McMONIGLE v. McMONIGLE

Factual and Procedural Background

On March 2, 1992, Susan Grandgeorge (then Susan McMonigle) and Robert McMonigle were divorced, with the district court awarding primary custody of their child, Mari, to Susan. On March 17, 1993, Robert filed a motion to modify custody and obtained an ex parte restraining order granting him custody pending a hearing. The initial hearing on March 23, 1993, left the restraining order unchanged. In June 1993, the court granted Robert temporary custody. After a seven-day evidentiary hearing from September 7 to October 6, 1993, the court awarded Robert permanent custody. Susan appealed the custody modification order.

Legal Issues Presented

Whether the district court properly applied the legal standard for modifying child custody by considering only relevant evidence of changed circumstances occurring after the most recent custody order.

Whether the district court erred by relying on evidence predating the divorce judgment to justify changing custody.

Whether the court’s reliance on Susan’s relocation prior to the divorce judgment was appropriate under Nevada custody modification law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968)	Standard for modifying child custody requires showing (1) material change in circumstances of the parents, and (2) substantial enhancement of child's welfare by the change.	The court applied the Murphy standard to determine that only changed circumstances after the last custody order can justify modification, and found the district court improperly considered evidence predating the divorce judgment.
Stevens v. Stevens, 810 P.2d 1334 (Or.Ct.App. 1991)	Events predating the most recent custody order are inadmissible to establish a change of circumstances.	Used to reinforce the principle that pre-divorce evidence was irrelevant and should not have influenced the custody modification decision.
Dep't of Highways v. Campbell, 80 Nev. 23, 388 P.2d 733 (1964)	Harmless error doctrine: if inadmissible evidence is received but there is other substantial evidence, the court is presumed to have disregarded the improper evidence.	The court distinguished the present case because the district court expressly relied on inadmissible evidence, thus adversely affecting Susan’s substantial rights.

Precedent

Rule or Principle Cited For

Application by the Court

Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968)

Standard for modifying child custody requires showing (1) material change in circumstances of the parents, and (2) substantial enhancement of child's welfare by the change.

The court applied the Murphy standard to determine that only changed circumstances after the last custody order can justify modification, and found the district court improperly considered evidence predating the divorce judgment.

Stevens v. Stevens, 810 P.2d 1334 (Or.Ct.App. 1991)

Events predating the most recent custody order are inadmissible to establish a change of circumstances.

Used to reinforce the principle that pre-divorce evidence was irrelevant and should not have influenced the custody modification decision.

Dep't of Highways v. Campbell, 80 Nev. 23, 388 P.2d 733 (1964)

Harmless error doctrine: if inadmissible evidence is received but there is other substantial evidence, the court is presumed to have disregarded the improper evidence.

The court distinguished the present case because the district court expressly relied on inadmissible evidence, thus adversely affecting Susan’s substantial rights.

Court's Reasoning and Analysis

The court analyzed the district court’s custody modification decision under the established legal standard from Murphy v. Murphy, which requires a material change in circumstances occurring after the last custody order and a substantial enhancement of the child's welfare. The court found that the district court improperly considered evidence relating to events before the March 2, 1992 divorce judgment, including Susan’s relocation to Kansas City in November 1991 and reports from 1990. Although the district court acknowledged that pre-divorce evidence was not relevant, it nonetheless based much of its decision on that evidence, particularly Susan’s out-of-state residence.

The appellate court emphasized that such consideration was improper under Nevada law. It further noted that while harmless error may apply when inadmissible evidence does not affect substantial rights, here the district court expressly relied on the inadmissible evidence, notably the fact that Susan lived outside Nevada. This reliance adversely affected Susan’s substantial rights because the court indicated it would have allowed shared custody if Susan resided locally. Consequently, the appellate court reversed the custody modification and remanded with instructions to restore primary custody to Susan.

Holding and Implications

The court reversed the district court’s order modifying custody and remanded with instructions to restore primary custody of Mari to Susan McMonigle.

The direct effect of this decision is the reinstatement of primary custody to the appellant, Susan. The court’s ruling clarifies that custody modifications must strictly adhere to the legal standard requiring changed circumstances subsequent to the last custody order and prohibits reliance on irrelevant, pre-existing facts. No new precedent was established beyond reaffirmation of existing principles under Nevada law.

SUSAN L. McMONIGLE, APPELLANT, v. ROBERT M. McMONIGLE, RESPONDENT.

OPINION

Per Curiam:

On March 2, 1992, appellant Susan Grandgeorge (Susan), then Susan McMonigle, and respondent Robert McMonigle (Robert) were divorced. The district court ordered primary custody of their one child, Mari, to Susan.

On March 17, 1993, Robert filed a motion to modify custody. The same day an ex parte restraining order gave him custody of Mari pending a hearing. On March 23, 1993, an initial hearing left the restraining order unchanged. In June, 1993, the district court gave Robert temporary custody. After a seven-day hearing which stretched from September 7 to October 6, 1993, the court awarded Robert permanent custody of Mari. Susan appealed.

We now reverse the order changing custody because the district judge improperly based her decision in large part on irrelevant evidence.

Once primary custody has been established, a court can consider changing custody only if "(1) the circumstances of the parents have been materially altered; and (2) the child's welfare would be substantially enhanced by the change." Murphy v. Murphy, 84 Nev. 710, 711, 447 P.2d 664, 665 (1968). "The moving party in a custody proceeding must show that circumstances . . . have substantially changed since the most recent custodial order. . . . Events that took place before that proceeding [are] inadmissible to establish a change of circumstances." Stevens v. Stevens, 810 P.2d 1334, 1336 (Or.Ct.App. 1991) (citations omitted).

The district court set forth the Murphy standard in its final order, but did not explicitly specify the circumstances it found altered. However, it is clear that some of the circumstances it considered were not appropriate under Murphy.

During the long evidentiary hearing in this case, the district court received extensive testimony and numerous exhibits relating to the period before March 2, 1992, the date of the divorce judgment and thus the last custody order prior to Robert's motion to modify custody. The court apparently realized this evidence was not relevant and stated in its final order that it had not addressed matters prior to the last custody order. Nevertheless, it expressly based its decision in large part on some of this evidence.

First, and most important, the district court improperly considered Susan's move to Kansas City and continued residence there. The court stated in its order that "any activities with respect to [Susan] which occurred prior to [her] move to Kansas City were disregarded." Thus, the court considered the move itself to be within its purview. However, Susan moved to Kansas City in November, 1991, before the final divorce judgment. In fact, that judgment noted that she had already moved and therefore ordered her to share Robert's travel expenses for visitation. Accordingly, consideration of Susan's relocation was improper under Murphy.

Second, the district court found it improper that Susan did not provide Robert with "certain reports" concerning Mari. This finding apparently refers to reports generated in Santa Barbara in 1990, about which extensive testimony and argument were heard. Again, consideration of this evidence was improper under Murphy.

It is harmless error if a court incorrectly admits evidence which does not affect the substantial rights of the parties. NRCP 61. Also, this court has held that "where inadmissible evidence has been received by the court, sitting without a jury, and there is other substantial evidence upon which the court based its findings, the court will be presumed to have disregarded the improper evidence." Dep't of Highways v. Campbell, 80 Nev. 23, 33, 388 P.2d 733, 738 (1964).

Whether there was other substantial evidence in this case is arguable but need not be decided because the court below, instead of disregarding inadmissible evidence, expressly relied on it in reaching its decision. Susan's substantial rights were adversely affected most notably by the court's preoccupation throughout the proceedings with her living in Kansas City. In fact, the court would have allowed Susan to retain shared primary custody but for the fact she lived out of state. The court stated in its temporary order of June 28, 1993: "If [Susan] moves to Las Vegas, there could be shared primary physical custody." In its final order it stated: "If both parents had resided in Clark County, Nevada, this decision would be an easy one. An award of joint legal and joint physical custody to both parents would permit a check and balance system to insure the needs of this magical child are met."

Since the district court considered Susan fit, absent the irrelevant fact that she lived outside Nevada, to share primary custody of Mari, we reverse and remand with instructions that primary custody be restored to Susan.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

SUSAN L. McMONIGLE, APPELLANT, v. ROBERT M. McMONIGLE, RESPONDENT.

Comments