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Nevada Appellate Court Summaries (2-8-22)

Check out these summaries of recent opinions from the Nevada Appellate Courts, as compiled by Joe Tommasino, Esq.

Supreme Court of Nevada

Family law: (1) In these consolidated appeals, the Supreme Court of Nevada considered the circumstances under which a district court may modify the joint physical custody of minor children and a parent’s child-support obligations; (2) as to custody, the Supreme Court held that a court may modify a joint or primary physical custody arrangement only if there has been a substantial change in circumstances affecting the welfare of the child and the modification serves the best interest of the child; and (3) as to child support, the Supreme Court held that new child-support guidelines alone do not constitute a change in circumstances necessary to support a motion to modify a child-support obligation. While Nevada caselaw in this area has been inconsistent, the Supreme Court has now clarified that regardless of whether a movant requests to modify joint custody or primary physical custody, the test to evaluate such a motion is one and the same—the movant 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.

Requiring the movant to show a substantial change in circumstances affecting the welfare of the child serves the important purpose of guaranteeing stability unless circumstances have changed to such an extent that a modification is appropriate. The Supreme Court overruled Rivero v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009), to the extent it indicates that a district court must first determine what type of physical custody arrangement exists before considering whether to modify that arrangement. With respect to the issue of child support, a district court may modify a child-support order if there has been a change in circumstances and the modification is in the child’s best interest. NRS 425.620 directs the Administrator of the Division of Welfare and Support Services (the agency) to establish the guidelines for child support and authorizes the agency to promulgate regulations such as NAC 425.170(3). NRS 425.450(1) also commands the agency to establish a formula for the adjustment of child support and “[t]he times at which such an adjustment is appropriate.” Because the Legislature specifically directed the agency “to ensure the maintenance of effective, efficient and appropriate guidelines that best serve the interests of the children of this State,” and expressly delegated the ability to determine when modification of child support fulfills those legislative goals, NAC 425.170(3) did not exceed the scope of the agency’s power. Thus, while Rivero and other Nevada cases provide that a district court typically may modify a support order when there is a legal change in circumstances, here the duly promulgated regulation carves out a minor exception to that general rule. A properly adopted substantive rule establishes a standard of conduct which has the force of law. While the Supreme Court “will not hesitate to declare a regulation invalid when the regulation violates the constitution, conflicts with existing statutory provisions or exceeds the statutory authority of the agency or is otherwise arbitrary and capricious,” none of those circumstances apply here. Accordingly, the district court did not abuse its discretion when it concluded that there was no change in circumstances warranting modification of child-support obligations. At Footnote 5, the Supreme Court noted that “[n]othing in this opinion overrules the dispositive aspects of Rivero, which define joint and primary physical custody and require the district court to make express findings of fact as to whether the moving party met the criteria for modifying physical custody.” Romano v. Romano (Child Custody) C/W 81439, 138 Nev. Adv. Op. No. 1, ___ P.3d ___ (January 13, 2022).

Jury selection: (1) A defense attorney’s overt interjection of racial stereotypes into a criminal trial constituted ineffective assistance of counsel and impermissibly tainted the jury pool by introducing racial invective into the proceedings; and (2) counsel’s performance fell below an objective standard of reasonableness and also prejudiced the defense. To prove ineffective assistance of counsel, a petitioner must demonstrate that counsel’s performance was deficient because it fell below an objective standard of reasonableness and resulted in prejudice such that, but for counsel’s errors, there is a reasonable probability of a different outcome in the proceedings. Withrespect to the prejudice prong, a reasonable probability is a probability sufficient to undermine confidence in the outcome. A petitioner must show both deficient performance and prejudice to warrant postconviction relief. The Supreme Court of Nevada gives deference to the district court’s factual findings if supported by substantial evidence and not clearly erroneous, but the Supreme Court reviews the district court’s application of the law to those facts de novo. A criminal defendant has a constitutional right to be tried by a fair and impartial jury.Jury selection is the primary means by which a court may enforce a defendant’s right to be tried by a jury free from ethnic, racial, or political prejudice or predisposition about the defendant’s culpability. In some cases, after weighing the risks and benefits, trial counsel may decide to raise the issue of race and racial prejudice during voir dire. Additionally, under some circumstances, counsel may be compelled to broach the issue of race. For example, counsel may be ineffective for not asking any individual questions of an empaneled juror “who expressly admitted her racially biased view that black people—including [the defendant]—are inherently more violent than other people.” But when probing for racial bias, counsel must discuss the subject in a careful and responsible manner. Here, defendant’s counsel chose to delve into possible racial bias among the prospective jurors but did so in a flawed and inappropriate manner. Counsel’s conduct went beyond an objectively reasonable inquiry into potential racial bias. The Supreme Court was concerned that “[t]he manner in which counsel approached the subject [of race] unnecessarily tended either to alienate jurors who did not share his animus against African Americans ‘just because they’re black,’ or to legitimize racial prejudice without accomplishing counsel’s stated objective of bringing latent bias out into the open.” Whether counsel himself believed any of the offensive stereotypes is immaterial because bringing such racial invective into the courtroom cannot be justified. Counsel’s conduct constituted deficient performance, as the Supreme Court discerned no reasonable basis for his method of exploring possible racial bias among the prospective jurors. Moreover, counsel’s offensive discussion about race resulted in prejudice. Because counsel performed deficiently and that performance resulted in prejudice, the defendant received ineffective assistance of counsel at trial. In this case, counsel’s conduct of discussing harmful racial stereotypes warranted intervention by the trial judge. Instead, the venire may have seen the judge’s silence as normalizing, or even tacitly approving, counsel’s offensive questioning. The United States Supreme Court has recognized “that if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts.” Here, the trial court neither cautioned counsel nor canvassed any of the prospective jurors to assess whether the inappropriate comments had any adverse effect. Such actions were needed because “[t]he trial judge has a duty to restrict attorney conducted voir dire to its permissible scope: obtaining an impartial jury.” When counsel treads into improper or antagonistic lines of inquiry, it is incumbent on judges to exercise their discretion and reign in such behavior.Exercising reasonable control over the conduct of counsel safeguards not only the integrity of an individual trial proceeding but also the decorum and public confidence in the justice system as a whole. Thus, the Supreme Court took this opportunity “to urge trial judges to exercise reasonable control when counsel exceeds the appropriate bounds of voir dire.” At Footnote 2, the Court noted that it did not mean to suggest that the district court needed to reprimand counsel in front of the venire; rather, the district court could have excused the venire or conducted a bench conference to admonish counsel. Dean (Sean) v. Sheriff, 138 Nev. Adv. Op. No. 2, ___ P.3d ___ (January 13, 2022).

Statutes of limitations: (1) Declaratory-relief actions are not categorically exempt from statutes of limitations under City of Fernley v. State, Department of Taxation, 132 Nev. 32, 366 P.3d 699 (2016); (2) the four-year catch-all statute of limitations, NRS 11.220, applies to an action to determine the validity of a lien under NRS 40.010; and (3) the statute of limitations does not begin to run until the titleholder affirmatively repudiates the lien, which does not necessarily happen at the foreclosure sale. The case of City of Fernley held that declaratory or injunctive relief to prevent future constitutional violations is not subject to statutes of limitations based on when the violation first began. That case does not provide that declaratory relief is categorically exempt from statutes of limitation. Consistent with City of Fernley, a claim for declaratory relief cannot be used to circumvent the statute of limitations absent an alleged ongoing violation of a party’s constitutional rights. If a statute of limitations would bar a legal remedy based on the same substantive claim as underlies a request for declaratory relief, the limitations period will apply “[t]o prevent plaintiffs from making a mockery of the statute of limitations.” Separately, the Supreme Court of Nevada analyzed the nature of the relief sought in the instant case. Whether characterized as seeking declaratory relief or quiet title, the Court examines the nature of the substantive claim, as “[t]he nature of the claim, not its label, determines what statute of limitations applies.” NRS 40.010 permits an action by a party that claims an interest in real property against another party claiming an interest in that property to resolve the competing claims. Rather than any particular elements, parties must prove their interests in the property at issue and demonstrate superiority of title. Actions to resolve competing claims to title and clouds on title are quiet title actions brought under NRS 40.010. In this context, a declaration to quiet title resolving the status of the bank’s interest in the property is the substantive relief sought. When a right of action does not have an express limitations period, the Court will apply the most closely analogous limitations period, if one exists. NRS 11.220 provides a four-year catch-all limitations period for any right of action not otherwise provided for by law. When a statutory category of claim is broad enough to encompass many kinds of claims, such that it is “impossible to analogize them to any other type of claim consistently,” it is appropriate to apply the catch-all provision. Here, no statute of limitations specifically addresses a quiet title action involving a nonpossessory lien, so “this is exactly the type of situation for which NRS 11.220’s catch-all period was built.” Finally, the Court explained that the four-year catch-all limitations period is not triggered until the titleholder repudiates the lien. More specifically, the Court found that “[t]he limitations period does not begin to run until the lienholder receives notice of some affirmative action by the titleholder to repudiate the lien or that is otherwise inconsistent with the lien’s continued existence.” An HOA foreclosure sale—standing alone—does not sufficiently call the bank’s deed of trust into question to trigger the statute of limitations. To rise to the level that would trigger the limitations period, something more is required. U.S. Bank N.A. v. Thunder Properties, Inc. (NRAP 5), 138 Nev. Adv. Op. No. 3, ___ P.3d ___ (February 3, 2022).

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About the author: Joe Tommasino has served as Staff Attorney for the Las Vegas Justice Court since 1996. Joe is the President of the Nevada Association for Court Career Advancement (NACCA).

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