzzi,113 Nev. 51, 58,
930 P.2d 1110, 1115 (1997),
overruled in part by Castle, 120 Nev. at 105 n.20,
86 P.3d at 1047 n.20, the
supreme court applied the res judicata principles set forth in McMonigle in
the context of a motion to modify joint custody to conclude that, even under
a best interest analysis, parties may not file repetitive, serial motions
seeking to relitigate the same issues based on the same underlying facts.
The Castle court later overruled this decision "to the extent that it can be
read to preclude evidence of which the moving party was unaware when the
prior custody order was entered." Castle, 120 Nev. at 105 n.20,
86 P.3d at
1047 n.20.
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whether the modification is in the child's best interest. Id.; see also
Bluestein, 131 Nev. at 111-12, 345 P.3d at 1048 (holding that when the
parties dispute whether their custody agreement constitutes joint or
primary physical custody, the child's best interest is the "paramount"
consideration in the district court's determination of the true nature of the
parties' agreement).
The distinction between the substantial change in
circumstances and best interest requirements is a critical one and is
highlighted by our supreme court's 2007 decision in Ellis v. Carucci to revise
the test governing motions to modify primary physical custody. Under Ellis,
while a party moving to modify primary physical custody must still
demonstrate a substantial change in circumstances affecting the welfare of
the child, the court will only modify custody if the party also shows
modification is in the child's best interest. 5 See Ellis v. Carucci, 123 Nev.
145, 150-51,
161 P.3d 239, 242-43 (2007). Moreover, both the Legislature
and the Nevada Supreme Court have recognized that, in determining
physical custody of a minor child, the sole consideration is the best interest
of the child. NRS 125.480; 6 Ellis, 123 Nev. at 151-52,
161 P.3d at 243.
In the course of determining whether a custody modification is
in the child's best interest, courts must consider and articulate specific
5 This test replaced the standard set forth by Murphy v. Murphy, 84
Nev. 710, 711,
447 P.2d 664, 665 (1968), which required a party moving to
modify primary physical custody to show that the parent's circumstances
were materially altered and that the change would substantially enhance
the child's welfare. Ellis, 123 Nev. at 150,
161 P.3d at 242.
6 Since Christopher filed his motion, NRS 125.480(4) has been
repealed and replaced by NRS 125C.0035(4), which lists the same 12 best
interest factors enumerated in NRS 125.480(4).
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findings regarding the nonexhaustive list of best interest factors set forth
by statute. See NRS 125.480(4); Lewis v. Lewis, 132 Nev. „ 373 P.3d
878, 882 (2016). And in making this determination, a court must consider,
amongst the factors, "[wthether either parent or any other person seeking
custody has engaged in an act of domestic violence against the child, a
parent of the child or any other person residing with the child." NRS
125.480(4)(k). Indeed, the Castle court emphasized that courts "must hear
all information regarding domestic violence in order to determine the child's
best interests" and noted that our Legislature recognized the threat
domestic violence poses "to a child's safety and well-being" and created a
rebuttable presumption to this end: that awarding a parent physical
custody is not in the child's best interest if that parent has engaged in acts
of domestic violence. 120 Nev. at 105-06,
86 P.3d at 1047-48; see also NRS
125.480(5); NRS 125C.003(1)(c).
When a district court considers a motion to modify a prior
custody order, it logically follows that the court's evaluation of whether
modification is in the child's best interest will necessarily be informed by
the findings and conclusions that resulted in the prior custody
determination. As a result, it may at times be necessary for the district
court to review the evidence that underpinned its previous rulings to
determine whether modification of the existing arrangement is warranted.
This is especially true where, as here, issues of potential domestic violence
are involved. 7 Castle, 120 Nev. at 105-06,
86 P.3d at 1047-48.
7 Indeed, the Castle court recognized that, even in the changed
circumstances context, previously litigated instances "of domestic violence
may need to be reviewed if additional acts occur." Castle, 120 Nev. at 106,
86 P.3d at 1047-48.
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Moreover, broadly limiting the court's ability to consider
evidence that predates the latest custody order would be contrary to the
policy underlying Nevada's "one family, one judge" rule, which was enacted
to keep family cases before a single judge who would be familiar with all
facts and history in the case and be better informed when rendering
subsequent decisions. See, e.g., NRS 3.025(3); Hearing on A.B. 154 Before
the Assembly Committee on Judiciary, 70th Leg. (Nev., March 5, 1999)
(addressing the purpose of the rule). Further, to the extent that so limiting
the evidence could prevent the district court from determining whether a
party engaged in domestic violence in the course of considering what
custody arrangement is in the child's best interest, such a result flies in the
face of Nevada law requiring the district court to presume that it is not in
the child's best interest for an abuser to have custody. See NRS 125.480(5);
NRS 125C.003(1)(c).
That does not mean, however, that parties are free to relitigate
previously decided issues. See Castle, 120 Nev. at 105-06,
86 P.3d at 1047-
48; Mosley, 113 Nev. at 58-59,
930 P.2d at 1114-15 (reversing an order
modifying joint physical custody based on a best interest analysis where the
motion to modify relied on the same facts that existed when the previous
order was entered). 8 For example, if a district court determines that
allegations of domestic violence have not been proven in resolving a custody
dispute, a party cannot point to only the same set of facts surrounding this
8As noted above, Castle overruled Mosley to the extent that Mosley
purports to bar "evidence of which the moving party was unaware when the
prior custody order was entered." Castle, 120 Nev. at 105 n.20,
86 P.3d at
1047 n.20. And Castle further recognized that such would also apply to
evidence of which the district court was not aware. See id. at 105,
86 P.3d
1047-48.
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alleged instance of domestic violence to support a subsequent custody
modification. Similarly, if a district court finds that domestic violence
occurred and determines that the offending parent should only have
supervised parenting time with the child, the other parent cannot rely on
only this same instance of domestic violence to support a subsequent
modification to provide the offending parent with even less or no time with
the child Even in the context of opposing a motion to modify custody, a
party generally cannot relitigate prior instances of domestic violence the
court has previously addressed and decided.
But because a district court will necessarily need to consider the
factual basis underlying its prior decision in determining whether it should
be modified, it is axiomatic that, in opposing a motion to modify, the
nonmoving party can point to the facts and evidence on which the prior
order was based to demonstrate that, despite events following the prior
order, modification is not in the child's best interest. As noted above, even
under the changed circumstances analysis, Castle's provision that predecision evidence of domestic violence can be considered only if the parties
or the court were unaware of its existence or the extent of the offending
conduct applies only to limit what the party seeking a custody change can
present to demonstrate that changed circumstances supporting
modification exist. 9 Castle, 120 Nev. at 105,
86 P.3d at 1047.
°This is not to suggest that preexisting evidence can never be used
offensively by a party seeking to show custody modification is in the child's
best interest. We note that under Mosley, as modified by Castle, a moving
party could present preexisting evidence of domestic violence so long as it
was unknown to the parties or the court when the prior order was entered.
Castle, 120 Nev. at 105,
86 P.3d at 1047; Mosley,
113 Nev. at 58-59,
930 P.2d
at 115-16. And as consistent with Castle, even previously litigated evidence
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We now apply this framework to the issue before us. The record
demonstrates that Sandra intended to present the contested evidence to
support her position that custody modification was not in the child's best
interest. The record also shows that the district court did consider at least
some of this evidence in March of 2012 when it ordered the parties to
complete parenting classes, and it appears that this evidence weighed into
the court's decision to temporarily require that Christopher exercise his
parenting time with the child in Nevada pending completion of those
classes. In thereafter granting the motion in limine, however, the district
court concluded McMonigle and Castle barred Sandra from presenting
evidence that was known to the parties or the court at the time of the
November 2012 stipulation and order and excluded this same evidence from
its subsequent decisions.
We conclude the district court abused its discretion by granting
the motion in limine. Although the record is not entirely clear as to what
specific evidence Sandra sought to present or what evidence the court's
ruling barred, McMonigle and Castle do not support the district court's
decision under these facts to broadly exclude Sandra's evidence that was
known to the parties or the court at the time of the prior custody order.
Critically, in opposing Christopher's motion to modify custody, Sandra did
not seek to present this evidence to show circumstances had changed or
of domestic violence may need to be reviewed if new instances of domestic
violence recur. Castle, 120 Nev. at 105-06,
86 P.3d at 1047-48.
We further note that the framework set forth in this opinion applies
to a court's performance of a best interest analysis in the context of requests
to modify both joint and primary physical custody, regardless of whether
that analysis comes about under the prior statutory framework, see, e.g.,
NRS Chapter 125, or under the framework set forth by NRS Chapter 125C.
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even that modification was in the child's best interest. Rather, she intended
to offer the evidence to oppose the modification request and therefore to
show modification was not in the child's best interest. Moreover, the district
court could review its prior rulings and the facts underpinning those
decisions in determining whether a modification of the custody
arrangement was, in fact, in the child's best interest. Thus, the district
court misapplied McMonigle and Castle in this context, as the record does
not show that Sandra sought to relitigate the evidence.
With this in mind, we next consider the error's effect on the
district court's subsequent rulings and whether the error warrants reversal.
The custody determinations
We now turn to Sandra's arguments regarding the district
court's finding that the parties exercised joint physical custody and the
district court's subsequent decision to modify custody, grant Christopher
primary physical custody, and allow him to relocate the child. The record
demonstrates that, in evaluating the existing custody arrangement and the
motion to modify, the district court carefully and thoroughly applied the law
to the facts before the court. However, because the district court
erroneously granted the motion in limine, it did not have all of the pertinent
facts necessary to conduct the required best interest analysis in assessing
the nature of the parties' custody arrangement and resolving Christopher's
motion.
Nevada law is clear: the district court must consider all the best
interest factors in determining the nature of the parties' custody
arrangement—that is, whether the parties share joint physical custody or
whether one of the parties exercises primary physical custody, in deciding
whether to modify custody and in deciding whether to grant relocation. See
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Lewis, 132 Nev. at , 373 P.3d at 882 (holding the court must consider
each of the best interest factors when modifying custody); Bluestein, 131
Nev. at 112, 345 P.3d at 1048-49 (holding that the child's best interest is the
"paramount" consideration in determining the nature of an existing custody
arrangement and whether that arrangement should be modified);
Druckman v. Ruscitti, 130 Nev. 468, 473,
327 P.3d 511, 515 (2014) (holding
the child's best interest must form the basis of a court's decision regarding
relocatioal° After improperly granting Christopher's motion in limine,
however, the district court prevented Sandra from opposing Christopher's
motion with evidence of Christopher's alleged history of domestic violence
and child abuse, even though such evidence is directly relevant to the best
interest analysis. See NRS 125.480(4).
We conclude the district court abused its discretion by
determining the parties exercised joint physical custody without
considering all evidence relevant to the best interest factors." Bluestein,
1-°In the district court, the parties addressed the propriety of allowing
Christopher to relocate the child under Nevada's relocation scheme as it
existed prior to the enacting of NRS 125C.007 (governing petitions for
relocation and setting forth factors for consideration in reviewing such
petitions), as that statute was not in effect at the time Christopher's motion
was filed. Therefore, this opinion does not apply NRS 125C.006, NRS
125C.0065, or NRS 125C.007. Nonetheless, even under the new relocation
statute, a party seeking to relocate a child must show that relocation is in
the child's best interest. See NRS 125C.007(1)(b).
"We also note NRS 125.480(5), and the statute that replaced it, NRS
125C.0035(5), sets forth a rebuttable presumption against awarding
physical custody to a perpetrator of domestic violence. By excluding
Sandra's proposed evidence, the district court failed to consider whether a
rebuttable presumption existed here and, if so, whether Christopher
rebutted that presumption.
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131 Nev. at 113, 345 P.3d at 1048-49. Similarly, the district court further
abused its discretion when it failed to consider this domestic violence
evidence when the court granted Christopher primary physical custody of
the minor child and granted Christopher's motion to relocate the minor
child. See Lewis, 132 Nev. at , 373 P.3d at 882 (requiring the court to
consider the statutory best interest factors in determining whether custody
modification is in the child's best interest); Druckman, 130 Nev. at 473, 327
P.3d at 515 (holding that a decision on a motion to relocate a child must be
based on the child's best interest).
These errors mandate reversal. See Lewis, 132 Nev. at , 373
P.3d at 882 (reversing an order modifying custody where the district court
failed to set forth specific findings showing adequate consideration of all the
statutory best interest factors). On remand, we direct the court to allow
Sandra to present evidence in accordance with the principles set forth in
this opinion, including the domestic violence evidence and evaluation that
the district court considered when making its prior rulings Likewise,
although the district court may not revisit the parties' prior arguments or
otherwise allow the parties to relitigate issues, the district court may review
any prior rulings and the facts on which those rulings were based. 12
CONCLUSION
Under McMonigle and Castle, litigants who are seeking to
modify primary physical custody may not use facts known to the parties or
the court at the time the prior custody order was entered to demonstrate
12We note nothing in this opinion would preclude the district court
from determining incidents of domestic violence that the court has not yet
ruled upon, in accordance with Castle, 120 Nev. at 105-06,
86 P.3d at 1047-
48.
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there has been a substantial change in circumstances. McMonigle and
Castle 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 child's best interest. These
decisions likewise do not prevent litigants from using previously known
evidence of domestic violence defensively to argue modification is not in the
child's best interest. Here, the district court abused its discretion by
concluding McMonigle and Castle barred the evidence and by granting the
motion in limine Because the district court thereafter failed to consider
evidence relevant to the best interest factors, the court further abused its
discretion by determining the parties shared joint custody and thereafter
granting the motion to modify custody and relocate the minor child. We
therefore reverse the district court's order modifying custody and granting
relocation and remand for proceedings consistent with this opinion
, C.J.
Silver
We concur:
J.
Tao
Gibbons
COURT OF APPEALS
OF
NEVADA
18
(0) [9475
