Zamboanga v. Ortiz

1

BRITTANY NICOLE ZAMBOANGA, Appellant/Cross-Respondent, v. JOEY ALBERT CABANAG ORTIZ, Respondent/Cross-Appellant.

No. 86050-COA

Court of Appeals of Nevada

January 19, 2024

UNPUBLISHED OPINION

ORDER OR REVERSAL AND REMAND

Gibbons, C.J.

This is an appeal and cross-appeal from a district court order denying a motion and countermotion to modify custody of minor children. Eighth Judicial District Court. Family Division. Clark County; Michele Mercer. Judge.

Brittany Nicole Zamboanga (Brittany) and Joey Albert Cabanag Ortiz (Joey) were married in February 2008. They have three minor children together: J.O. (15). R.O. (13), and C.O (9).^[1] Shortly after they married, the parties moved to Colorado where their relationship deteriorated. Brittany filed for divorce in June 2016, and the divorce was finalized in October 2016.

The parties' original custody arrangement granted them joint legal and physical custody. However, the parties stipulated to a new arrangement entered in October 2021. where Brittany and Joey would continue to share joint legal custody of all three children, but Joey would have sole legal custody regarding schooling, medical, and extracurricular activity decisions. Joey would also have primary physical custody of J.O. and R.O.. while the parties would share joint physical custody of C.O. The parties agreed to evenly split medical, school, and extracurricular activity costs.

In September 2022, Brittany filed a motion to modify child custody, seeking sole legal and primary physical custody of all three children. In a statement supported by declaration, Brittany argued that a change in custody was in the children s best interest because Joey created a living environment that was not supportive of the children s mental health and wellbeing. She argued that, since the filing of the October 2021 arrangement, there had been several substantial changes in circumstances affecting the children. Brittany alleged, among other things, that Joey: gave J.O. alcohol and forced J.O. to do pushups: failed to adequately address J.O.'s mental health issues after J.O. expressed suicidal ideations: and called their daughter R.O. "fat" and placed R.O. on a restrictive diet. She additionally argued that Joey changed his own physical appearance in disturbing ways; would scream and yell at the children and break things in the home: "paint[ed] the wrong picture" for the children's wellbeing and mental health: was not emotionally present for the children: created an environment where the children felt they "walk[ed] on eggshells around him; and was admitted to the VA hospital for observation following a depressive episode in 2022. Brittany further alleged that J.O. feared Joey and did not want to live with him.

Joey filed an opposition to Brittany's motion, as well as a countermotion to modify his physical custody of C.O. from joint to primary. In a statement supported by affidavit. Joey denied Brittany's allegations and alleged, among other things, that Brittany: refused to pay her half of the medical expenses; had exercised less than five percent of her allotted parenting time since the filing of the October 2021 custody agreement: assaulted Joey's girlfriend; allowed J.O.-who did not have a license-to drive her car unsupervised with another minor child inside: and endeavored to unilaterally disenroll all three children from their current schools. Joey also alleged that, after the parties were divorced, Brittany abandoned the children and moved to Florida for three months between July and September 2020, during which time she was unreachable. When Brittany returned, Joey also contended that she entered a relationship with an exfelon who physically abused her in front of the children. As to Joeys relationship. Joey contended that Brittany was hostile towards his new girlfriend and physically assaulted his girlfriend on one occasion. Finally. Joey argued that modifying C.O's physical custody to make him the primary custodial parent was in C.O. s best interest because he would be able to provide C.O. with a more stable environment than Brittany and was also more willing than Brittany to nurture the noncustodial parent relationship.

In reply to Joey's opposition, and in opposition to Joey's countermotion. Brittany argued, in a statement supported by declaration, that she never abandoned the children and instead temporarily left Nevada to find work in Florida. Brittany maintained that she was no longer in a relationship with the man Joey alleged was an abusive ex-felon and never-left J.O. unaccompanied in a car while unlicensed. Further. Brittany stated that she was justified in not paying her share of extracurricular activity and medical costs because she lacked financial resources, while Joey made over $200,000 per year. Brittany reiterated that Joey allowed J.O. to drink underage, which demonstrated Joey's "poor parental decision making." Joey filed a supplement to his opposition that contained a link to three videos purporting to show J.O. smoking marijuana in Brittany's house, as well as a package of marijuana "laying out in the open. ^[2]

The district court held a hearing on all pending motions in November 2022. Both Brittany and Joey were represented by counsel and reiterated the arguments in their respective briefings. Following arguments, the court ordered that all three children be interviewed by the Family Mediation Center (FMC). and that Brittany and Joey attend EMC mediation to facilitate a potential custody agreement. The court ordered a return proceeding for December 2022 to determine the next step in the process and indicated that this hearing would focus on the FMC child interview report and mediation, as opposed to the children s custody status. Finally, the district court instructed that the parties were to abide by the current custody arrangement, and that Brittany was to return J.O., who at that time was living solely with Brittany in violation of the October 2021 arrangement, to Joey.

At the December 2022 return hearing, the district court overviewed the FMC child interview report and heard argument from both parties' counsel.^[3] The court noted that, per the child interview report, there appeared to be conflict between J.O. and Joey, that J.O. indicated he would like to live with Brittany, and that R.O. and C.O. indicated a willingness to live with both parents. During the interview, J.O. apparently stated that Joey forced him to drink alcohol; did not help J.O. seek counseling when J.O. was suffering from suicidal ideations; and punched, hit. and kicked J.O.

Between the two hearings, J.O. started therapy, and Joey indicated a willingness to participate in therapy as well.

Brittany argued that there was sufficient information demonstrating a substantial change of circumstances to warrant an evidentiary hearing for all three children. As to J.O., Brittany specifically pointed to the suicidal ideations, as well as J.O. s stated preference to live with Brittany. As to R.O. and C.O., Brittany noted the incident where Joey called R.O. "fat" and placed R.O. on a restrictive diet, and highlighted Joey's "definite alcohol abuse," physical abuse, and anger management issues. According to Brittany, the children felt safe, comfortable, and happy in her care, while they feared Joey. Brittany also noted that the children expressed in the interview that they did not know that they were moving to Las Vegas with Joey in September 2020, and merely thought they were going to visit him.

Joey responded that J.O. lied in the child interview report, and that the entire report "boiled down to preference." Joey categorically denied the physical abuse allegations and argued that there was insufficient evidence for the court to hold evidentiary hearings regarding R.O. and C.O. However. Joey conceded that there may be sufficient evidence with respect to J.O. In arguing his countermotion. Joey asserted that, based on his allegations against Brittany, there was sufficient evidence to warrant an evidentiary hearing regarding C.O. Namely, that Brittany abandoned C.O. for three months when she went to Florida, attempted to remove C.O. from her current school, and consistently did not exercise her allotted parenting time.

After hearing the parties' arguments, the district court placed both parties under oath but then, inexplicably, questioned only Joey. The court first asked Joey to describe his reaction to the child interview report.

Joey maintained that the report did not indicate the entire truth, and that he did not kidnap his children when he relocated to Las Vegas in September 2020. Regarding J.O., Joey alleged that he had not spoken with J.O. about the allegations in the report, but that he planned to discuss them and also be involved with J.O. s therapy.

The district court then stated that it was going to deny both Brittany's motion and Joey's countermotion. The court stated that there was not "sufficient reason to conduct an evidentiary hearing," as neither party had made a "prima facie case. Although the court felt concern[ed]” about Joey's relationship with J.O., the court was hopeful that Joey would embrace the opportunity for counseling, to work on his communication with J.O. The district court also asserted that it appeared Brittany and Joey were cooperating more than they had in the past.

The district court asked Brittany to prepare the order. Upon Brittany s request that the court make specific findings of fact and conclusions of law for appellate purposes, the court stated that, pursuant to Romano, it" [did not] believe that there] ] [had] been a substantial change in circumstances affecting the welfare of the children."^[4] Consequently, the court concluded that "the first prong of Romano having not been met...