                                                      132 Nev., Advance Opinion       W49
                         IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                   ELIEZER MIZRACHI,                                    No. 66176
                   Appellant,
                   vs.
                   DIANE MIZRACHI,
                                                                             FILED
                   Respondent.                                                SEP 1 5 2016
                                                                           14711.. K. LINDEMAN
                                                                         CLER F UPS -  4MEfit.tif
                                                                        BY
                                                                             CHIEF DEPUT CLERK

                              Appeal from a district court order granting a motion to clarify
                   the holiday parenting time provisions in the parties' divorce decree.
                   Eighth Judicial District Court, Family Court Division, Clark County;
                   Gerald W. Hardcastle, Senior Judge.'
                              Reversed and remanded.



                   Jacobson Law Office, Ltd., and Rachel M. Jacobson, Las Vegas,
                   for Appellant.

                   Diane Mizrachi, North Las Vegas,
                   in Pro Se.




                   BEFORE GIBBONS, C.J., TAO and SILVER, JJ.




                        'Although Judge Hardcastle signed the order, the Honorable Jack B.
                   Ames, Senior Judge, decided the motion at issue while sitting in
                   Department C.


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                                                     OPINION

                   By the Court, GIBBONS, C.J.:
                               In family law cases, parents are encouraged to work together
                   to reach agreements to allow them to maintain control over how they will
                   exercise custody of their children. See Bluestein v. Bluestein, 131 Nev. ,
                   , 345 P.3d 1044, 1047 (2015) ("Public policy encourages parents to enter
                   into private custody agreements for co-parenting."). And when they do,
                   the resulting agreements are generally enforceable, as long as "they are
                   not unconscionable, illegal, or in violation of public policy."    Rivera v.
                   Rivera, 125 Nev. 410, 429, 216 P.3d 213, 227 (2009). But even when
                   parents come to an agreement, disputes may later arise as to what the
                   parties meant by a term in the agreement, or whether the agreement is
                   working as the parties intended. Thus, when the agreement is
                   incorporated into a judgment, order, or decree, there are mechanisms in
                   place for parents to return to court to resolve such disputes.
                               In this appeal, we discuss one such dispute and the proper
                   method for resolving that dispute. In particular, we consider whether a
                   motion filed in the district court was a motion to modify an agreement-
                   based decree, or rather, was a motion to clarify, interpret, or construe the
                   decree. And we conclude that, in the underlying action, the district court
                   clarified, rather than modified, the parties' divorce decree, as that court
                   defined the rights assigned to the parties by the decree. While it was
                   proper for the court to clarify the decree, our review of the record
                   demonstrates that the district court did not apply the proper procedure in
                   doing so, as the court failed to take evidence or otherwise consider the
                   intent of the parties in reaching the agreement that led to the decree.



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                   Thus, we reverse the district court's decision and remand this matter to
                   the district court for further proceedings consistent with this opinion.
                                     FACTS AND PROCEDURAL HISTORY
                                Based on the parties' unwritten, out-of-court stipulation, the
                   district court entered a divorce decree drafted by respondent Diane
                   Mizrachi's attorney. 2 As relevant to this appeal, the decree grants the
                   parties joint legal and physical custody and provides that appellant
                   Eliezer Mizrachi (Eli) "will have the minor child for the Jewish holidays
                   every year," and Diane "will have the minor child on the Christian
                   holidays every year." The decree does not identify specific days or times or
                   otherwise define what is meant by "the Jewish holidays" or "the Christian
                   holidays."
                                Less than ten months after the court entered the divorce
                   decree, Diane filed a motion to clarify the decree as to the holiday
                   parenting time schedule, asserting that disputes had arisen between the
                   parties with regard to Eli's holiday parenting time. 3 In particular, Diane
                   asserted that Eli was requesting parenting time with the child for the full
                   period of 12 Jewish holidays, 4 whereas she believed the divorce decree only


                         2 EDCR  5.09(2) states "all contested divorces which are settled by the
                   parties with all issues resolved. .. may be submitted without hearing by
                   agreement of the parties and with the approval of the court."

                         'Diane's motion and Eli's subsequent countermotion contained
                   additional requests for relief beyond what is discussed in this opinion.
                   Because the district court's resolution of these additional requests is not
                   challenged on appeal, the requests are not discussed further herein.

                         4 Specifically,
                                    Eli asserted that he was entitled to parenting time on
                   Rosh Hashanah, Yom Kippur, Sukkot, Shemini Atzeret, Simchat Torah,
                   Hanukkah, Tu B'Shevat, Purim, Passover, Lag B'Omer, Shavuot, and
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                    allowed him to have holiday parenting time on the first day of Hanukkah,
                    Passover, Rosh Hashanah, and Yom Kippur. In support of her position,
                    Diane alleged that, during their 13-year marriage, Eli rarely observed any
                    of the Jewish holidays. She also noted that, if the provision was
                    interpreted as Eli suggested, there would be potential conflicts with her
                    parenting time on the Christian holidays, as the days of the Jewish and
                    Christian holidays sometimes overlap.
                                   In the motion, Diane asserted that each department of the
                    Family Division of the Eighth Judicial District Court used a default
                    schedule, which identified only Hanukkah, Passover, Rosh Hashanah, and
                    Yom Kippur as the relevant Jewish holidays for setting a custody
                    schedule. And she argued that the parties' divorce decree should be
                    interpreted consistently with the default schedule. 5 Eli opposed the
                    motion, contending that the decree's reference to "the Jewish holidays"
                    included all 12 of the holidays that he sought, which extended for the full
                    holiday time frame Moreover, Eli contended that Diane had agreed to
                    give him these holidays in exchange for him giving up certain other rights


                    ...continued
                    Tisha B'Av. In a post-decree letter that was attached to Diane's motion,
                    Eli indicated that he was willing to compromise to some extent on these
                    holidays. To that end, he stated that he wanted the full time period for
                    Yom Kippur (one day), Hanukkah (eight days), and Passover (eight days)
                    and at least the first night of four of the other holidays.

                          5Although the underlying case was assigned to Department C, Diane
                    attached the default schedule for Department D as an exhibit to her
                    motion. At a later hearing, her attorney represented that he spoke to
                    Department C's law clerk, who had informed him that Department C used
                    Department D's default schedule.


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                   in the divorce decree. Diane filed a reply, asserting that Eli gave up the
                   other rights for reasons unrelated to his holiday parenting time.
                                 The district court subsequently held a hearing on the motion,
                   but did not hear testimony or take other evidence Instead, the district
                   court, relying solely on the parties' verified pleadings, arguments of
                   counsel, and its own independent Internet research, found that "there
                   [was not] a clear understanding between the two parties at the time [of
                   the agreement] and there needs to be a clarification on the Jewish
                   holidays." To that end, the court granted Diane's request to clarify the
                   meaning of the term "the Jewish holidays" as used in the divorce decree.
                   In so doing, the court adopted Department D's religious holiday default
                   schedule, concluding that Eli would have holiday parenting time only on
                   the first day of Hanukkah, Passover, Rosh Hashanah, and Yom Kippur.
                   This appeal followed.
                                                    ANALYSIS
                                 Parties in family law matters are free to contract regarding
                   child custody and such agreements are generally "enforceable if they are
                   not unconscionable, illegal, or in violation of public policy." Rivero, 125
                   Nev. at 429, 216 P.3d at 227. Indeed, even beyond the idea that parents
                   are free to enter into such agreements, the Nevada Supreme Court has
                   gone further and explained that public policy favors parenting
                   agreements. 6 See Bluestein, 131 Nev. at , 345 P.3d at 1047; see also St.



                         6 The Nevada Revised Statutes and local court rules for several of the
                   judicial districts in Nevada also contemplate such agreements, further
                   demonstrating their desirability. See NRS 125C.0653(1) ("The parents
                   may modify an agreement regarding custodial responsibility. . . by
                   mutual consent"); see also NRS 123.080(1) (providing that parents can
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                   Mary v. Damon, 129 Nev.             ,       , 309 P.3d 1027, 1035-36 (2013)
                   (recognizing a presumption "that fit parents act in the best interest of
                   their children" and that public policy favors those parents entering into
                   custody agreements). Thus, parents are encouraged to reach such
                   agreements, and the court "will generally recognize the preclusive effect of
                   such agreements if they are deemed final."        See Rennels v. Rennels, 127
                   Nev. 564, 569, 257 P.3d 396, 399 (2011). Moreover, when parties enter
                   into a parenting agreement, the terms of that agreement will control
                   unless and until a party moves to modify those terms. 7 Rivera, 125 Nev. at
                   429, 216 P.3d at 226; see also Harrison v. Harrison, 132 Nev.        „ 376
                   P.3d 173,       (2016) (explaining that the appellate court will not rewrite a
                   contract to include terms not agreed to by the parties).
                                  While we reiterate that parenting agreements are valuable
                   and enforceable, see Rivero, 125 Nev. at 429, 216 P.3d at 227, we also
                   recognize that, despite the parties' best efforts in reaching such
                   agreements, disputes will sometimes arise once the parties begin putting
                   their agreed-upon terms into practice. Such is the situation here, where


                   ...continued
                   contract with each other "for the support. . . of their children" during a
                   legal separation); NRS 123.080(4) (providing for ratification and adoption
                   of contracts between spouses into decrees of divorce); NRS 125C.005(1)
                   ("The court may. . . require the parents to submit to the court a plan for
                   carrying out the court's order concerning custody."); see also FJDCR
                   25(1)(A); WDFCR 53(1)(a); 4JDCR 5(4); EDCR 5.70(a); NJDCR 26(a)(1).

                         7 VVhen  a motion to modify is filed, "the court must use the terms and
                   definitions provided under Nevada law" to resolve the motion, and at that
                   time, "the parties' definitions no longer control." Rivero, 125 Nev. at 429,
                   216 P.3d at 227.


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                   the parties discovered, after having agreed that Eli would have parenting
                   time on the Jewish holidays, that they disagreed as to what that term
                   actually meant.
                                 That disagreement has led to this appeal, in which Eli argues
                   that the district court erred by finding the holiday provision to be
                   ambiguous when the term could only be reasonably interpreted to mean
                   the 12 Jewish holidays for their full time span. He also contends that, to
                   the extent there was any ambiguity, the district court improperly failed to
                   consider the intent of the parties and to construe such ambiguity against
                   Diane, whose attorney drafted the decree. Finally, although Eli asserts
                   that the motion was presented and decided only as a motion for
                   clarification, he also argues that, by interpreting the term in the manner
                   that it did, the district court essentially modified the divorce decree
                   without considering whether the modification was in the child's best
                   interest. 8 Diane agrees that the term was unambiguous, but argues that




                         8 Elialso asserts that the district court failed to consider whether
                   there had been a change in circumstances. A change in circumstances
                   must be shown when modifying a primary physical custody arrangement,
                   but is not necessary to support a modification of a joint physical custody
                   arrangement. See River°, 125 Nev. at 430, 216 P.3d at 227 (explaining
                   that a joint physical custody arrangement may be modified whenever
                   modification "is in the child's best interest," but that a primary physical
                   custody arrangement may only be modified "when there is a substantial
                   change in the circumstances affecting the child and the modification
                   serves the child's best interest"). Because the parties in this case share
                   joint physical custody, even if the court did modify the custody
                   arrangement as Eli contends, no change in circumstances was necessary
                   to support that modification; the court would have needed to find only that
                   the modification was in the child's best interest. See id.


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                        the district court properly clarified the meaning of the term to include only
                        the first day of the four specified holidays.
                                    As a preliminary matter, Eli's argument regarding effective
                        modification raises the question of whether the district court actually
                        modified or only clarified the holiday parenting time provision in the
                        divorce decree. Thus, we begin our analysis by briefly addressing that
                        question before turning to the merits of the court's conclusion as to the
                        meaning of the term, "the Jewish holidays."
                        Clarification versus modification
                                     The Nevada Supreme Court has long distinguished between
                        an order modifying a judgment or decree and an order construing or
                        clarifying a judgment or decree. See Murphy v. Murphy, 64 Nev. 440, 445,
                        183 P.2d 632, 634 (1947) (concluding that the district court's order
                        defining the effect of a divorce decree but not changing that decree
                        construed, rather than modified, the decree) This distinction is important
                        in many cases because modification of a judgment may not be permitted,
                        absent special circumstances, once the judgment has become final and the
                        time for seeking relief from the judgment has passed.       See NRCP 60(b)
                        (generally limiting the time for filing certain motions for relief from a
                        judgment to six months); Kramer v. Kramer, 96 Nev. 759, 762-63, 616 P.2d
                        395, 397-98 (1980) (concluding that a district court lacked jurisdiction to
                        modify a divorce decree's property distribution provisions more than six
                        months after the decree was entered).
                                    Of course, custody cases are somewhat different because, on a
                        proper showing, a custody decision may be modified at any time. See NRS
                        125C.0045(1)(b) (providing that the court may modify its custody order at
                        any time). Nevertheless, the distinction between modification and
                        clarification is still important in custody cases because certain specific
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                   standards must be met in order for a court to properly modify a custody
                   order. See, e.g., River°, 125 Nev. at 430, 216 P.3d at 227 (explaining that,
                   to modify a joint physical custody arrangement, the court must find that
                   modification "is in the child's best interest[,]" and to modify a primary
                   physical custody arrangement, the court must find "a substantial change
                   in the circumstances affecting the child and [that] modification serves the
                   child's best interest"); see also Bluestein, 131 Nev. at , 345 P.3d at 1048-
                   49 (discussing modification of an agreement providing for joint physical
                   custody); Ellis v. Carucci, 123 Nev. 145, 149-53, 161 P.3d 239, 242-44
                   (2007) (discussing modification of primary physical custody
                   arrangements).
                               This distinction is also important because, on the clarification
                   side, the district court only "has inherent power to construe its judgments
                   and decrees for the purpose of removing any ambiguity."          Kishner v.
                   Kishner, 93 Nev. 220, 225-26, 562 P.2d 493, 496 (1977) (vacating an order
                   clarifying a judgment and decree because the judgment and decree was
                   not ambiguous, and thus, no clarification was warranted). Thus, we must
                   determine whether the court modified or clarified the decree in order to
                   consider whether the proper standards were applied.
                               To that end, the Nevada Supreme Court has held that a
                   modification "alters the parties' substantive rights, while a clarification
                   involves the district court defining the rights that have already been
                   awarded to the parties" and leaves their substantive rights unchanged.
                   Vaile v. Porsboll, 128 Nev. 27, 33, 268 P.3d 1272, 1276 (2012). Here, the
                   divorce decree assigned Eli the substantive right to exercise parenting
                   time on the Jewish holidays, and the district court did not purport to alter
                   that right in any way. Instead, the court merely sought to define which

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                   days were included within the meaning of the provision. Thus, we
                   conclude that the court was only clarifying the term, which it had
                   authority to do, so long as the term was ambiguous. See Kishner, 93 Nev.
                   at 225, 562 P.2d at 496.
                        Ambiguity
                               Our supreme court has held that a provision "is ambiguous if
                   it is capable of more than one reasonable interpretation."        See In re
                   Candelaria, 126 Nev. 408, 411, 245 P.3d 518, 520 (2010) (discussing
                   ambiguity of statutory language); see also Galardi v. Naples Polaris, LLC,
                   129 Nev. 306, 309, 301 P.3d 364, 366 (2013) (providing that "[a] contract is
                   ambiguous if its terms may reasonably be interpreted in more than one
                   way"). In this case, both parties assert that the term, "the Jewish
                   holidays," was unambiguous, but they each ascribe a different meaning to
                   that term. It follows that, if both meanings put forth by the parties are
                   reasonable, then the term would necessarily be ambiguous.                See
                   Candelaria, 126 Nev. at 411, 245 P.3d at 520; see also Galardi, 129 Nev. at
                   309, 301 P.3d at 366.
                               Eli asserts that "the Jewish holidays" means the full span of
                   12 specified holidays. As there were no restrictions placed on the term,
                   "the Jewish holidays," in the divorce decree, it is at least arguably
                   reasonable to interpret the term as including the full length of all of the
                   Jewish holidays sought by Eli.      See Jessica H. Ressler, Adjudicating
                   Custody and Visitation Matters Involving Jewish Families: What You
                   Didn't Know!, 40 Westchester B.J. 43, 51-57 (2015) (identifying a number
                   of Jewish holidays that may be relevant to custody determinations,
                   including the 12 holidays sought by Eli). On the other hand, insofar as
                   Diane's interpretation is consistent with the default schedule used by at
                   least two departments of the Family Division, it seems that her
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                   interpretation may also be a reasonable one. Indeed, because not all
                   Jewish followers observe all of the Jewish holidays, it could also be
                   reasonable to interpret the term as some other combination made up of
                   more than the four holidays identified by Diane, but less than all of the
                   Jewish holidays.     See id. at 49, 57-58 (explaining that an attorney
                   representing a Jewish client in a custody matter should ask the client
                   which holidays are celebrated "because every family is different," and
                   noting that the holidays that will need to be considered for a holiday
                   parenting schedule "will vary on a case-by-case basis"). As there are at
                   least two, and likely many more, reasonable interpretations of the term
                   "the Jewish holidays," the district court properly found that the term was
                   ambiguous. As a result, it was appropriate for the district court to
                   construe that term. See Kishner, 93 Nev. at 225, 562 P.2d at 496.
                   Clarification of the term "the Jewish holidays," as used in the decree
                               Having determined that it was proper for the court to construe
                   the term, we now turn to the procedure the court applied in doing so.
                   After determining that the provision needed to be clarified, the district
                   court simply adopted the default schedule offered by Diane without
                   considering what the parties actually intended when they agreed that Eli
                   would have parenting time on the Jewish holidays. But the parties'
                   arguments largely suggest that the court should have applied contract
                   interpretation principles to determine the intention of the parties in
                   reaching the agreement that ultimately yielded the underlying divorce
                   decree.
                               In considering agreement-based decrees, the Nevada Supreme
                   Court has indicated in some cases that, once an agreement is merged into
                   a decree, a court's application of contract principles, such as rescission,

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                   reformation, and partial performance, is improper to resolve a dispute
                   arising out of the decree. 9 See Vaile, 128 Nev. at 33 11.7, 268 P.3d at 1276
                   11.7. Nevertheless, other cases have treated agreement-based decrees as
                   contracts and directly applied contract interpretation principles without
                   addressing the propriety of doing so. See, e.g., Shelton v. Shelton, 119 Nev.
                   492, 78 P.3d 507 (2003). Thus, the extent to which contract principles may
                   apply to interpret an agreement-based decree is somewhat unclear under
                   current Nevada law. In this regard, two cases are instructive.
                               In Aseltine v. Second Judicial District Court, 57 Nev. 269, 271-
                   72, 62 P.2d 701, 701-02 (1936), the parties agreed to reduce the husband's
                   alimony obligation should his income be reduced, and that agreement was
                   merged into the divorce decree. Subsequently, the husband sought a
                   reduction in alimony based on the provision, but the district court denied
                   that request, finding that it would be an impermissible modification of the
                   decree. Id. at 272, 62 P.2d at 702.
                               In reviewing the district court's decision, the Nevada Supreme
                   Court explained that it needed to interpret the decree in order to
                   determine whether the decree permitted the change to the alimony. 10 Id.


                         9 Generally,when the district court approves and adopts the parties'
                   agreement into the decree of divorce, the agreement merges into the
                   decree unless both the decree and the agreement contain a clear and direct
                   expression that the agreement will survive the decree. Day v. Day, 80
                   Nev. 386, 389-90, 395 P.2d 321, 322-23 (1964). And when an agreement is
                   merged into a decree of divorce, it loses its character as an independent
                   agreement and the parties' rights "rest solely upon the decree." Id. at 389,
                   395 P.2d at 322. Merger is not an issue in this case.

                        wAt times, the Aseltine court spoke of modifying the provision in the
                   divorce decree, but because the court merely construed the decree and
                   modified the alimony based on that construction, it was not accurate to
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                   And in order to interpret the decree, the Aseltine court examined the
                   district court's intent, noting that, when there was ambiguity in a decree,
                   the reviewing court could look to the record as a whole and the
                   surrounding circumstances to determine the district court's intent.     Id. at
                   273, 62 P.2d at 702. Moreover, the Aseltine court came to the conclusion
                   that, in entering the decree, it must have been "the intention of the
                   [district] court, . . that the agreement of the parties should be given effect
                   according to its intent and spirit."       Id. at 274, 62 P.2d at 702. The
                   supreme court determined that the parties had intended to permit the
                   subsequent change to the alimony. Id. at 274,62 P.2d at 702-03. Thus,
                   the supreme court held that the district court's denial of the husband's
                   request for a reduction in alimony based on that provision was improper.
                   Id.
                                  Similarly, in Murphy, the parties agreed to alimony terms and
                   their agreement was merged into their divorce decree. 64 Nev. at 442, 183
                   P.2d at 633. In particular, the agreement provided for a reduced alimony
                   obligation if the husband's military rank reverted from Brigadier General
                   to Lieutenant Colonel.      Id. at 443, 451-52, 183 P.2d at 633, 637-38.
                   Several years later, the husband's rank reverted to Lieutenant Colonel for
                   one day, after which he was promoted to Colonel, the rank between
                   Brigadier General and Lieutenant Colonel.       Id. Thereafter, the husband
                   apparently asserted that his alimony should be reduced under the divorce

                   ...continued
                   say that the decree itself was modified See Aseltine, 57 Nev. at 272-74, 62
                   P.2d at 702-03; see also Murphy, 64 Nev. at 449-50, 183 P.2d at 636-37
                   (recognizing that the underlying motion in Aseltine did not actually seek a
                   modification of the decree).


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                   decree, and the wife moved the district court to construe the alimony
                   provision as providing that the one-day reversion to Lieutenant Colonel,
                   followed by the promotion to Colonel, was not the type of reversion
                   contemplated by the divorce decree.       Id. at 443, 183 P.2d at 633. The
                   district court granted the motion for clarification and held that this one-
                   day reversion did not trigger the reduced alimony obligation.     Id. at 443-
                   44, 183 P.2d at 634.
                               On appeal, the Murphy court held that the district court had
                   properly applied certain interpretation principles to construe the terms of
                   the decree, including the principles that agreements and their resulting
                   decrees "should be construed fairly and reasonably, and not too strictly or
                   technically." Id. at 452-53, 183 P.2d at 638. Further, like the Aseltine
                   court, the Murphy court also noted that an agreement underlying a decree
                   should be construed as meaning what it could be reasonably inferred that
                   the parties intended it to mean. Id. at 453, 183 P.2d at 638.
                               Thus, Murphy and Aseltine demonstrate that, as in contract
                   interpretation cases, see Galardi, 129 Nev. at 310, 301 P.3d at 367
                   ("Contract interpretation strives to discern and give effect to the parties'
                   intended meaning."), a court that is called upon to clarify the meaning of a
                   disputed term in an agreement-based decree must consider the intent of
                   the parties in entering into the agreement." See Murphy, 64 Nev. at 453,


                         "Of course, where, as here, the matter concerns child custody, a
                   court must also be mindful of whether the impact of the agreement is in
                   the child's best interest because, "filn Nevada, as in other states, the best
                   interest of the child is the paramount concern in determining the custody
                   and care of children." St. Mary, 129 Nev. at , 309 P.3d at 1033; see
                   NRS 125C.0035(1) ("In any action for determining physical custody of a
                   minor child, the sole consideration of the court is the best interest of the
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                   183 P.2d at 638; Aseltine, 57 Nev. at 274, 62 P.2d at 702; see also Harrison,
                   132 Nev. at , P.3d at (refusing to construe a provision in a
                   stipulated parenting agreement in a manner that would restrict the
                   meaning of the provision because to do so would "risk trampling the
                   parties' intent" as demonstrated by the language of the written
                   agreement). And in doing so, the court may look to the record as a whole
                   and the surrounding circumstances to interpret the parties' intent.       See
                   Aseltine, 57 Nev. at 273, 62 P.2d at 702.
                                  In this case, the district court adopted the default schedule,
                   but there is no indication in the record that the parties intended for the
                   default schedule to apply when they entered into their agreement. In
                   particular, nothing in the divorce decree referenced the default schedule,
                   and neither party asserted that they had even been aware of the default



                   ...continued
                   child."); Harrison, 132 Nev. at               P.3d at       (noting that the
                   "paramount public policy concern in child custody matters" is "the best
                   interest of the child"). Indeed, as far back as 1927, the Nevada Supreme
                   Court has recognized that a district court could go so far as to reject an
                   agreement reached by parents if the court determined that the agreement
                   was not in the child's best interest. See Atkins v. Atkins, 50 Nev. 333, 338-
                   39, 259 P. 288, 289-90 (1927) (affirming the district court's rejection of the
                   parties' agreement to waive child support where the court concluded that
                   the agreement was not for the good of the child), superseded by statute on
                   other grounds as stated in Lewis v. Hicks, 108 Nev. 1107, 1111-12, 843
                   P.2d 828, 831 (1992). Nevertheless, the court's involvement with a
                   parenting agreement should be exercised cautiously in light of the
                   presumption that fit parents act in their children's best interests, St.
                   Mary, 129 Nev. at , 309 P.3d at 1035, and the principle that the state
                   generally may only limit parental authority when severe concerns, such as
                   protecting a fundamental right or the safety of the parties' child, are at
                   stake. Harrison, 132 Nev. at , 376 P.3d at .

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                         schedule when they came to the agreement that led to the decree, much
                         less that they had meant for that schedule to apply to their arrangement.
                                     Instead, in seeking clarification of the decree, the parties each
                         made allegations suggesting that they had a particular intent when they
                         reached the agreement regarding the Jewish holidays. In particular, Eli's
                         arguments suggested that Diane was aware of all of the Jewish holidays
                         and agreed to give him parenting time on those days because he gave up
                         certain other rights. Diane, on the other hand, disputed Eli's explanation
                         as to why he gave up certain other rights and contended that she was
                         unaware of many of the holidays now sought by Eli because he did not
                         celebrate those holidays during their marriage. These assertions on both
                         sides present factual questions that should have been considered by the
                         district court to address the parties' intentions in giving Eli parenting
                         time on the Jewish holidays.
                                     Despite these factual issues, the district court did not hold an
                         evidentiary hearing or take any evidence to determine the intent of the
                         parties when they formed the agreement. Indeed, nothing in the record
                         before us indicates that the court even attempted to discern the intent of
                         the parties at all. Instead, the court made its decision based upon
                         contradictory sworn pleadings, arguments of counse1, 12 and its own
                         independent Internet research. In light of the foregoing discussion, we
                         conclude the district court should have held an evidentiary hearing to
                         determine the parties' intent at the time they agreed to share parenting


                                We note that arguments of counsel are not evidence. See Nev.
                               12

                         Ass'n Servs., Inc. v. Eighth Judicial Dist. Court, 130 Nev. , 338
                         P.3d 1250, 1255 (2014).


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                   time based upon the term "the Jewish holidays." 13 See Nev. Power Co. v.
                   Fluor Iii., 108 Nev. 638, 646, 837 P.2d 1354, 1360 (1992) (concluding that
                   an evidentiary hearing may be necessary in order to determine disputed
                   questions of fact); see also EDCR 2.21(a) (stating that an evidentiary
                   hearing may be held to resolve disputed factual contentions raised in
                   affidavits and declarations that support motions); EDCR 5.25(b) (stating
                   that factual contentions in family law matters must be presented to the
                   court pursuant to EDCR 2.21). And because the district court failed to
                   resolve the underlying factual issues or ascertain the parties' intent as to
                   what was encompassed by "the Jewish holidays," we conclude that the
                   court erred by interpreting the holiday provision in the decree to include
                   only the first day of the four designated Jewish holidays. See Shelton, 119
                   Nev. at 497, 78 P.3d at 510 (providing that the interpretation of an
                   agreement-based divorce decree presents a question of law); Evans v. Dean
                   Witter Reynolds, Inc.,    116 Nev. 598, 606, 5 P.3d 1043, 1048 (2000)




                         13 E1i argues that, if the agreement is ambiguous, it should be
                   construed against Diane because her attorney drafted the divorce decree.
                   See Anvui, LLC v. G.L. Dragon, LLC, 123 Nev. 212, 215-16,163 P.3d 405,
                   407 (2007) (providing that ambiguities in a contract are generally
                   construed against the drafter). It is not clear from the authority we have
                   considered whether it would be appropriate to apply that particular
                   principle of contract interpretation to a case involving the interpretation of
                   a custody decree. Nevertheless, once the district court takes evidence as
                   to the underlying facts and the parties' intent, it may be able to resolve
                   the ambiguity without resorting to construing it against Diane based on
                   her attorney drafting the divorce decree. Thus, we do not reach Eli's
                   argument that the agreement should be construed against Diane on that
                   basis.


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                   (providing that appellate courts conduct de novo review of questions of
                   law).
                                                  CONCLUSION
                                As used in the parties' parenting agreement, the term, "the
                   Jewish holidays," is ambiguous. The record, however, does not contain
                   sufficient evidence to discern the parties' intent at the time of their
                   agreement because the district court did not hold an evidentiary hearing
                   to resolve the disputed factual issues. Therefore, we reverse the district
                   court's decision construing the provision and remand this matter to the
                   district court for further proceedings consistent with this opinion.




                                                                                          , C.J.
                                                             Gibbons


                   We concur:


                                                   it
                   Tao



                   Silver




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