MYISHA GRAY v. ESTER GRAY (2026)

ORDER OF AFFIRMANCE

Myisha M. Gray appeals from a district court order modifying custody of a child. Eighth Judicial District Court, Family Division, Clark County; Nadin Cutter, Judge.

Myisha and respondent Ester Gray were previously married and share one child in common. The child was born in 2017.

Myisha subsequently filed a complaint for divorce. Prior to the entry of the divorce decree, Ester filed a motion in December 2021 requesting the district court award her primary physical custody of the child because she alleged that on or about September 5, 2021, Myisha had engaged in an act of domestic violence involving physical restraint, threats, and the use of a gun (the gun incident). Myisha filed an opposition and countermotion for primary physical custody in which she denied the gun incident occurred.¹

The parties subsequently reached an agreement regarding their divorce proceedings, and the district court entered a decree of divorce in 2022. The district court adopted the parties’ agreement to award Myisha and Ester joint physical and legal custody. As is relevant to the claims on appeal, the divorce decree included an “event” provision which provided that Myisha had the ability, with seven days’ advance notice to Ester, to take the child to an event which occurred on a weekend. The “event” provision provided that if Ester already had plans with the child, Ester's parenting time would trump Myisha's event. The term “event” was not defined in the divorce decree.

Ester subsequently filed two motions to modify physical custody from joint to primary. In her first motion, filed in November 2023, Ester argued there was a change in circumstances sufficient to warrant modification. Ester alleged that she had received a phone call from Myisha's girlfriend Rochelle, stating that Rochelle and Myisha had been in a domestic dispute while the child was present (the phone call incident). For support, Ester provided the district court with an audio recording of Rochelle's second phone call, placed a few hours later. Myisha filed an opposition and countermotion for primary physical custody on an order shortening time. At a hearing on the parties’ motions, as relevant to this appeal, the district court found that the contents of the audio recording did not provide good cause to modify custody, concluding that the incident reflected Ester and Myisha “worked [together] in a moment of stress to keep [the child's] interests above their own.”

In November 2024, Ester filed a second motion to modify physical custody and a motion for an order to show cause why Myisha should not be held in contempt for taking the child during Ester's parenting time without authorization or consent. In support of this motion, Ester contended a substantial change in circumstances had occurred that warranted modification of physical custody. Ester noted that Myisha had been arrested on September 28, 2024, for engaging in domestic violence against her while in the presence of the child (the soccer game incident). Ester also asserted that Myisha had repeatedly used the “event” provision of the divorce decree to take the child without her authorization or consent. Based on these allegations, Ester contended that modification of custody to award her primary physical custody of the child was in the child's best interest. Ester additionally sought an award of attorney fees and costs.

Myisha filed an opposition to Ester's motion in which she essentially alleged there had been no change in circumstances warranting modification of physical custody. Ester thereafter filed a reply in support of her motion. The district court entered an order finding a substantial change in circumstances based on the soccer game incident and granting temporary primary physical custody to Ester.

The district court subsequently conducted an evidentiary hearing concerning Ester's request to modify the custody arrangement. Myisha and Ester testified at the hearing. In particular, the parties testified regarding the gun incident, the phone call incident, and the soccer game incident, the disputes they had over their respective interpretation of the “event” provision of the divorce decree, and incidents in which Myisha took the child over Ester's objection.

With regard to the gun incident, Ester testified that during a dispute, Myisha had placed her in a chokehold and held a gun to her head. Ester also testified she had obtained a temporary order of protection against Myisha in the wake of the gun incident, and that Myisha had subsequently been arrested for violating the order. With respect to the phone call incident, Ester testified she received a phone call from Myisha's girlfriend Rochelle late in the evening on November 8, 2023. Ester testified that during the call, Rochelle stated that she and Myisha were in a domestic dispute and that she had taken the child and her own children to a neighbor's residence. Ester testified that Rochelle called her a second time. During that call—which Ester recorded with Rochelle's apparent consent—Rochelle made reference to the gun incident, stating to Myisha (who was close enough to Rochelle for her voice to be heard on the recording), “You held a gun to [Ester's] head,” and other similar statements. As is relevant here, the district court admitted a copy of the recorded call from the phone call incident over Myisha's objection that Ester had lacked consent to record the call.

With respect to the soccer game incident, Ester testified that on September 20, 2024, Myisha sent her a message requesting custody of the child for the weekend of September 28 for a family event. Ester testified that she declined Myisha's request but proposed swapping custody days to allow the child to attend the event. Ester testified that Myisha did not respond to her alternative proposal. Ester testified that on September 28, 2024, she and Myisha attended a soccer game for the child with their respective partners. Ester testified that after the soccer game, Myisha said she was taking the child for the family event. Ester explained Myisha then came up behind her and used her arm and elbow to push and hit her to separate her from the child. Myisha then grabbed the child by the arm and forced the child into a vehicle owned by Rochelle as he screamed and cried. Alyssa Conte, a disinterested person, who had witnessed the soccer game incident and provided law enforcement with a witness statement, also testified regarding her observations of the soccer game incident and identified Myisha as the aggressor. Finally, Ester testified as to several incidents in which she and Myisha had disputes regarding the “event” provision and instances in which Myisha took the child over her objections.

In her own testimony, Myisha denied each alleged instance of domestic violence. Myisha denied that the gun incident occurred but acknowledged that Ester had obtained a temporary order of protection and that she had been arrested for violating the terms of that order. With respect to the phone call incident, Myisha denied she had been in a domestic dispute with Rochelle and insinuated that Rochelle was dishonest and had been intoxicated when she called Ester. Myisha also denied the soccer game incident occurred, and alleged that both Ester and Ms. Conte had not testified truthfully. Myisha did acknowledge that she had taken the child on three different occasions over Ester's objection.

The district court later entered a written order granting Ester's motion to modify custody. The court found the evidence presented at the hearing demonstrated that a substantial change in circumstances had occurred since the entry of the divorce decree. Specifically, the district court found that the evidence presented at the evidentiary hearing demonstrated that Myisha had engaged in domestic violence against both Ester and the child during the soccer game incident and further found that Myisha had used the “event” provision of the divorce decree to infringe on Ester's parenting time.

The district court also reviewed NRS 125C.0035(4)’s best interest factors and found, based on those factors, that it was in the child's best interest to modify the custody arrangement. Additionally, the district court found that clear and convincing evidence demonstrated Myisha's actions during the soccer game incident amounted to domestic violence. See NRS 125C.0035(5) (stating, in relevant part, that a finding by clear and convincing evidence that a parent engaged in acts of domestic violence against the child or a parent of the child creates a rebuttable presumption that joint physical custody is not in the best interest of the child); NRS 125C.230(1) (same). The district court also explained it determined Myisha's testimony was not credible, noting particular concern with Myisha's denial of the events surrounding the soccer game incident.

The district court accordingly awarded Ester primary physical custody of the child. It also provided Myisha with parenting time every week and on the first weekend of every month. The district court also modified the parenting time schedule to terminate the “event” provision. Finally, the district court indicated it would consider awarding Ester attorney fees and costs and ordered Ester to submit a Brunzell ² memorandum.

Ester duly filed a memorandum of fees and costs seeking a total of $46,989.25 in attorney fees and costs. In support of her request for fees and costs, Ester asserted Myisha caused unnecessary delay by refusing to resolve the parties’ numerous disputes over physical custody and other issues, including the soccer game incident. Ester also argued she was entitled to attorney fees pursuant to NRS 18.010(2)(b) because she alleged that Myisha's defense was brought or maintained without reasonable grounds or to harass her. Myisha filed an objection arguing: (1) an award of fees and costs was not warranted because her refusal of a pre-evidentiary hearing settlement offer was not unreasonable; (2) any award should be adjusted downward in light of the disparity in the parties’ respective incomes; (3) the requested fees were excessive and lacked sufficient itemization; and (4) the Brunzell factors did not support an award of $46,989.25.

The district court subsequently entered a written order in which it found that an award of attorney fees to Ester was warranted pursuant to NRS 18.010(2)(b) and EDCR 7.60(b) because Myisha had caused unnecessary delay in the proceedings. The district court found that the Brunzell factors favored an award of attorney fees but reduced the award to $20,000 in light of the income disparity between the parties.³ This appeal followed.

The district court did not abuse its discretion in modifying custody

First, Myisha challenges the district court's decision to modify custody and argues the district court erred by considering allegations of previously knowns acts of domestic violence that were barred by res judicata in determining whether there had been a substantial change in circumstances warranting modification of physical custody. This court reviews district court decisions regarding child custody for an abuse of discretion. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007). In reviewing child custody determinations, this court will affirm the district court's factual findings if they are supported by substantial evidence, “which is evidence that a reasonable person may accept as adequate to sustain a judgment.” Id. at 149, 161 P.3d at 242. When making a custody determination, the sole consideration is the best interest of the child. NRS 125C.0035(1); Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015). Further, we presume the district court properly exercised its discretion in determining the child's best interest. Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004).

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 v. Romano, 138 Nev. 1, 3, 501 P.3d 980, 982 (2022) (emphasis added), abrogated in part on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev. 401, 404-05, 535 P.3d 1167, 1171 (2023). Moreover, a district court must consider the best interest factors in deciding whether to modify custody. Nance v. Ferraro, 134 Nev. 152, 161, 418 P.3d 679, 687 (Ct. App. 2018). To that end, because of the “very real threat domestic violence poses to a child's safety and well-being when determining custody between parents,” this court has held that “[d]omestic violence allegations must be carefully considered in child custody proceedings.” Soldo-Allesio v. Ferguson, 141 Nev., Adv. Op. 9, 565 P.3d 842, 844 (Ct. App. 2025) (internal quotation marks omitted).

While a party seeking to modify physical custody cannot use evidence of domestic violence known to the parties or the court at the time the prior custody order was put in place to demonstrate a substantial change in circumstances warranting a modification of custody, such evidence may be considered when determining whether modification is in the child's best interest. Nance, 134 Nev. at 163, 418 P.3d at 688. In addition, “[t]he court must hear all information regarding domestic violence in order to determine the child's best interests.” Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004).

Contrary to Myisha's argument, the record reflects that the district court did not consider either the gun incident or the phone call incident in determining whether there was a substantial change in circumstances. Rather, the court considered the previously known incidents in assessing whether modification was in the best interest of the child pursuant to NRS 125C.0035(4)(k), which requires a court to consider “[w]hether either parent ․ has engaged in an act of domestic violence against the child, [or] a parent of the child.” The district court particularly noted that the gun incident and the soccer game incident—and Myisha's denial that the gun incident occurred—tipped factor (k) in favor of Ester. The court further noted that it had found in the temporary custody order that the soccer game incident was a new domestic violence incident which constituted a substantial change in circumstances. We therefore conclude that Myisha has not demonstrated that the district court improperly considered these prior acts of domestic violence in determining whether modification of physical custody was appropriate.

Second, Myisha argues the district court abused its discretion at the evidentiary hearing by admitting the recorded call from the phone call incident. Myisha contends on appeal that the recorded call constituted hearsay, and that Ester had not laid a foundation that Rochelle had personal knowledge of the gun incident. In response, Ester argues that Myisha failed to object on these grounds below and has therefore forfeited this claim. Ester further argues that even if the claim is not forfeited, the district court did not plainly abuse its discretion in admitting the recorded call. Myisha replies that she lodged a hearsay objection “while the foundation for [the recorded call] was being laid,” and that in any event, this court should review the claim for plain error.

Having considered the arguments and briefs of the parties, along with the record on appeal, we discern no reversible error in the district court's decision. As discussed above, Myisha's sole objection to the admission of the recorded call was that Ester had recorded it without consent. As a result, Myisha has forfeited her other arguments presented on appeal. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (“A point not urged in the trial court, unless it goes to the jurisdiction of that court, is deemed to have been waived and will not be considered on appeal.”). Further, her argument on appeal is different from the one she raised below, which is improper. See Schuck v. Signature Flight Support of Nev., Inc., 126 Nev. 434, 437, 245 P.3d 542, 544 (2010) (“[P]arties may not raise a new theory for the first time on appeal, which is inconsistent with or different from the one raised below.” (internal quotation marks omitted)). In addition, Myisha does not demonstrate that any decision to admit the phone call recording was an “error [that] is so unmistakable that it reveals itself by a casual inspection of the record.” Williams v. Zellhoefer, 89 Nev. 579, 580, 517 P.2d 789, 789 (1983) (citation omitted). Accordingly, Myisha fails to demonstrate she is entitled to relief under a plain error standard. See In re J.D.N., 128 Nev. 462, 469, 283 P.3d 842, 847 (2012) (“Relief under the plain error standard is rarely granted in civil cases and is reserved for those situations where it has been demonstrated that the failure to grant relief will result in a manifest injustice or a miscarriage of justice.” (quoting 5 Am. Jur. 2d Appellate Review § 720 (2007))); see also Jeremias v. State, 134 Nev. 46, 51-52, 412 P.3d 43, 49 (2018) (stating “the decision whether to correct a forfeited error is discretionary”). Therefore, we conclude Myisha is not entitled to relief based on this argument.

Third, Myisha argues the district court acted arbitrarily and capriciously by relying on the recorded call in modifying physical custody. Myisha argues that the court initially found in its order regarding Ester's first motion to modify custody that the contents of the recorded call demonstrated both parents working cooperatively, yet the district court, in its order modifying physical custody, revisited that decision and found the recorded call demonstrated Myisha had engaged in an act of domestic violence. Myisha asserts that the district court's new findings based on the same evidence amounted to an arbitrary and capricious decision.

As noted previously, this court reviews district court decisions regarding child custody for an abuse of discretion and will affirm factual findings if they are supported by substantial evidence. Ellis, 123 Nev. at 149, 161 P.3d at 241-24. A district court “must hear all information regarding domestic violence in order to determine the child's best interests.” Castle, 120 Nev. at 105, 86 P.3d at 1047. Moreover “credibility determinations and the weighing of evidence are left to the trier of fact.” Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 365-66, 212 P.3d 1068, 1080 (2009).

Having reviewed the record on appeal, we conclude the district court did not clearly abuse its discretion in determining that the recorded call supported a finding that modification of physical custody was in the child's best interest. In its order, the district court cited to the recorded call as providing support for its credibility determination against Myisha, finding that Ester's testimony, the issuance of the temporary order of protection, and the contents of the recorded call “led to the adverse credibility finding against Myisha.” And Myisha does not demonstrate that the court's decision to consider the call in the context of its overall determination of the child's best interest amounted to an abuse of discretion, particularly in light of the allegations of Myisha's acts of domestic violence. See Castle, 120 Nev. at 105, 86 P.3d at 1047; see also Davis, 131 Nev. at 451, 352 P.3d at 1143 (“In making a child custody determination, the sole consideration of the court is the best interest of the child.” (internal quotation marks omitted)). While Myisha argues that the district court should not have found the challenged incident weighed against her, this court is not at liberty to reweigh the evidence. See Grosjean, 125 Nev. at 366, 212 P.3d at 1080; see also In re J.D.N., 128 Nev. at 477, 283 P.3d at 852 (“As the family division of the district court is in a better position to weigh the credibility of witnesses, we will not substitute our judgment for that of the district court.”). We therefore conclude that Myisha has not demonstrated the district court abused its discretion and she is not entitled to relief based on this argument.

Fourth, Myisha asserts that the district court abused its discretion by determining that her act of pulling the child's arm during the soccer game incident constituted domestic violence. In assessing NRS 125C.0035(4)(k)—which requires a court to consider whether “either parent or any other person seeking physical custody has engaged in an act of domestic violence against the child, a parent of the child or any other person residing with the child”—the district court found that Myisha committed domestic violence against both Ester and the child by pushing and hitting Ester and by “yanking” or “pulling” the child by the arm. Myisha argues this was an abuse of discretion because there was insufficient evidence to establish she “yanked” the child, and because “Nevada law does not recognize grabbing a child's arm to guide them as domestic violence or improper conduct.”

Having reviewed the record on appeal, we need not determine if the district court's finding that Myisha engaged in an act of domestic violence against the child was supported by substantial evidence. See Ellis, 123 Nev. at 149, 161 P.3d at 241-42. Significantly, Myisha does not dispute the district court's finding that she committed an act of domestic violence against Ester during the soccer game incident. Thus, even assuming the district court abused its discretion in finding that Myisha committed an act of domestic violence against the child, the fact that Myisha committed an act of domestic violence by pushing and hitting Ester was a factor that the district court properly weighed against Myisha and in favor of Ester pursuant to NRS 125C.0035(4)(k). Furthermore, Myisha does not argue, let alone demonstrate, that the district court abused its discretion by determining her other actions during the soccer game incident, coupled with her use of the “event” provision in the divorce decree to infringe on Ester's parenting time, amounted to a substantial change in circumstance affecting the welfare of the child. See Romano, 138 Nev. at 3, 501 P.3d at 982. As a result, any error in determining that Myisha committed domestic violence against the child is harmless.

Fifth, Myisha contends the district court failed to consider evidence she presented at the evidentiary hearing that tended to rebut the domestic violence presumption. The court found that the evidence presented at the evidentiary hearing demonstrated by clear and convincing evidence that Myisha engaged in acts of domestic violence such that there was a rebuttable presumption that sole or joint physical custody by Myisha was not in the child's best interest. See NRS 125C.0035(5); see also Soldo-Allesio, 141 Nev., Adv. Op. 9, 565 P.3d at 848 (“Nevada has adopted a rebuttable presumption against awarding a parent physical custody—whether joint, primary, or sole—where it has been established by clear and convincing evidence that the parent committed domestic violence.”). The district court also noted that in light of its adverse credibility determinations, Myisha had failed to rebut the presumption.

The aforementioned factual findings made in support of these determinations are supported by substantial evidence in the record, see Ellis, 123 Nev. at 149, 161 P.3d at 242, and this court is not at liberty to reweigh the evidence or the district court's credibility determinations, see Grosjean, 125 Nev. at 366, 212 P.3d at 1080. Accordingly, we conclude Myisha has failed to demonstrate the district court did not consider evidence rebutting the NRS 125C.0035(5) presumption and that she likewise fails to demonstrate the district court abused its discretion by applying that statute's rebuttable presumption that sole or joint physical custody by Myisha was not in the child's best interest. See Soldo-Allesio, 141 Nev., Adv. Op. 9, 565 P.3d at 848. Therefore, we conclude that Myisha is not entitled to relief based on this argument. The district court did not abuse its discretion in awarding Ester attorney fees Finally, Myisha argues the district court abused its discretion in awarding Ester attorney fees. Myisha asserts that she did not maintain a frivolous position during the litigation and did not multiply the proceedings or create unnecessary delay. Myisha further asserts that the amount of attorney fees awarded by the district court are excessive and unreasonable in light of the income disparity between the parties.

“The decision to award attorney fees is within the sound discretion of the district court and will not be overturned absent a manifest abuse of discretion.” Kahn v. Morse & Mowbray, 121 Nev. 464, 479, 117 P.3d 227, 238 (2005) (internal quotation marks omitted); Rivero v. Rivero, 125 Nev. 410, 440-41, 216 P.3d 213, 234 (2009) (reviewing an award of attorney fees under EDCR 7.60(b) for an abuse of discretion), overruled on other grounds by Romano, 138 Nev. at 6, 501 P.3d at 984. An abuse of discretion occurs when the court's decision is not supported by substantial evidence, Otak Nev., LLC v. Eighth Jud. Dist. Ct., 129 Nev. 799, 805, 312 P.3d 491, 496 (2013), “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. When awarding attorney fees in a family law case, the court must consider the factors set forth in Brunzell v. Golden Gate National Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969), and must also consider the disparity in income pursuant to Wright v. Osburn, 114 Nev. 1367, 1370, 970 P.2d 1071, 1073 (1998). Miller v. Wilfong, 121 Nev. 619, 623-24, 119 P.3d 727, 730 (2005).

A district “court may, after notice and an opportunity to be heard, impose upon an attorney or a party any and all sanctions that may, under the facts of the case, be reasonable, including the imposition of fines, costs, or attorney fees when an attorney or a party without just cause ․ [s]o multiplies the proceedings in a case as to increase costs unreasonably and vexatiously.” EDCR 7.60(b)(3); see also EDCR 5.219(b) (stating same). In addition, 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.” This section is to be “liberally construe[d] ․ in favor of awarding attorney's fees in all appropriate situations.” Id. “[I]f the record reveals that counsel or any party has brought, maintained, or defended an action in bad faith, the rationale for awarding attorney fees is even stronger.” See Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 996, 860 P.2d 720, 724 (1993); see also NRS 125C.250 (stating a court may award reasonable attorney fees and costs in an action determining child custody).

Having reviewed the record on appeal, we conclude Myisha has not demonstrated the district court manifestly abused its discretion in awarding Ester attorney fees. Here, the court found that Myisha increased the proceedings causing unnecessary delay and did so with an intent to harass Ester, and also found that Myisha had notice and an opportunity to be heard concerning those issues. See NRS 18.010(2)(b); EDCR 5.219(b); EDCR 7.60(b)(3). These findings are supported by substantial evidence. See Roe v. Roe, 139 Nev. 163, 182-83, 535 P.3d 274, 293 (Ct. App. 2023) (“EDCR 7.60(b)(3) allow[s] a district court in the family division to order sanctions, including an award of attorney fees, if a party, without just cause, multiplies the proceedings in a case as to increase costs unreasonably and vexatiously.” (internal quotation marks omitted)).

Furthermore, the record belies Myisha's claim that the district court did not evaluate whether the requested attorney fees were excessive and unreasonable in light of the income disparities between her and Ester. As discussed above, Ester initially requested a total award of $46,989.25 in attorney fees and costs. In its order awarding Ester attorney fees, the district court expressly considered the income disparity between the parties and reduced the award by more than half to $20,000 for attorney fees, and made no award for costs. The district court also considered the Brunzell factors and determined that an award of $20,000 was reasonable in this matter. See Logan v. Abe, 131 Nev. 260, 266, 350 P.3d 1139, 1143 (2015) (stating “the district court need only demonstrate that it considered the required factors, and the award must be supported by substantial evidence”). We conclude Myisha does not demonstrate district court abused its discretion in awarding Ester attorney fees pursuant to NRS 18.010(2)(b), EDCR 5.219, and EDCR 7.60(b)(3). In addition, the district court's findings pursuant to the Brunzell factors are supported by the record. Therefore, we discern no abuse of discretion in the district court's award of attorney fees in favor of Ester. See Kahn, 121 Nev. at 479, 117 P.3d at 238.

Having considered the foregoing and determining Myisha is not entitled to relief, we

ORDER the judgment of the district court AFFIRMED.  ⁴

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   The district court conducted a hearing on the parties’ motions but did not grant either of them. Although the district court expressed concern regarding the gun incident, it ordered that Myisha and Ester would share temporary joint physical and legal custody and referred them to mediation.

2.   Brunzell v. Golden Gate Nat. Bank, 85 Nev. 345, 455 P.2d 31 (1969).

3.   We note the written order awarding attorney fees in favor of Ester was entered prior to entry of the written order modifying the child custody arrangement. Thus, we may review Myisha's challenge to the attorney fee award as it was an interlocutory order entered prior to the final custody decision in this matter. See Consolidated Generator v. Cummins Engine, 114 Nev. 1304, 1312, 971 P.2d 1251, 1256 (1998) (explaining that appellate courts have jurisdiction to consider interlocutory orders within the context of an appeal from a final judgment).

4.   To the extent Myisha raises other arguments that are not specifically addressed in this order, we have considered the same and conclude they do not provide a basis for relief.