                                                  132 Nev., Advance Opinion 14
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                KERSTAN MICONE, N/K/A KERSTAN                        No. 67934
                HUBBS,
                Appellant,
                vs.
                                                                             FILED
                MICHAEL MICONE,                                               MAR 03 2916
                Respondent.                                               TIFAAHI K. UNDEMAN
                                                                       cLE@Iptiot •    ME CQIII'
                                                                       BY                   )00   1,   A
                                                                            CHIEit dEP-11


                           Appeal from a post-divorce decree order modifying child
                custody and support. Eighth Judicial District Court, Family Court
                Division, Clark County; Rena G. Hughes, Judge.
                           Affirmed impart, reversed in part, and remanded.



                Black & LoBello and John D. Jones, Las Vegas,
                for Appellant.

                Prokopius & Beasley and Donn W Prokopius, Las Vegas,
                for Respondent.




                BEFORE HARDESTY, SAITTA and PICKERING, JJ.


                                               OPINION
                By the Court, PICKERING, J.:
                           This is an appeal from a district court order modifying a child
                custody and support decree to change primary physical custody from the
                child's mother to the child's grandparents. The grandparents were not


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                parties to the action, and the district court did not notify the parents that
                the grandparents were being considered as a custodial option. Without
                joinder of the grandparents, notice to the parents that the grandparents
                might be awarded custody, and the requisite findings to overcome the
                parental preference, the district court's order cannot stand. We therefore
                reverse in part, affirm in part, and remand.
                                                      I.
                            In 2009, appellant Kerstan Micone and respondent Michael
                Micone divorced. The parties were awarded joint legal custody of their
                two minor children, while Kerstan received primary physical custody of
                both children. The divorce decree provided that after the 2009 school year,
                the children would attend public school unless both parents agreed to pay
                for private school. The Micones' daughter (I.M.) received poor grades in
                Las Vegas public schools, possibly due to I.M.'s dyslexia, so Michael agreed
                to pay half of I.M.'s private school tuition if she would attend private
                school in Reno. Kerstan and Michael agreed that it was in I.M.'s best
                interest for her to live during the school year with her paternal
                grandparents in Reno. Thereafter, in August 2013, I.M. moved to her
                grandparents' house in Reno, where she currently resides and attends
                school, returning to live with Kerstan in the summer.
                            In 2014, Michael, who lives in Reno, moved to change custody,
                seeking primary physical custody of I.M. Kerstan opposed any change in
                physical custody, conceding that she allowed I.M. to live with her
                grandparents in Reno, but objecting that this did not mean she agreed to
                change her physical custody status. On January 15, 2015, the district
                court found it was in I.M.'s best interest to reside with her grandparents
                and awarded primary physical custody to I.M.'s paternal grandparents,

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                         who were neither parties to, nor intervenors in, the action. The district
                         court concluded that because I.M. "is, and has been, residing with her
                         paternal grandparents since August 2013, neither parent has primary or
                         shared physical custody of the child after that date." Kerstan appeals.'


                                     This court reviews a child custody determination for an abuse
                         of discretion. See Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541,
                         543 (1996). While we have not authoritatively addressed child custody
                         awards to nonparty nonparents, we have held that a court must have
                         jurisdiction over a party before it can enter judgment affecting that party.
                         See Young v. Nev. Title Co.,   103 Nev. 436, 442, 744 P.2d 902, 905 (1987)
                         ("A court does not have jurisdiction to enter judgment for or against one
                         who is not a party to the action."). Applying Young to child custody cases
                         is consistent with how other courts have addressed this issue. See Landry
                         v. Nauls, 831 S.W.2d 603, 605 (Tex. Ct. App. 1992); see also Elton H. v.
                         Naomi R., 119 P.3d 969, 979 (Alaska 2005) (requiring that a nonparty
                         grandmother consent to becoming a party upon remand to be considered a
                         custodial option).




                                'We reject Kerstan's issue-preclusion-based challenge to the district
                         court's order barring modification of certain child support arrearages, as
                         the order relies on video transcript from a June 26, 2013, hearing, which
                         Kerstan failed to include in the record on appeal. See Carson Ready Mix,
                         Inc. v. First Nat'l Bank of Nev., 97 Nev. 474, 476, 635 P.2d 276, 277 (1981)
                         (declining to consider matters that do not properly appear in the record on
                         appeal); see also Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598,
                         603, 172 P.3d 131, 135 (2007) ("When an appellant fails to include
                         necessary documentation in the record, we necessarily presume that the
                         missing portion supports the district court's decision.").

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                              In Landry, the Texas Court of Appeals considered whether the
                 trial court abused its discretion by awarding permanent managing
                 conservatorship to the nonparty paternal grandmother without
                 overcoming the parental preference statute. 831 S.W.2d at 606. The court
                 held that "[lit is no longer sufficient for the trial court to merely state that
                 an award of custody to a nonparent is in the best interest of the child." Id.
                 at 605. Instead, a nonparent must either "bring or intervene in a custody
                 suit" and present evidence to overcome parental preference to be awarded
                 custody of a minor child. Id. We conclude that Landry is consistent with
                 Nevada law, as NRS 125.510 (2013) 2 demonstrates that the court should
                 have jurisdiction over parties in child custody disputes. NRS 125.510
                 ("The party seeking such an order shall submit to the jurisdiction of the
                 court for the purposes of this subsection." (emphasis added)) (repealed by
                 2015 Nev. Stat., ch. 445, § 10, at 2586); see also NRS 125A.345(3) ("The
                 obligation to join a party and the right to intervene as a party in a child
                 custody proceeding conducted pursuant to the provisions of this chapter
                 are governed by the law of this state as in child custody proceedings
                 between residents of this state.").
                              If a court awards custody to a nonparent that neither brought
                 nor intervened in the custody action, the parties' due process rights may
                 be violated. See Gonzales-Alpizar v. Griffith, 130 Nev., Adv. Op. 2, 317
                 P.3d 820, 827 (2014) (providing that procedural due process requires
                 reasonable notice and an opportunity to present objections); see also NRS



                       2While the Legislature repealed NRS 125.510 in 2015, the same
                 language was added to NRS Chapter 125C. See A.B. 263, 78th Leg. (Nev.
                 2015).

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                125A.345(1) (requiring notice and an opportunity to be heard for child
                custody determinations); Anonymous v. Anonymous,         353 So. 2d 515, 519
                (Ala. 1977) (holding award of child custody to nonparty grandparent
                violated parent's due process rights because "the custody dispute centered
                around and was focused upon, the parties"); Elton H., 119 P.3d at 979
                (requiring the parties to the dispute to have sufficient notice of the
                possibility that a nonparty will receive custody to satisfy due process).
                            Here, the district court's unilateral award of custody to the
                nonparty grandparents failed to provide the notice and opportunity to be
                heard that fundamental fairness, indeed, due process, requires on an issue
                as important as child custody. In Michael's motion to change custody, and
                Kerstan's opposition, both parties argued how I.M.'s best interest would be
                served or disserved by primary custody lying with Michael, as opposed to
                Kerstan, or vice versa. Neither party briefed or argued whether awarding
                primary physical custody to the grandparents was justified or would be in
                I.M's best interest. The surprise award of custody to the nonparty
                grandparents violated the Micones' due process rights.          See Gonzales-
                Alpizar, 130 Nev., Adv. Op. 2, 317 P.3d at 827.
                            Additionally, the district court failed to make specific findings
                that awarding custody to either Michael or Kerstan would be detrimental
                to I.M. and the award of custody to the paternal grandparents was in
                I.M.'s best interest. See NRS 125.500(1) 3 (requiring a district court to find
                that "an award of custody to a parent would be detrimental to the child



                      3 Similarto NRS 125.510, the Legislature repealed NRS 125.500 in
                2015, but added the same language to NRS Chapter 125C. See A.B. 263,
                78th Leg. (Nev. 2015).

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                   and the award to a nonparent is required to serve the best interest of the
                   child" before awarding custody to a nonparent). Though the district court
                   found that Michael and Kerstan consented to I.M. residing with her
                   grandparents, Kerstan maintains that she did not consent to changing her
                   custody status. Thus, the district court needed to make the requisite
                   findings under NRS 125.500 before awarding custody to the grandparents.
                               We note that Kerstan argues a change in custody is
                   unwarranted when a custodial parent sends a child to live with a third-
                   party for educational or similar interests, such as sending a child to
                   boarding school. See, e.g., DaSilva v. DaSilva, 15 Cal. Rptr. 3d 59, 62 (Ct.
                   App. 2004). Kerstan did not present this argument below until her
                   reconsideration motion, which the district court declined to hear pending
                   appeal in this court. Upon remand, the district court should consider
                   these arguments on the merits, as it is inappropriate for this court to do so
                   without the issues being decided below. CI Arnold v. Kip, 123 Nev. 410,
                   417, 168 P.3d 1050, 1054 (2007).


                               To be awarded custody of a minor child, a nonparent must
                   either "bring or intervene in a custody suit" and present evidence to
                   overcome the parental preference. Here, because the grandparents
                   neither brought nor intervened in the custody suit, the district court failed
                   to notify the Micones that it was considering the grandparents as a
                   custodial option, and the district court did not make the requisite findings
                   to overcome the parental preference, we conclude that the district court
                   abused its discretion. Accordingly, we reverse the district court's award of
                   primary physical custody to the nonparty grandparents, affirm its order



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                    regarding issue preclusion, and remand for proceedings consistent with
                    this opinion.


                                                                                  J.



                    We concur:


                                                  J.
                    Hardesty

                                              ,   J.
                    Saitta




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