Stinziano v. Walley

ANTHONY MICHAEL STINZIANO, Appellant, v. AMBER MARIE WALLEY, Respondent.

No. 70590

COURT OF APPEALS OF THE STATE OF NEVADA

March 30, 2017

ORDER OF REVERSAL AND REMAND

Appellant Anthony Michael Stinziano appeals from a district court order modifying child support and changing the surname of the minor child. Eighth Judicial District Court, Family Court Division, Clark County; William S. Potter, Judge.

Stinziano and Respondent Amber Walley have one minor child, age 3 at the time of the hearing. Amber was granted primary custody of the child and permission to relocate to Ohio in 2013. The district court, after a motion hearing in 2015 ("December 8th hearing"), granted Anthonys motion to modify child support and Amber's countermotion to modify the child's surname from "Stinziano" to "Stinziano-Walley." The district court set the child support by determining 18% of Anthony's gross monthly income, then applying the NRS 125B.080(9) deviation factors to that amount. The court noted that the calculated amount, including the downward deviations, was greater than the statutory cap, and ordered Anthony to pay the statutory cap amount.

After the order from the December 8th hearing was filed, Anthony filed a motion to alter findings/amend judgment, to make clerical corrections to the order, and to reconsider the decision regarding the name change and child support, and Amber opposed this motion.¹ The district court denied Anthony's motion regarding child support and the name change ("April 13th hearing").²

On appeal, Anthony contends that the district court erred because: (1) it lacked jurisdiction to modify the child's surname pursuant to NRS 125A.315 and, because the name had already been adjudicated, the court should have instead employed an analysis pursuant to NRCP 60(b); (2) it applied the wrong legal standard while deciding the name change issue; (3) there was insufficient evidence to support a finding that clear and compelling evidence necessitated changing the child's name; and (4) it used the incorrect methodology when calculating child support.

The district court had jurisdiction to decide the name change issue

Anthony first contends that the district court lacked jurisdiction to change the child's surname pursuant to NRS 125A.315 because changing a child's name is not a child custody issue. Amber counters that changing a child's name is a legal custody issue; therefore, pursuant to NRS 125C.0045(1)(a), the district court retained jurisdiction for the name change.

NRS 125C.0045(1)(a) states that a court may make and modify custody orders for a minor child "at any time . . . during the minority of the child." NRS 125A.315(1) provides in relevant part:

[A] court of this state which has made a child custody determination . . . has exclusive,continuing jurisdiction over the determination until:

(a) A court of this state determines that the child, the child's parents and any person acting as a parent do not have a significant connection with this state[.]

NRS 125A.045(1) defines "child custody determination" as "a judgment, decree or other order of a court which provides for the legal custody, physical custody or visitation with respect to a child." Anthony still resides in Nevada and therefore has "a significant connection" with Nevada. Thus, if a name change is a legal custody issue, the district court had jurisdiction to decide that issue.

"Legal custody involves having basic legal responsibility for a child and making major decisions regarding the child, including the child's health, education, and religious upbringing," Rivero v. Rivero, 125 Nev. 410, 420, 216 P.3d 213, 221 (2009). Legal custody also includes decisions regarding the welfare of the child. Mack v. Ashlock, 112 Nev. 1062, 1067, 921 P.2d 1258, 1262 (1996) (Shearing, J., concurring), cited with approval in Rivero, 125 Nev. at 420, 216 P.3d at 221. Changing a child's name is a "major decision" that impacts the child's welfare. See Magiera v. Luera, 106 Nev. 775, 778, 802 P.2d 6, 8 (1990) (describing how changing a child's surname may adversely impact a child). As changing a child's name is a major decision that affects the child's welfare, and legal custody includes decisions which affect the child's welfare, we hold the district court had jurisdiction to decide the name change issue.

Anthony's argument that Amber's request for the name change should have been made pursuant to NRCP 60(b) is without merit. As stated above, a minor's name change is a legal custody issue and thedistrict court retained jurisdiction to decide legal custody issues post-decree.

Anthony is not precluded from appealing the name change issue

Amber's argument that Anthony's failure to file an opposition to the name change below precludes him from raising the issue on appeal is also without merit. First, the time for filing the opposition had not elapsed before the hearing took place, see EDCR 2.20; EDCR 5.25 (providing the deadlines for filing and serving oppositions).³ Second, at the December 8th hearing, Amber's counsel argued that Anthony had not filed an opposition, but nonetheless, invited an oral opposition to the countermotion by stating "[i]f they [Anthony] can articulate anything that has to do with the child . . . then yes, let's consider it and let's talk about it." Third, Anthony, in response to the district court's specific inquiry torespond on the merits of the countermotion, opposed the name change, and did so again in his motion for reconsideration.⁴

Our dissenting colleague misinterprets or distorts the record, and thereafter cites to numerous authorities to support his position that because Anthony failed to oppose the name change by filing a written opposition, he cannot raise this issue on appeal. We disagree. First, EDCR 2.20 states that a court may construe a failure to file a written opposition as an admission that the motion is meritorious; it does not require a court to grant the unopposed motion. See Butler v. State, 120 Nev. 879, 893, 102 P.3d 71, 81 (2004) ("'May,' as it is used in legislative enactments, is often construed as a permissive grant of authority[.]") Our review of the record shows that the district court did not grant Amber's countermotion for the name change pursuant to EDCR 2.20 based on Anthony's failure to oppose. Instead, at the December 8th hearing, the district court invited Anthony to orally state his position regarding the name change. Then, after considering Anthony's oral opposition, which included a statement traversing the veracity of Amber's factual allegations, the district court actually ruled on the merits of the countermotion, and gave no credence to Amber's argument that the failure to file a written opposition should result in a grant of the motion.

Our dissenting colleague makes much of the fact that Anthony never asked for a continuance or requested more time to file a written opposition. But contrary to the rhetoric in the dissent, either of these imagined scenarios is legally irrelevant as the district court allowed andentertained Anthony's oral objection to the name change before deciding that issue on the merits. Therefore, the cases cited within the dissent either support the majority order or are factually distinguishable.

Next, Anthony's motion for reconsideration and the district court's order denying the same are properly part of the record on appeal. Our dissenting colleague appears to suggest that Anthony waived his right to challenge the name change on appeal because the district court denied reconsideration on procedural grounds. The record reflects that Amber did not argue that the failure to file a written opposition in December rendered reconsideration improper. She made other arguments in the district court, but the court did not resolve the motion on procedural grounds; rather, it appears to have actually resolved Anthony's motion for reconsideration on the merits. As a result, this court may also consider Anthony's argument opposing the name change that Amber failed to meet her burden of proof made in his reconsideration motion. See Arnold v. Kip, 123 Nev. 410, 416-17, 168 P.3d 1050, 1054 (2007).

Most important, the implication of our colleague's dissent - that Amber should automatically prevail on the name change countermotion because Anthony did not file a written opposition - violates established caselaw. In custody matters, the child's welfare is the court's paramount concern. St. Mary v. Damon, 129 Nev. 647, 654, 309 P.3d 1027, 1033 (2013). Therefore, even if, arguendo, Anthony missed a deadline, and the court and Amber's counsel had not invited Anthony's oral opposition, the district court would still need to make findings that the name change was in the child's best interest. See Blanco v. Blanco, 129 Nev. 723, 731, 311 P.3d 1170, 1175 (2013) ("[G]iven the statutory and constitutional directives that govern child custody and supportdeterminations, resolution of these matters on a default basis without addressing the child's best interest and other relevant considerations is improper."). For all of these reasons, we believe the views and conclusions expressed by our dissenting colleague are misguided and this court may review on appeal the district court's order granting Amber's countermotion for the name change.

The district court applied the correct legal standard to the request for the name change

Anthony argues the district court erred by not requiring Amber to prove by clear and compelling evidence that the name change was in the child's best interest. Amber argues the district court correctly applied the best interest analysis. We review whether a district court applied the correct legal standard de novo. Staccato v. Valley Hosp., 123 Nev. 526, 530 n.4, 170 P.3d 503, 506 n.4 (2007).

"[T]he only factor relevant to the determination of what surname a child should bear is the best interest of the child. . . . [T]he burden is on the party seeking the name change to prove, by clear and...