Summit v. Summit

1

MARK EDWARD SUMMIT, Appellant, v. MARGARET MARIE SUMMIT, Respondent.

No. 84856-COA

Court of Appeals of Nevada

June 29, 2023

UNPUBLISHED OPINION

ORDER AFFIRMING IN PART AND DISMISSING IN PART

Gibbons, C.J.

Mark Edward Summit appeals from various district court post-divorce decree orders. Eighth Judicial District Court Family Division, Clark County; Rhonda Kay Forsberg, Judge.

In the underlying proceeding, Mark and respondent Margaret Marie Summit were divorced by way of a divorce decree, which awarded Margaret primary physical custody of the parties' minor children, subject to Mark's parenting time, and the district court established Mark's child support obligation to Margaret in a separate order. Various disputes subsequently arose between the parties, including requests by Mark to modify the parties' custodial arrangement to primary physical custody in his favor or joint physical custody and to modify his child support obligation accordingly, which Margaret opposed. The district court's efforts to resolve these disputes eventually led to a series of appeals before this court. In the most recent prior appeal relevant to the issues presently before us, we concluded that the district court abused its discretion by denying Mark's motion to modify custody without first conducting an evidentiary hearing, and we therefore reversed and remanded the matter for further proceedings on the motion and any other issues that were pending in the case. See Summit v. Summit, No. 77804-COA, 2020 WL 362704, at *2-3, *4 n.4 (Nev. Ct. App. Jan. 21, 2020) (Order Affirming in Part, Reversing in Part and Remanding).^[1]

Following the remand in Docket No. 77804-COA, the parties submitted pre-trial memoranda in which they addressed Mark's motion to modify custody and various other issues, including Margaret's request for child support arrears and modification of Mark's child support obligation. At the subsequent evidentiary hearing, the district court orally denied Mark's motion to modify custody, concluding that he failed to establish a substantial change in circumstances affecting the welfare of the children or that modifying the parties' custodial arrangement was in the children's best interest. However, the district court deferred resolution of the child support and arrears issues because Mark did not file an updated financial disclosure form (FDF) prior to the hearing, and the court directed Mark to file an updated FDF within three weeks, with copies of the following documents attached: (1) his personal and business tax returns for the preceding two years, (2) statements for his personal and business bank accounts covering the preceding 18 months (3) proof of his expenses, and (4) an application that he submitted to obtain a business loan under the Paycheck Protection Program (PPP) of the Coronavirus Aid Relief and Economic Security Act. The district court then entered a written order memorializing those decisions.

Shortly before the district court entered the foregoing order, Mark filed an updated FDF, his 2018 and 2019 tax returns, and sixteen months of statements for a bank account owned by his business. Margaret then filed a brief concerning the child support and arrears issues, among other things, observing that Mark did not submit all of the materials that the district court had directed him to provide. She further argued that he was attempting to conceal income and that the court should impute income to him based on testimony he provided at the evidentiary hearing concerning the salary he received from a former employer. Mark subsequently filed another appeal, which need not be discussed in detail here, aside from noting that the underlying proceeding went inactive for approximately one year until this court dismissed the appeal in Summit v. Summit, No. 82116-COA, 2021 WL 4472763, at *1 (Nev. Ct. App. Sep. 29, 2021) (Order Dismissing Appeal), for lack of jurisdiction. Following the dismissal of the appeal in Docket No. 82116-COA, the district court entered an order directing Mark to file an updated FDF, a copy of his PPP loan application, and profit and loss statements for his business. Mark then timely filed an updated FDF and included copies of his PPP loan application and 2020 tax return, without any of the schedules that were originally attached to the document, as well as a letter from the certified public accounting firm that prepared the return, which briefly mentioned the operating losses reported in the tax return and indicated that a tax return and profit and loss statement for the 2021 tax year had not yet been prepared for Mark.

Following a hearing, the district court entered an order granting Margaret's motion to modify child support and for child support arrears, which increased Mark's monthly child support obligations from $200 to $1,887.98, effective from the date of the evidentiary hearing discussed above, and determined that Mark owed Margaret $33,966 in child support arrears based on the modified support obligation and the period that elapsed since its effective date.^[2] In doing so, the district court essentially found that Mark failed to submit most of the financial documents that he had been directed to provide, aside from his most recent FDF, 2020 tax return, and PPP loan application, and was therefore attempting to delay the proceedings and prevent the court from correctly determining his child support obligation. But because the district court found that Mark's 2020 tax return was "wholly incomplete and inadequate" due to the missing financial documents, the district court focused on representations that Mark made in his FDF and PPP loan application to calculate his gross monthly income and corresponding child support obligations and arrears.

In the foregoing order, the district court also briefly addressed attorney fees and costs, which Margaret had requested. In so doing, the district court partially granted Margaret's request for attorney fees and costs, but instructed her to file a memorandum addressing the remainder of her request, which the court indicated it would consider at a later date. This appeal followed.

On appeal, Mark primarily challenges the district court's order denying his motion to modify custody. This court reviews a child custody determination for an abuse of discretion. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). In evaluating motions to modify custody, the district court must consider whether "(1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child's best interest is served by the modification." Romano v. Romano, 138 Nev.l, 3, 501 P.3d 980, 982 (2022) (internal quotation marks omitted). We will not disturb the district court's factual findings when "they are supported by substantial evidence, which is evidence that a reasonable person may accept as adequate to sustain a judgment." Ellis, 123 Nev. at 149, 161 P.3d at 242 (internal footnote omitted). However, this court gives no deference to findings so conclusory that they may mask legal error. Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142-43 (2015).

With respect to custody, Mark essentially argues that he presented evidence during the underlying proceeding sufficient to establish that a modification of the parties' custodial arrangement was warranted, but the district court nevertheless ruled against him because it ignored or failed to properly weigh the evidence that was before the court. In making this argument, Mark fails to recognize that, although he submitted extensive materials during the underlying proceeding as attachments to his motion practice, many of those materials were not admitted into evidence at the evidentiary hearing, meaning that the district court could not properly consider them in resolving his motion to modify custody. See EDCR 5.205(g)^[3] (providing that exhibits attached to the parties' motion practice "may be deemed offers of proof but shall not be considered substantive evidence until admitted"); Ellis, 123 Nev. at 149, 161 P.3d at 242 (providing that the district court's factual findings must be supported by substantial evidence); see also Cramer v. State, Dep't of Motor Vehicles, 126 Nev. 388, 395, 240 P.3d 8, 12 (2010) (recognizing that, in resolving questions of admissibility, the district court serves a "gatekeeping" function).

Because Mark does not offer any specific argument concerning the district court's reasoning for admitting or excluding certain materials or testimony from evidence, he has waived any challenge to the district court's evidentiary determinations. See Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (providing that arguments not raised on appeal are deemed waived). And while we recognize that Mark is dissatisfied with how the district court weighed the materials and testimony that were admitted into evidence, this court does not reweigh the evidence or witness credibility on appeal. See Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000) (refusing to reweigh the evidence on appeal); see also Ellis, 123 Nev. at 152, 161 P.3d at 244 (refusing to reweigh credibility determinations on appeal).

Instead as discussed above, we deferentially review district court orders resolving motions to modify custody, focusing on whether the district court "reached its conclusions for the appropriate reasons" and whether its factual findings were "supported by substantial evidence." Ellis, 123 Nev. at 149, 161 P.3d at 241-42. Here, the transcript from the evidentiary hearing and the district court's detailed 25-page written order demonstrate that the district court gave due consideration to the issues and evidence that were properly before it...