JANELLE DURAN v. JIMMIE DE ARMAS (2025)

ORDER OF AFFIRMANCE

Janelle Duran appeals from a district court decree of child custody and child support and a post-decree order modifying child custody and ordering therapy. Eighth Judicial District Court, Family Division, Clark County; Heidi Almase, Judge.

Duran and respondent Jimmie De Armas were never married but share two children: J.D., born in July 2010, and P.D., born in April 2014. In March 2023, Duran filed a complaint for custody seeking sole legal and primary physical custody. De Armas filed an answer and counterclaim for joint legal and joint physical custody but later asserted he was requesting primary physical custody in his pretrial memorandum. The district court later issued a trial management order setting forth filing deadlines in the action.

In July 2023, the district court temporarily ordered that the parties would share joint legal and joint physical custody of the children. Trial was scheduled for August 29, 2023. Duran was represented by counsel in the case, but in July 2023, Duran's counsel filed a motion to withdraw. The court granted the motion to withdraw on August 1, and Duran filed an ex-parte motion to continue trial on August 24—five days before trial was set to begin—which the court denied the next day.

At trial, the district court noted that Duran failed to file and serve her pre-trial memorandum, failed to submit proposed exhibits for use at trial, and failed to participate in the discovery process. Duran requested that a continuance be granted, but the court denied Duran's request and noted that Duran would be limited to presenting testimony. However, Duran stated that she would be resting on her pleadings and declined to testify.

During the trial, De Armas was the only witness who testified. He testified to Duran failing to share her current address with him, and detailed various instances of Duran failing to abide by the temporary custody order. De Armas further testified that he had not received any parenting time with the children prior to the temporary order issued in this case aside from two occasions. De Armas explained that since his court-ordered timeshare was put into place he exercised his timeshare with the children every weekend per the temporary order until the time of trial.

De Armas further testified that there was an incident during his timeshare where the children snuck out of his home during the night because Duran allowed them to visit a friend in the same residential complex. He also testified that Duran changed the children's schools without discussing it with him. Additionally, De Armas testified to his belief that Duran had not fostered a relationship between him and the children and noted that Duran would frequently call the police on him over the last four months. He further testified that Duran was offered a job at Tesla at a rate of $21.25 per hour four years ago, but to his knowledge, she was no longer working and was not looking for a job. He also testified that P.D. is modeling, and that he believed Duran was pocketing P.D.’s modeling earnings. De Armas presented numerous exhibits, which included messages between the parties.

Following the trial, the district court entered a decree of custody. Therein, the court found that the evidence and testimony credibly established that Duran struggled with adhering to the temporary order, allowing the children to have a relationship with both parents, and cooperating with De Armas. The district court also found that it was not in the best interest of J.D. to order a child interview and that P.D. was not of sufficient age to voice a preference as to custody. The district court further found that several of the best interest factors favored awarding De Armas primary physical custody because Duran withheld the children from him and did not include him in decisions for the minor children. See NRS 125C.0035(4)(c), (e) (the child custody best interest factors related to which parent is more likely to allow the children to have frequent associations and a continuing relationship with the noncustodial parent and to the parents’ ability to cooperate to meet the needs of the children). With respect to NRS 125C.0035(4)(g) (the physical, developmental, and emotional needs of the children), the district court determined that this factor favored De Armas, noting that the children were impacted by the weight of the parties’ conflict and inability to coparent. In considering NRS 125C.0035(4)(h) (the nature of the relationship of the children with each parent), the district court found that this factor favored De Armas because, while both parties cared for the children, De Armas's testimony was credible that he had a good relationship with them and made continual efforts to see the children. The court further found that the remaining factors were either neutral or inapplicable.

Based on the above noted findings, the parties were awarded joint legal custody, but De Armas was awarded primary physical custody of the children with Duran having parenting time on weekends, from Friday to Monday. The court further ordered that Duran arid De Armas would each have five-to-ten-minute phone calls with the children at various points during the other party's parenting time. The court also ordered that a mutual behavioral order be issued and that the children be scheduled for mental health appointments to assist them with navigating their parents’ separation.

With respect to child support, the district court found that, pursuant to NAC 425.125(1), it could impute income after determining that the obligor was underemployed or unemployed without good cause. The court specifically noted that, to impute income to Duran, it had to consider the factors identified within NAC 425.125(2), and it set forth findings relevant to those factors. The court found good cause to impute an income of $18.00 per hour to Duran, which totaled $3,120 per month. Duran's child support obligation was therefore set at $668 per month effective September 1, 2023.

The district court also found that it appeared that P.D. was modeling and, based on evidence presented, Duran had sole access to the child's earnings, suggesting that she had the ability to spend those funds. As a result, the court ordered that a blocked bank account be set up for P.D.’s earnings, which were to be sequestered for P.D.’s benefit. Duran appealed from the October 2023 decree.

While this appeal was pending, De Armas filed a motion seeking a remand and to dismiss this appeal, which he requested so that the district court could grant his motion to modify child custody. In De Armas's motion to modify custody, he sought sole legal and physical custody with Duran having supervised parenting time. The motion asserted that Duran had defied the joint legal custody order because she instructed the children's school not to release the children to De Armas. The motion also raised a number of other issues including Duran purportedly contacting police and CPS for repeated welfare checks. The motion asserted that Duran's mental health had worsened, she prevented the eldest child from obtaining therapy, she interfered with De Armas's parenting time, she made unilateral changes to school records, she was improperly having the children submit letters to the district court, that Duran continued to allocate P.D.’s modeling earnings for her own use in violation of the decree, and she was alienating the children from De Armas.

This court entered an order granting the motion for limited remand on July 17, 2024. On remand, Duran submitted an opposition to De Armas's motion. At the initial hearing, during which Duran had newly retained counsel, the district court concluded De Armas met his prima facie burden to modify custody and, based on the allegations that Duran failed to cooperate with the court's order for the children to attend mental health therapy, it found good cause to temporarily grant De Armas's request for sole legal custody pending an evidentiary hearing.

The district court subsequently held an evidentiary hearing, and both parties testified. De Armas provided testimony concerning Duran's unwillingness to coparent with him and his attempts to get the children scheduled for mental health therapy. He testified to his belief that Duran was coaching the children to run away from his home during his parenting time. With regard to medical issues, he testified that Duran did not keep him apprised of the children's medical or dental appointments. During Duran's testimony, she denied instructing the children to run away from De Armas's home. Additionally, she alleged that De Armas missed appointments with the children, but she was unable to locate proof in support of her allegations. She also testified to her belief that she was the primary caregiver and had been better suited to care for the children since they were born.

Thereafter, the district court granted De Armas's motion in part, awarding him sole legal custody and ordering Duran to undergo therapy, but denying the request to modify physical custody. The court specifically found that the evidence and testimony “credibly established [Duran's] course of conduct since entry of the [decree] has worked to the children's detriment.”

The district court analyzed the best interest factors and determined that NRS 125C.0035(4)(c), (f), (g), and (h) favored De Armas. Based on these findings, the district court found it was in the children's best interest to award De Armas sole legal custody but denied the request to modify physical custody and denied De Armas's request that Duran have supervised parenting time. Furthermore, the court found that Duran would “benefit from individual therapy to assist her with navigating the end of her relationship with [De Armas] and co-parenting in a way that does not negatively impact the children.” Thus, the court ordered Duran to submit to individual therapy and submit proof of attendance of one appointment per month for six months. The court found that this therapy “shall be for her sole benefit and not for the purpose of litigation.” Duran subsequently appealed from the post-decree order modifying legal custody and ordering therapy.

We begin our examination of the issues before us with the district court's initial custody and support decree. Duran first argues that the district court improperly denied her request to continue the August 2023 trial, did not allow her to present any documents or exhibits, and that, based on these rulings, the trial was one-sided, which led to the court giving De Armas primary physical custody. She also contends the court improperly denied her request for the children to be interviewed. Conversely, De Armas asserts that the district court did not abuse its discretion in awarding him primary physical custody and that Duran's arguments with respect to the trial are without merit.

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). “An abuse of discretion occurs when a district court's decision is not supported by substantial evidence or is clearly erroneous.” Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018). A district court's factual findings will be upheld so long as “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. The district court's sole consideration when determining custody is the best interest of the children. NRS 125C.0035(1); Ellis, 123 Nev. at 149, 161 P.3d at 242. When evaluating the children's best interest, the district court must consider all twelve factors set forth in NRS 125C.0035(4), and a written custody decree must contain findings regarding those factors and tie the findings to the ultimate custody determination. Davis v. Ewalefo, 131 Nev. 445, 450-51, 352 P.3d 1139, 1143 (2015). We presume the district court properly exercised its discretion in determining the children's best interest. Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004). We also review a district court's decision regarding a request for a continuance for an abuse of discretion. Bongiovi v. Sullivan, 122 Nev. 556, 570, 138 P.3d 433, 444 (2006).

Here, Duran asserts that primary physical custody was awarded to De Armas without a “fair trial,” and that the district court should have granted a continuance to allow her to retain counsel given that her attorney withdrew from the case. But as detailed above, Duran failed to take any action in the almost one month between the district court granting her former counsel's motion to withdraw and the August 29 trial date other than filing an ex-parte motion to continue trial on August 24—five days before trial was set to begin—which the court denied the next day.

Turning to the trial itself, the district court determined Duran would not be able to present documents or exhibits at trial based on her failure to file a pre-trial memorandum or submit proposed exhibits. While Duran argues that the fact she was unable to present evidence meant she did not get a fair trial, Duran offers no indication of what evidence or testimony she would have presented at trial if trial were continued, and she offers no explanation as to how that evidence or testimony would have produced a different result in this case. Thus, she has not presented a cogent argument in support of reversing the custody decree. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d. 1280, 1288 n.38 (2006) (declining to consider issues that are not supported by cogent argument). Critically, the district court expressly found that Duran would be allowed to testify in support of her case, but rather than take this opportunity, Duran declined to offer any testimony and indicated she would rest her case on her pleadings. In arguing that the trial was somehow unfair, Duran fails to explain why she declined to offer testimony below. See id. As a result, Duran's arguments regarding the denial of her request for a continuance and that she did not receive a fair trial do not present a basis for relief.

Next, to the extent Duran argues that the minor children should have been interviewed prior to the district court making its custody determination, this argument does not provide a basis for relief. The district court has discretion to decide whether it is appropriate to interview the minor children. See NRS 125C.0035(4)(a) (directing courts to “consider” the wishes of the child, if the child is of sufficient age and capacity, but not requiring an interview); NRCP 16.215(a) (setting forth the procedures and considerations for child interviews); see also Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993) (“The trial court enjoys broad discretionary powers in determining questions of child custody.”). On this point, the district court found that it was not in J.D.’s best interest to be interviewed and that P.D. was not of sufficient age to voice a preference as to which parent she wanted to live with. But despite challenging the district court's failure to order that the children be interviewed in making the initial custody determination, Duran makes no argument regarding the propriety of the court's findings and reasons for denying this request, and thus she has failed to offer a cogent argument in support of reversing the decree of custody on this basis. See Edwards, 122 Nev. at 330 n.38, 130 P.3d. at 1288 n.38.

Finally, because Duran fails to provide any specific challenge to the district court's best interest analysis other than summarily stating that she was the parent that the children spend more time with and that De Armas cannot be a primary physical custodian due to his work schedule, she fails to demonstrate a basis for relief. Notably, as detailed above, the district court found that several of the best interest factors favored awarding De Armas primary physical custody and that the remaining factors were either neutral or inapplicable. But because Duran has failed to address the court's specific findings on these factors or otherwise present cogent argument regarding the court's best interest analysis, she has failed to demonstrate a basis for relief on these points. See Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (“Issues not raised in an appellant's opening brief are deemed waived.”); Edwards, 122 Nev. at 330 n.38, 130 P.3d. at 1288 n.38.

Examining the remainder of the custody decree, the findings set forth therein demonstrate that the district court gave due consideration to the issues and evidence before it and awarded De Armas primary physical custody for appropriate reasons—in particular, its determination that doing so was in the children's best interest. See NRS 125C.0035(1); see also Davis, 131 Nev. at 451, 352 P.3d at 1143. Given that the district court weighed the evidence and analyzed the best interest factors, we see no basis to conclude the district court abused its discretion in awarding De Armas primary physical custody. Ellis, 123 Nev. at 149, 161 P.3d at 241-42. Thus, we affirm that determination.

Next, Duran challenges the district court's award of child support. She argues that the court abused its discretion by imputing income to her for the purpose of determining child support because she is a stay-at-home parent and, thus, she is not willfully unemployed. De Armas argues that the district court did not abuse its discretion in finding Duran willfully unemployed and imputing income to her for purposes of child support, because the court's findings were supported by the evidence submitted at trial.

“We review decisions regarding child support for an abuse of discretion.” Romano v. Romano, 138 Nev. 1, 7, 501 P.3d 980, 985 (2022), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev. 401, 404-05, 535 P.3d 1167, 1171 (2023). A district court abuses its discretion when its findings are not supported by substantial evidence, Miller v. Miller, 134 Nev. 120, 125, 412 P.3d 1081, 1085 (2018), 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. The district court may impute income to a parent if the court first determines the parent is underemployed or unemployed without good cause. NAC 425.125(1); Rosenbaum v. Rosenbaum, 86 Nev. 550, 554, 471 P.2d 254, 256-57 (1970) (holding that a district court may impute income to a party that “purposefully earns less than [their] reasonable capabilities permit”). The key issue is the good faith of the parent. Rosenbaum, 86 Nev. at 554, 471 P.2d at 257.

In addressing the child support issue, the district court considered the NAC 425.125(2) factors for determining whether to impute income to a party and set forth findings regarding those factors. Among other things, the court found Duran was in good health, college-educated, had no employment barriers, and that she was unemployed for approximately four years as established by the evidence submitted by De Armas. The court further found that Duran's last employment was at Tesla where the evidence demonstrated she earned $21.25 per hour. The court further found that Duran would be able to obtain nominal employment if that was her choice.

Based on the evidence presented and its findings regarding the NAC 425.125(2) factors, the court found good cause to impute income to Duran. Based on our review of the documents before us, we conclude a reasonable mind could accept that there was sufficient evidence presented to support the court's findings regarding Duran's income and its decision to impute income to her for child support. Ellis, 123 Nev. at 149, 161 P.3d at 242. Thus, we conclude that this determination was supported by substantial evidence. See id. (providing that district court determinations that are supported by substantial evidence will not be disturbed on appeal).

To the extent Duran challenges the district court's factual findings and contends that she is not unemployed for purposes of avoiding child support, we are not persuaded by her assertions. While Duran is dissatisfied with how the district court weighed the evidence and testimony, this court does not reweigh the evidence or witness credibility determinations on appeal. See Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009) (stating that “credibility determinations and the weighing of evidence are left to the trier of fact”); Roggen v. Roggen, 96 Nev. 687, 689, 615 P.2d 250, 251 (1980) (noting that it “is not the duty of a reviewing court to instruct the trier of facts as to which witnesses, and what portions of their testimony, are to be believed”). Accordingly, Duran's arguments in this regard do not provide a basis for relief and we therefore discern no abuse of discretion in the district court's child support determination, Romano, 138 Nev. at 7, 501 P.3d at 985. As a result, we affirm the district court's child support award.

We next turn to Duran's arguments concerning the district court's post-decree order modifying legal custody and directing Duran to undergo therapy. Here, Duran first argues that the court abused its discretion in modifying legal custody. More specifically, she argues that the district court failed to identify any substantial change in circumstances and failed to address the best interest factors when awarding De Armas sole legal custody. De Armas argues that the court did not abuse its discretion in making this decision because the district court's order analyzed the best interest factors and made detailed findings with respect to how Duran interferes with the children's medical needs and appointments.

This court reviews district court decisions concerning legal custody for an abuse of discretion. Ellis, 123 Nev. at 149, 161 P.3d at 241; Mack-Manley v. Manley, 122 Nev. 849, 858, 138 P.3d 525, 531 (2006) (reviewing a district court's decision to modify legal custody for an abuse of discretion). “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), overruled on other grounds by Romano, 138 Nev. at 6, 501 P.3d at 984. “Sole legal custody vests this right with one parent, while joint legal custody vests this right with both parents.” Id. There is a statutory presumption that joint legal custody would be in the best interest of the children when certain conditions are met. NRS 125C.002(l)(a). However, this presumption is overcome when the district court finds that the parents are unable to communicate, cooperate, and compromise in the best interest of the children. See Rivero, 125 Nev. at 420, 216 P.3d at 221.

To establish that a custodial modification is appropriate, the moving party must show that “(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, 138 Nev. at 5, 501 P.3d at 983 (internal quotation marks omitted).

The district court determined that a modification of sole legal custody was warranted because the evidence submitted at the evidentiary hearing “credibly established [Duran's] course of conduct since entry of the [decree] has worked to the children's detriment.” The court then went on to find that De Armas credibly testified how Duran delayed in cooperating with De Armas in obtaining mental health services for the kids, scheduled appointments without involving him and hid the appointments from him. The court further found De Armas's testimony credible that Duran provided P.D. with a burner cell phone and encouraged or directed the children to run away from De Armas's home on at least two occasions post-decree. Thus, to the extent Duran argues that the district court failed to explicitly find that a substantial change in circumstances had occurred, we are not persuaded by this argument. The court's above noted findings sufficiently make clear that the decision to modify legal custody was based on significant changes in Duran's coparenting efforts, or lack thereof, with De Armas since the decree was entered. Accordingly, Duran's argument in this regard does not provide a basis for relief. Ellis, 123 Nev. at 149, 161 P.3d at 242.

Moreover, we are not persuaded by Duran's assertion that the district court failed to account for the children's best interest. While not mandatory when evaluating legal custody, the district court considered factors under NRS 125C.0035, and determined that NRS 125C.0035(4)(c), (f), (g), and (h) favored De Armas. Specifically, the court found that De Armas was the parent more likely to allow the children to have frequent associations with the other parent. The court also found that, while De Armas was in good health, Duran had difficulty navigating the parties’ separation and would benefit from mental health therapy. The court further noted that Duran failed to timely cooperate with De Armas in obtaining therapy for the children following the entry of the decree and that, while both parties generally have positive relationships with the children, the children were influenced by Duran in running away from De Armas's home on at least two occasions since the entry of the decree of custody. The court determined that the other factors were neutral or inapplicable. Thus, the district court found it was in the children's best interest to award De Armas sole legal custody.

Although Duran asserts the court should have found that the children's best interest did not favor modifying legal custody, this court will not second guess a district court's resolution of factual issues involving conflicting evidence or reconsider its credibility findings. See Ellis, 123 Nev. at 152, 161 P.3d at 244; Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000) (stating that this court “is not at liberty to weigh the evidence anew, and where conflicting evidence exists, all favorable inferences must be drawn towards the prevailing party” (internal quotations omitted)). Moreover, to the extent Duran raises arguments with respect to De Armas's ability to provide for the minor children's medical and educational needs and suggests that she is better suited to care for the children in this respect, these arguments concern evidence presented at the evidentiary hearing and the district court's findings based on that evidence. But Duran has failed to provide this court with a transcript from the evidentiary hearing, and thus we necessarily presume that it supports the district court's determination. See Cuzze, 123 Nev. at 603, 172 P.3d at 135 (noting that it is appellant's burden to ensure that a proper appellate record is prepared and that, if the appellant fails to do so, “we necessarily presume that the missing [documents] support[ ] the district court's decision”). Indeed, without a copy of the evidentiary hearing transcript, we are unable to meaningfully review Duran's challenges to the district court's findings and conclusions that were based upon the evidence presented at the evidentiary hearing. Under these circumstances, we conclude substantial evidence supports the district court's findings with regard to the children's best interest and, as a result, we discern no abuse of discretion in the district court's decision to modify legal custody. See Ellis, 123 Nev. at 149, 161 P.3d at 241. Accordingly, we affirm that determination.

Finally, Duran asserts that the district court erred in ordering her to attend individual therapy. Duran contends that the district court failed to state the basis for ordering her to submit to therapy and failed to make findings of fact or conclusions of law to support the order. Conversely, De Armas argues that the order that Duran attend individual therapy was supported by the evidence presented at the evidentiary hearing and that the order did not affect Duran's parenting time with the children and was not punitive but rather ordered to indirectly help the children.

District courts have broad discretion to determine child custody cases, and we review the district court's determinations in such proceedings for an abuse of discretion. Ellis, 123 Nev. at 149, 161 P.3d at 241. In reviewing a district court's child custody determinations, we focus on whether the district court “reached its conclusions for the appropriate [legal] reasons” and whether its factual findings were “supported by substantial evidence.” Ellis, 123 Nev. at 149, 161 P.3d at 241-42; see also Sims, 109 Nev. at 1148, 865 P.3d at 330 (stating that this court “must be satisfied that the [district] court's determination was made for the appropriate reasons”).

In challenging the district court's order that she undergo therapy, Duran primarily asserts that the court's order lacked requisite findings and a basis to support the order. We disagree. Here, the district court found that Duran would “benefit from individual therapy to assist her with navigating the end of her relationship with [De Armas] and co-parenting in a way that does not negatively impact the children.” The court further found that undergoing therapy would generally help her ability to parent the minor children. Although the district court did not expressly state that Duran undergoing therapy was in the children's best interests, the above noted findings nonetheless correlate to two of the best interest factors that courts must consider in making child custody determinations.¹ See NRS 125C.0035(4)(f) (the mental and physical health of the parents); NRS 125C.0035(4)(e) (the ability of the parents to cooperate). The district court's findings on these points are supported by substantial evidence in the record. Ellis, 123 Nev. at 149, 161 P.3d at 242.

It is well established that, in every child custody case, the sole consideration is the best interest of the children. NRS 125C.0035(1); see Davis, 131 Nev. at 451, 352 P.3d at 1143. Likewise, a district court can properly direct a parent to attend therapy where the court determines that requiring therapy is in the children's best interest. See, e.g., Rock v. Rock, 308 A.3d 492, 506 (Vt. 2023) (affirming an order requiring father to undergo family therapy with his daughter for six months to help him gain insight into his daughter's needs where the court found that this course of action was in the child's best interests); see also Askew v. Askew, Docket No. 66444, 2016 WL 606903 (Nev. Feb. 12. 2016) (Order Affirming in Part, Reversing in Part, and Remanding) (affirming in part a district court order for supervised parenting time contingent on appellant's therapy and drug testing, which served the children's best interests). Under these circumstances, we cannot say that the district court abused its discretion by ordering Duran to undergo therapy. Therefore, we affirm the district court's order directing Duran to undergo individual therapy.

It is so ORDERED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   While the district court stated that the directive that Duran participate in individual therapy was not for litigation purposes, this appears to refer to the fact that therapy was not a prerequisite for some other event happening or not happening in the case. Instead, the court's order reflects its belief that the end goal of the therapy was for therapy to benefit Duran, which would—as De Armas notes—also benefit the children to the extent it improved her ability to parent the children and coparent with De Armas.