Nevada family-law case summaries

Brian and Bryanna Ho were married for nearly seven years and had two young children. Both filed for divorce in October 2022, and their cases were combined. During the marriage, Bryanna stayed home to care for the children while Brian, a registered nurse, was the primary earner. The couple agreed on joint legal and physical custody of the children, so custody and child support were not part of this appeal. The appeal focused on two money issues: how the court divided the couple's property and how it calculated alimony (support payments from one former spouse to another). The first issue involved a Fidelity retirement account. During the marriage, Brian took out about $24,000 from that account (in two withdrawals of $12,500 and $17,500) and moved the money into the couple's joint Wells Fargo account. He testified he used the money to pay off shared credit card debt, and Bryanna did not dispute that. After the withdrawals, the account was worth roughly $2,486.31. The trial judge, however, found there was "no proof" of where the money went, called the withdrawals "unilateral and unsupported," and decided to treat the account as though it still held its pre-withdrawal value of $30,000 when dividing the property. To keep the split even, the court then shifted $10,686 of the marital home's equity from Brian to Bryanna. Notably, the same court also expressly found that neither spouse had committed "marital waste." The Court of Appeals held this was contradictory. If the court found no waste, then the withdrawn money was presumed spent for the benefit of the marriage (here, to pay off community debt). A community asset must be valued as of the date the divorce decree is entered - which was about $2,486.31, not the pre-withdrawal $30,000. By valuing the account at $30,000 without finding waste, the court effectively penalized Brian for waste it had said did not exist. The appellate court reversed this part and sent it back for a proper valuation and recalculation of the property division. The second issue was alimony. Bryanna asked for alimony so she could finish her education, explaining she had stayed home by agreement during the marriage. The trial court awarded her $1,650 per month for three years. In doing so, it decided Brian was capable of earning $12,680 per month - the monthly average from his 2022 tax return - even though his most recent 2023 financial disclosure showed a much lower gross monthly income of $7,271.16 plus small, occasional overtime. The court found Brian's explanation for why he stopped working overtime (the end of pandemic bonuses, more nurses hired, and his new custody schedule) not credible, and concluded he was reducing his income to lower his support obligations. The Court of Appeals agreed the trial court could award alimony and had properly analyzed the required statutory factors. But it found the *amount* was not supported by substantial evidence. The court had effectively added about $5,000 per month of "imputed" (assumed) income to Brian's figure without identifying how much of that was supposed to be overtime versus regular pay, and without evidence showing Brian could actually work that much overtime given the end of pandemic conditions and his new parenting duties. The appellate court also pointed out a factual mistake: the trial court described Brian's parenting time as a flexible "visitation" schedule, when in fact he had been awarded joint physical custody, which limited his availability to pick up extra shifts. Because the trial court did not properly account for Brian's changed circumstances or his actual ability to pay, the appellate court reversed the alimony amount and sent it back for reconsideration. Because it reversed the underlying rulings, the court also reversed the order requiring Brian to pay $4,245 of Bryanna's attorney fees.

Erika and Michael Kragen married in 2016 in San Diego and have three children. In August 2022, the family moved from California to Henderson, Nevada, where they lived with Michael's parents and enrolled the children in a private school. Erika worked at the school as a teacher's aide. In mid-January 2023, Erika told Michael she wanted a separation. According to Erika, Michael responded by grabbing a kitchen knife, threatening suicide, and stabbing it through the children's trampoline; Michael said he threw the knife and accidentally cut the trampoline. Erika did not call the police or seek a protective order at that time. On January 31, 2023, while Michael was at work, Erika took the children to San Diego to live with her family and texted Michael afterward saying they "need[ed] a divorce." Important date: that was just four days short of six months after the family's August 4, 2022, arrival in Nevada. For several weeks after January 31, the children remained enrolled in their Nevada school, Erika remained on the school's payroll, and the couple began marriage counseling. By late February, Erika withdrew the children from the school and stopped communicating with Michael. On February 26, 2023, Michael filed for divorce in Clark County, Nevada. Two days later, Erika filed for legal separation in San Diego County, California. About a month after that, Erika sought an emergency domestic violence restraining order in California. The two states' courts both issued temporary custody orders, then conferred by phone. The California court agreed to defer to Nevada on the question of which state should decide custody. The Nevada district court, after an evidentiary hearing on remand from an earlier writ proceeding, found that Nevada was the children's "home state" under the UCCJEA. The legal puzzle: under the UCCJEA, a state is a child's "home state" only if the child lived there with a parent for at least six consecutive months before the case was filed - but the statute counts "any temporary absence" as part of that six months. The children were physically in Nevada for only about five months and 27 days. Whether Nevada qualified as the home state therefore turned on whether the children's time in San Diego from January 31 to February 26 counted as a "temporary absence." The Court of Appeals used this case to formally adopt the "totality of the circumstances" test for deciding whether an absence is temporary - the same test most other UCCJEA states use. Under that test, courts can weigh many factors, including the parents' intent, the length of the absence, whether one parent wrongfully kept the children away, the circumstances of the children's arrival and continued presence, and when the other parent had reason to know any move was permanent. Applying that test, the Court of Appeals upheld the district court's findings. The district court had credited Michael's testimony over Erika's, found that Erika did not actually leave to escape domestic violence (noting she did not seek a Nevada protective order and waited until after Michael filed for divorce to seek one in California), and pointed to the children's continued school enrollment, Erika's continued employment at the school, and the couple's marriage counseling as evidence supporting an expectation of return. Counting the absence as temporary, the children had effectively lived in Nevada for 206 days - more than six months - so Nevada was the home state. The Court of Appeals therefore denied Erika's writ petition. The court also noted that the district court had referred to Erika's "unjustifiable conduct" in removing the children, citing NRS 125A.375(1). The Court of Appeals clarified that NRS 125A.375(1) lets a court decline jurisdiction based on unjustifiable conduct but does not itself create jurisdiction; to the extent the district court relied on it as an independent basis for jurisdiction, that was error, but harmless because the totality-of-the-circumstances analysis independently supported home state jurisdiction. The court rejected Erika's request to reassign the case to a different judge, finding she had not overcome the presumption of judicial impartiality.

Erika and Michael Kragen have three minor children. The family lived in California before moving to Nevada in early August 2022. By January 31, 2023, Erika had moved back to California with the children while Michael stayed in Nevada. Michael then filed for divorce in Nevada; two days later, Erika filed for legal separation and a domestic violence restraining order in California. Both sought custody, which raised the question of which state's courts had the power to decide custody. That question turns on a law called the UCCJEA (the Uniform Child Custody Jurisdiction and Enforcement Act, which Nevada has adopted). Under that framework, the children's "home state" - generally, the state where the children lived for at least six consecutive months before the case started - has first priority to decide custody. Here, the exact date the family moved to Nevada mattered enormously: if they arrived on August 1, 2022, the children may have lived in Nevada for the required six months; if they arrived on August 3 or 4, they did not. The parties' paperwork conflicted. Michael's filings and a U-Haul receipt suggested an August 1 move; Erika's filings, a different U-Haul receipt, text messages, and a bank statement suggested the family left California on the night of August 3 and arrived in Nevada on August 4. Erika had originally filed a declaration in the California case stating the move date as August 1, but she later amended it to say August 3. The Nevada district court found that the family had lived in Nevada from August 2022 through January 2023 - six months - and concluded it had home state jurisdiction. It based that decision on the parties' declarations, treating Erika's original California declaration (with the August 1 date) as binding. Before determining jurisdiction, the court had also issued a temporary custody order giving both parents joint legal and physical custody on a week-on/week-off schedule - even though a California court had already entered a restraining order temporarily giving Erika sole legal and joint physical custody and limiting Michael to supervised visits. The Nevada court did not take testimony and said it would not consider Erika's domestic violence allegations until trial. The Court of Appeals granted Erika's petition for a writ of mandamus - a court order compelling a lower court to do something it is required to do. The appellate court held that Erika's original California declaration was not a binding "judicial admission" because it was filed in a different case and was later amended; it could be considered as evidence, but it was not conclusive on the disputed move date. Because the evidence about the move date conflicted, the district court was required to hold an evidentiary hearing - a proceeding where witnesses testify and evidence is formally presented - before deciding whether it had jurisdiction. The appellate court also held that the district court lacked authority to issue a temporary custody order before determining it had jurisdiction, and that granting joint custody without any findings on the children's best interest, despite Erika's domestic violence allegations, "was a manifest abuse of discretion." The district court must now vacate its jurisdictional orders, hold an evidentiary hearing, and - if it finds it has jurisdiction - reconsider temporary custody in light of any supported domestic violence allegations.