MICHAEL THOMAS MARTINELLI v. MICHELLE LUCERO DEL REAL (2025)

ORDER OF AFFIRMANCE

Michael Thomas Martinelli appeals from a final order denying a petition to establish nonparent visitation. Eighth Judicial District Court, Family Division, Clark County; Stephanie Charter, Judge.

Martinelli and respondent Michelle Lucero Del Real were in a romantic relationship that began in 2013, shortly after Del Real's son was born. Martinelli is not the child's biological father. The parties’ romantic relationship ended in 2022 following an incident in which Martinelli committed an act of domestic violence against Del Real in the presence of the child.

Also in 2022, Martinelli filed a petition to establish nonparent visitation with the child. In his petition, Martinelli asserted that he resided with the child, had a meaningful relationship with the child, and acted as the child's de facto father. Martinelli also contended that Del Real had unreasonably denied him visitation with the child. Del Real opposed Martinelli's petition.

The district court subsequently set this matter for an evidentiary hearing on November 6, 2023, and issued a scheduling order. The scheduling order stated that discovery would close 30 days before the evidentiary hearing. The parties later agreed to have the child undergo an interview and the child was interviewed at the Family Peace Center.

Not long before the evidentiary hearing was scheduled, Martinelli filed a motion in limine seeking to preclude Del Real from referring to his arrests and acts of domestic violence. He also moved to reopen discovery, as he sought further discovery concerning the child's schooling and medical issues. Del Real later became represented by pro bono counsel and opposed Martinelli's motions.

Del Real also moved the district court to declare Martinelli a vexatious litigant and to impose appropriate penalties, as she asserted he was using the court proceedings to harass, annoy, and intimidate her. In support of her motion, Del Real noted that Martinelli was arrested and charged with battery constituting domestic violence, he was subject to an order of protection limiting his contact with Del Real, and he has since violated the protection order. Martinelli opposed the motion, asserting that he pursued visitation with the child in good faith.

The district court later issued an order denying Martinelli's motion in limine and his motion to reopen discovery. The court also deferred evaluation of Del Real's request to declare Martinelli a vexatious litigant until the evidentiary hearing.

The district court subsequently conducted the evidentiary hearing and afforded the parties 90 minutes each to present their evidence and arguments. Martinelli presented testimony from two of the child's teachers and a friend of Del Real's family. Martinelli and Del Real also testified at the evidentiary hearing. In particular, the parties testified concerning Martinelli's acts of domestic violence and his Arizona arrest for driving under the influence of alcohol when the child was in the vehicle with him. Martinelli exhausted his allotted time but the district court allowed him to go over for his closing arguments.

Following the presentation of evidence, the district court announced its decision to deny Martinelli's petition. It also informed the parties that it decided to grant Del Real's motion to declare Martinelli a vexatious litigant and it directed Del Real's counsel to file a memorandum in support of her motion. Del Real later filed a memorandum in which she requested an award of attorney fees payable to the Legal Aid Center of Southern Nevada, addressed the appropriate factors set forth in Brunzell v. Golden Gate National Bank, 85 Nev. 345, 349-50, 455 P.2d 31, 33 (1969), and presented information concerning the time her pro bono counsel spent on this matter, see Miller v. Wilfong, 121 Nev. 619, 623, 119 P.3d 727, 730 (2005) (explaining district courts may award attorney fees even when counsel serves in a pro bono capacity).

The district court ultimately issued a written order denying the petition for nonparent visitation. The court noted that Del Real had a due process right in the care, custody, and control of her child and that there was a rebuttable presumption it was not in the best interest of the child to award Martinelli with visitation. See NRS 125C.050(4). The court further determined that Martinelli failed to present clear and convincing evidence sufficient to rebut that presumption. The court also evaluated NRS 125C.050(6)’s factors and found that those factors favored denying Martinelli's request for visitation. In particular, the court found that Martinelli was not morally fit, he committed acts of domestic abuse against Del Real and did so in the presence of the child, and his substance abuse issues caused a significant impact on the child. The district court accordingly determined it was not in the child's best interests to award Martinelli visitation.

The district court further found that Martinelli brought his petition with the intent to harass Del Real, he had abused the discovery process, and used the litigation as a means to invade Del Real's life. The district court accordingly found that Martinelli was a vexatious litigant and, based on the foregoing findings, an award of attorney fees in favor of Del Real was warranted. The court further noted it had reviewed the memorandum Del Real filed and determined that an award of attorney fees in the amount of $5,000, payable to the Legal Aid Center of Southern Nevada, was warranted.

Martinelli subsequently filed a motion to set aside the judgment and a motion for new trial. Del Real opposed the motions and again moved the district court for an award of attorney fees as she contended Martinelli pursued groundless motions and harassed her with his court filings. The district court denied Martinelli's motions, concluding there was no basis to set aside its decision or to conduct a new trial. The district court also determined that Del Real was entitled to an additional award of attorney fees in the amount of $500, payable to the Legal Aid Center of Southern Nevada, as the court determined Martinelli had no valid basis to pursue those motions. This appeal followed.

First, Martinelli argues the district court abused its discretion by denying his motion to reopen discovery. Martinelli contends Del Real failed to disclose evidence concerning the child's schooling and medical issues and notes he had to obtain that evidence via use of subpoenas. “Discovery matters are within the district court's sound discretion, and we will not disturb a district court's ruling regarding discovery unless the court has clearly abused its discretion.” Club Vista Fin. Servs. v. Eighth Jud. Dist. Ct., 128 Nev. 224, 228, 276 P.3d 246, 249 (2012). “An abuse of discretion occurs if the district court's decision is arbitrary or capricious or if it exceeds the bounds of law or reason.” Skender v. Brunsonbuilt Constr. & Dev. Co., 122 Nev. 1430, 1435, 148 P.3d 710, 714 (2006) (internal quotation marks omitted).

Here, the district court found that Martinelli had ample time to complete discovery and determined that it would not reopen discovery. The court also found that Martinelli had abused the discovery process as a means to harass Del Real. The district court accordingly denied Martinelli's request to conduct further discovery. Substantial evidence supports the district court's findings. See Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007) (stating substantial evidence is that which a reasonable person may accept as adequate to sustain a judgment). Martinelli fails to demonstrate the district court's decision was arbitrary or capricious or exceeded the bounds of law or reason. Accordingly, we conclude Martinelli fails to demonstrate the district court abused its discretion by denying his request to reopen discovery.

Second, Martinelli argues the district court abused its discretion by denying his motion in limine seeking to preclude reference to his arrests, acts of domestic violence, and his substance abuse. “Generally, we review the district court's decision to grant or deny a motion in limine to exclude evidence for an abuse of discretion.” In re T.M.R., 137 Nev. 262, 265, 487 P.3d 783, 787 (2021).

The district court denied Martinelli's motion in limine, explaining that it would consider all relevant evidence at the evidentiary hearing. See NRS 48.015 (stating ‘ “relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable”). At the evidentiary hearing, the court admitted and considered testimony concerning Martinelli's arrests, his acts of domestic violence, and his issues regarding substance abuse. See NRS 48.025 (stating that relevant evidence is generally admissible). A review of the record reveals that the aforementioned information was relevant to resolving Martinelli's petition for nonparent visitation. See NRS 125C.050(6); see also Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004) (“The court must hear all information regarding domestic violence in order to determine the child's best interests.”). Martinelli does not demonstrate that the risk of unfair prejudice substantially outweighed the probative value of this evidence. See NRS 48.035(1) (“Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice ․”). Accordingly, Martinelli fails to demonstrate the district court's decision was arbitrary or capricious or exceeded the bounds of law or reason. See Skender, 122 Nev. at 1435, 148 P.3d at 714. Martinelli therefore fails to demonstrate the district court abused its discretion by denying his motion.

Third, Martinelli argues the district court abused its discretion by denying his petition to establish nonparent visitation with the child. He contends the district court did not properly evaluate the evidence concerning the petition. Martinelli also argues the district court abused its discretion by limiting his time to present his case and refused to consider evidence in support of his request for visitation.

A district court decision regarding visitation rights is reviewed for an abuse of discretion. Ramos v. Franklin, 139 Nev. 54, 60, 525 P.3d 1227, 1232 (2023). “We uphold the district court's factual findings if they are supported by substantial evidence and not clearly erroneous.” Id. Substantial evidence is that which a reasonable person may accept as adequate to sustain a judgment. Ellis, 123 Nev. at 149, 161 P.3d at 242. “It is presumed that a trial court has properly exercised its discretion in determining a child's best interest.” Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). Moreover, “[h]earing and trial procedures, such as ․ the scheduling of hearings, so long as within the parameters of the governing rules, are matters vested in the sound discretion of the trial court.” Zupancic v. Sierra Vista Recreation, 97 Nev. 187, 192, 625 P.2d 1177, 1180 (1981); see also Matter of J.B., 140 Nev., Adv. Op. 39, 550 P.3d 333, 339 (2024) (noting a district court “retains broad scheduling powers”).

Persons who have resided with a child and established a meaningful relationship may petition the district court for reasonable visitation if the parents of the child have unreasonably denied visitation. NRS 125C.050(2)-(3). However, if a parent has denied visitation with the child, there is a rebuttable presumption that granting visitation to the petitioner is not in the child's best interest. NRS 1250.050(4). To rebut this presumption, a petitioner must demonstrate by clear and convincing evidence that it is in the best interest of the child to grant visitation. Id. When determining whether a petitioner has rebutted the presumption, the district court shall consider the factors enumerated in NRS 1250.050(6).

The district court permitted each party to have 90 minutes to present evidence and arguments at the evidentiary hearing. Del Real testified concerning her relationship with Martinelli and his interactions with the child. Del Real discussed an act of domestic violence in which Martinelli slammed a door into her and she explained that act occurred in the presence of the child. Of note, the district court admitted a video recording depicting that act and reviewed it during the evidentiary hearing. In addition, Del Real testified that Martinelli verbally abused her. She also testified that Martinelli was arrested in Arizona for driving while under the influence of alcohol and that the child was a passenger in the vehicle at that time. Del Real further explained that Martinelli abused alcohol and that his issues with alcohol had a negative impact upon the child and his relationship with her and her extended family. Del Real also explained that the child suffers from chronic pancreatitis and he sees a specialist for treatment and care for that condition. She further explained the child has to be hospitalized often due to that condition and that leads to missed time at school.

The district court also admitted the child's interview and Del Real explained that, in the interview, the child expressed his wishes to not visit Martinelli. Del Real testified that she did not tell the child what to state in the interview but rather told him to state the truth and explain his answers.

Martinelli testified and stated that he had previously resided with the child and had a parent-like relationship with the child. Martinelli also expressed his belief that he was able to help the child with his schooling and medical care.

The district court, in its written order, found that Martinelli had a relationship with the child but, because Del Real denied his request to visit the child, there was a rebuttable presumption that granting his request to establish visitation was not in the child's best interests. See NRS 125C.050(4). The court further noted that Martinelli therefore had the burden to rebut that presumption by clear and convincing evidence. See id. To that end, the district court reviewed the factors under NRS 125C.050(6) to evaluate whether Martinelli rebutted that presumption and, in reviewing those factors, the court determined he did not.

Specifically, the district court determined the evidence did not demonstrate there was love, affection or other emotional ties between Martinelli and the child; Martinelli did not have a genuine ability to give the child love or affection or provide guidance or serve as a role model; and his relationship with the child was fraught with conflict. See NRS 125C.050(6)(a), (b)(1), (c). The district court also determined the evidence demonstrated Martinelli had no apparent ability to cooperate with Del Real, which was critical due to the child's chronic medical issues. See NRS 125C.050(6)(b)(2), (b)(3), (g), (h).

The district court further noted Martinelli's issues with addiction as they related to his mental health and noted he had a history of abusive behavior toward Del Real, including acts done in the presence of the child. See NRS 125C.050(6)(j). In addition, the district court found the child expressed a clear preference not to have a continuing relationship with Martinelli and that the child was of sufficient maturity to form that opinion.¹ See NRS 125C.050(f).

In light of the foregoing, the district court concluded that Martinelli did not rebut the presumption against granting his request for visitation by clear and convincing evidence. The district court accordingly found that denying his petition to establish nonparent visitation was in the child's best interests.

Our review of the district court's order demonstrates it appropriately applied NRS 125C.050(4)’s rebuttable presumption and considered the appropriate factors to determine that Martinelli did not overcome that presumption. While Martinelli contends the court failed to properly evaluate and weigh the evidence, the court's factual findings made in support of its determinations are supported by substantial evidence in the record. See Ellis, 123 Nev. at 149, 161 P.3d at 242. This court will not second guess a district court's resolution of factual issues involving conflicting evidence or reconsider its credibility findings. See Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009). In addition, Martinelli does not demonstrate the district court abused its discretion by limiting the parties’ time to present evidence and arguments, see Zupancic, 97 Nev. at 1993, 625 P.2d at 1180, or that it improperly limited his introduction of evidence in support of the petition, see MC. Multi-Fam. Dev., L.L.C. v. Crestdale Assocs., Ltd., 124 Nev. 901, 913, 193 P.3d 536, 544 (2008) (reviewing a district court's decision concerning the admission of evidence for an abuse of discretion). Accordingly, we discern no abuse of discretion by the district court in denying Martinelli's petition to establish nonparent visitation. See Ramos, 139 Nev. at 60, 525 P.3d at 1232.

Fourth, Martinelli challenges the district court's decision to award attorney fees in favor of Del Real after determining he was a vexatious litigant and brought this matter to harass Del Real. Martinelli argues he did not get an opportunity to oppose the vexatious litigation determination and contends he should not have been directed to pay an attorney fees award because he was a pro se litigant who did not understand the legal process.

This court reviews orders declaring someone a vexatious litigant and awarding attorney fees for an abuse of discretion. Jordan v. State, Dep't of Motor Vehicles & Pub. Safety, 121 Nev. 44, 62, 110 P.3d 30, 44 (2005), abrogated on other grounds by Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 228 n.6, 181 P.3d 670, 672 n.6 (2008); Chowdhry v. NLVH, Inc., 109 Nev. 478, 485, 851 P.2d 459, 464 (1993). 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). Under NRS 18.010(2)(b), the district court may award attorney fees to a “prevailing party” when “the court finds that the claim ․ of the opposing party was brought or maintained without reasonable ground or to harass the prevailing party.”

Preliminarily, Martinelli's contention that he was not permitted an opportunity to oppose a designation as a vexatious litigant is without merit as he filed a written opposition to Del Real's motion seeking that designation. Martinelli accordingly had notice and an opportunity to respond to Del Real's request to declare him a vexatious litigant. Cf. Jordan, 121 Nev. at 63, 110 P.3d at 44 (stating a “sua sponte order [declaring a party a vexatious litigant], entered without first providing [the party] with notice or an opportunity to respond, violated [the party's] due process rights”).

Moreover, the district court made specific findings that Martinelli pursued this matter with the intent to harass Del Real, and those findings are supported by the record. See Chowdhry, 109 Nev. at 486, 851 P.2d at 464 (“[T]here must be evidence in the record supporting the proposition that the complaint was brought without reasonable grounds or to harass the other party.”). In addition, as discussed previously, Del Real discussed the Brunzell factors in her memorandum in support of her request for attorney fees and the record demonstrates the district court reviewed the memorandum, and concluded her request for an award of attorney fees was warranted based on the reasons set forth in her memorandum. See Logan v. Abe, 131 Nev. 260, 266, 350 P.3d 1139, 1143 (2015) (explaining it is preferable that the district court “expressly analyze each [Brunzell] factor relating to an award of attorney fees,” but the court “need only demonstrate that it considered the required factors, and the award must be supported by substantial evidence”). Accordingly, we determine that Martinelli fails to demonstrate the district court abused its discretion.²

Finally, Martinelli argues that the district court judge was biased against him. We conclude that relief is unwarranted on this point because Martinelli has not demonstrated that the judge's decisions in the underlying case were based on knowledge acquired outside of the proceedings and its decisions did not otherwise reflect “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Canarelli v. Eighth Jud. Dist. Ct., 138 Nev. 104, 107, 506 P.3d 334, 337 (2022) (internal quotation marks omitted) (explaining that unless an alleged bias has its origins in an extrajudicial source, disqualification is unwarranted absent a showing that the judge formed an opinion based on facts introduced during official judicial proceedings and which reflects deep-seated favoritism or antagonism that would render fair judgment impossible); see In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988) (providing that rulings made during official judicial proceedings generally “do not establish legally cognizable grounds for disqualification”); see also Rivero v. Rivero, 125 Nev. 410, 439, 216 P.3d 213, 233 (2009) (stating that the burden is on the party asserting bias to establish sufficient factual grounds for disqualification), overruled on other grounds by Romano v. Romano, 138 Nev. 1, 6, 501 P.3d 980, 984 (2022).

Having concluded Martinelli is not entitled to relief, we

ORDER the judgment of the district court AFFIRMED.³

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   Martinelli appears to argue the district court should not have utilized the child's statements in reaching its decision to reject his petition. However, Martinelli does not present cogent argument in support of this issue and, as a result, we need not consider it. 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).

2.   To the extent Martinelli also challenges the district court's decision to award attorney fees stemming from his motion to set aside and his motion for new trial, we conclude he fails to demonstrate the district court abused its discretion in this regard. See Chowdhry, 109 Nev. at 485, 851 P.2d at 464.

3.   To the extent Martinelli contends the district court abused its discretion by denying his motions to set aside judgment or for new trial, for the reasons identified previously, we conclude that the district court did not abuse its discretion by denying the motions. See Rodriguez v. Fiesta Palms, LLC, 134 Nev. 654, 656, 428 P.3d 255, 257 (2018) (“The district court has wide discretion in deciding whether to grant or deny a motion to set aside a judgment under NRCP 60(b).”); Lioce v. Cohen, 124 Nev. 1, 20, 174 P.3d 970, 982 (2008) (“On appeal, we review orders denying or granting motions for a new trial for an abuse of discretion.”). Insofar as Martinelli raises arguments that are not specifically addressed in this order, we have considered the same and conclude that they do not present a basis for relief.