                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                  SCOTT JOHN HALLINAN,                                     No. 65406
                  Appellant,
                  vs.
                  ERIKA NICOLE HALLINAN,
                  Respondent.
                                                                                     FILED
                                                                                     JAN 2 7 2616
                                                                                     ACIE K. LI EMAN

                                                                               ese

                                          ORDER OF AFFIRMANCE
                              This is an appeal from a post-divorce decree district court
                  order concerning child custody and relocation. Eighth Judicial District
                  Court, Family Court Division, Clark County; Jennifer Elliott, Judge.
                              The parties are divorced and have one child together. They
                  established an untraditional custody arrangement where the child spent
                  many months at a time in each parent's care. In July 2013, appellant,
                  who is a member of the United States Air Force, sought to modify custody
                  and relocate the child because appellant had been permanently assigned
                  to a military base in Okinawa, Japan In the time between the parties'
                  separation and appellant's motion, the child had been in respondent's sole
                  care for a 17-month period, had been in appellant's sole care for a 9-month
                  period, and had been back in respondent's sole care for 2 months. The
                  district court determined that it was in the child's best interest to remain
                  with respondent and denied appellant's motion to relocate the child.
                              Appellant first argues that under River° v. Rivero, 125 Nev.
                  410, 216 P.3d 213 (2009), he was the child's de facto primary physical
                  custodian because he had physical custody of the child for nearly ten
                  months in the year prior to filing the custody motion.   See River°, 125 Nev.

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                at 427, 216 P.3d at 225 (providing a guideline for determining when
                parties have de facto joint physical custody based on custodial time over
                the course of one year). Because the parties agreed to this arrangement
                with large blocks of custodial time, instead of one that changed on a
                weekly basis like the one at issue in Rivero, the district court did not
                abuse its discretion when it based its determination on the child's best
                interest and considered the parties' past custody arrangements beyond the
                Rivero guideline's one-year timeframe. See Wallace v. Wallace, 112 Nev.
                1015, 1019, 922 P.2d 541, 543 (1996) ("Matters of custody and support of
                minor children rest in the sound discretion of the trial court"); see also
                Bluestein v. Bluestein, 131 Nev., Adv. Op. 14, 345 P.3d 1044, 1048 (2015)
                (reiterating that "in custody matters, the child's best interest is
                paramount").
                           Appellant next argues that the district court considered
                evidence of physical custody and domestic violence that occurred before
                the parties' most recent custody order in violation of McMonig/e v.
                McMonigle, 110 Nev. 1407, 887 P.2d 742 (1994), overruled on other
                grounds by Castle v. Simmons,      120 Nev. 98, 86 P.3d 1042 (2004).
                Although McMonigle generally prohibits consideration of events preceding
                the most recent custody order from being used to establish a change of
                circumstances, McMonigle, 110 Nev. at 1408, 887 P.2d at 743, there is an
                exception for evidence of domestic violence that has not previously been
                presented to the court,    Castle, 120 Nev. at 105, 86 P.3d at 1047
                (concluding that the changed circumstances doctrine does not bar the
                presentation of evidence of domestic violence when a party or the court
                was unaware of the evidence at the time of the previous custody order).
                Additionally, no substantial changed circumstances were required for the

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                court to review custody as neither party had primary custody of the child,
                Riven, 125 Nev. at 430, 216 P.3d at 227, and regardless, appellant's
                relocation to Japan was a sufficient change in circumstances to warrant a
                review of custody, Hayes v. Gallacher, 115 Nev. 1, 7, 972 P.2d 1138, 1141
                (1999) (proposed relocation constituted changed circumstances and
                justified reexamining custody). Thus, this evidence was not prohibited by
                MeMonigle and the district court did not abuse its discretion when it
                heard the evidence as part of a consideration of the child's best interest.
                            Appellant also asserts that the district court impermissibly
                elicited evidence on respondent's behalf. While the district court played
                an active role in the relocation hearing and examined each witness, the
                district court's actions were not a violation of its duty to remain impartial.
                See NRS 50.145(2) (explaining that a judge may interrogate witnesses);
                Azbill v. State, 88 Nev. 240, 249, 495 P.2d 1064, 1070 (1972) ("A trial
                judge has the right to examine witnesses for the purpose of establishing
                the truth or clarifying testimony, but in doing so he must not become an
                advocate for either party . ."); NCJC Canon 2, Rule 2.2, Comment 4
                (providing that judges must remain impartial and may make reasonable
                accommodations to ensure self-represented litigants have an opportunity
                to have their matter fairly heard).
                            Lastly, appellant challenges the district court's factual
                findings and consideration of certain testimony. The admission of
                testimony from respondent's witness about out-of-court statements
                regarding appellant disciplining the child was harmless, as even without
                this testimony, there remains substantial evidence in the record for the
                court's finding that both parents had used corporal punishment. NRCP 61
                (providing that no error in the admission of evidence is ground for

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                 modifying or disturbing an order unless the error is inconsistent with
                 substantial justice); McMonigle,    110 Nev. at 1409, 887 P.2d at 744
                 (explaining that in a bench trial when a court receives inadmissible
                 evidence, it is presumed that the court disregarded the inadmissible
                 evidence when there is other substantial evidence upon which the court
                 based its findings). Substantial evidence also supports the district court's
                 findings regarding respondent's mental health, the child's relationships
                 with the parties' families, witness credibility, and that appellant had
                 reasonable alternative visitation.' Ellis v. Carucci, 123 Nev. 145, 149, 161
                 P.3d 239, 242 (2007).
                             Accordingly, we
                             ORDER the judgment of the district court AFFIRMED.



                                                                     C.J.
                                         Parraguirre


                                             J.                                         J.




                       'Any deficiency in the evidence regarding the district court's
                 comments about appellant's size and military training in the context of
                 domestic violence was harmless error, as the district court's findings of
                 domestic violence were independent of these considerations and the
                 evidence of domestic violence did not determine the district court's custody
                 decision, as the court found that both parties overcame the presumption in
                 NRS 125.480(5) (2009) and that the child would be safe in either party's
                 custody. NRCP 61.


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                    cc:   Hon. Jennifer Elliott, District Judge, Family Court Division
                          Pecos Law Group
                          Black & LoBello
                          Legal Aid Center of Southern Nevada
                          Anne R. Traum
                          Snell & Wilmer, LLP
                          Eighth District Court Clerk




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