Opinion
No. 74188-COA
12-26-2018
JOEL TORRES, Appellant, v. ANA VICTORIA BERMUDEZ, Respondent.
ORDER REVERSING, VACATING, AND REMANDING
Joel Torres appeals from a district court order modifying a child support order. Eighth Judicial District Court, Family Court Division, Clark County; Rena G. Hughes, Judge.
Torres and respondent Ana Victoria Bermudez share joint legal and physical custody of their minor child. In 2010, both were unemployed and the district court ordered offsetting statutory minimum child support payments. In December 2016, Bermudez moved to modify the 2010 order, requesting primary physical custody and that the district court set Torres' child support payments at 18 percent of his income. At the subsequent evidentiary hearing, the district court granted the motion as to child support, modifying the 2010 order effective January 2016, but did not expressly address the custody motion. Instead, the court set child support based on a joint physical custody arrangement, adding interest and penalties to the resulting arrearages, and awarding attorney fees to Bermudez. Torres appeals that order, arguing that the district court's retroactive modification of the 2010 child support order was unlawful and that the district court thus erred awarding arrearages, adding interest and penalties, and awarding attorney fees.
We do not recount the facts except as necessary to our disposition.
"This court reviews the district court's decisions regarding child support for an abuse of discretion." Rivero v. Rivero, 125 Nev. 410, 438, 216 P.3d 213, 232 (2009). A court may not retroactively modify a child support order. See NRS 125B.140(1)(a) (A child support order "may not be retroactively modified or adjusted . . . ."); Khaldy v. Khaldy, 111 Nev. 374, 377, 892 P.2d 584, 586 (1995) ("Nevada case law clearly prohibits retroactive modification of a support order."). A court may, however, modify a child support order effective with the date of the motion to modify the order. Ramacciotti v. Ramacciotti, 106 Nev. 529, 532, 795 P.2d 988, 990 (1990) (clarifying that modification effective with the date of the motion to modify is not "retroactive") (citing Bowman v. Bowman, 459 P.2d 787, 789 (Wash. 1969)). This court reviews an award of attorney fees for an abuse of discretion. Logan v. Abe, 131 Nev. 260, 266, 350 P.3d 1139, 1143 (2015).
Here, Bermudez moved for modification in December 2016. The district court modified the child support order effective January 2016, eleven months before Bermudez moved for modification. We note that Bermudez has provided no relevant authority supporting the court's decision to do so. We conclude that the district court abused its discretion by modifying the child support order effective January 2016. The awards of interest and attorney fees are necessarily vacated and should be reevaluated based on the result of this order. See Baker v. Noback, 112 Nev. 1106, 1112, 922 P.2d 1201, 1204 (1996) (vacating an award of costs while reversing the underlying order).
We note for the district court's consideration when deciding attorney fees on remand that the June 7, 2017, order was likely also an unlawful retroactive modification of the original child support order, Bermudez moved for modification in May 2017, and the district court's June 7, 2017, order granted that motion, modifying effective May 2016. --------
We further conclude that the district court abused its discretion by adding penalties to the arrearages because no arrearage was yet delinquent—the same order that created the arrearages effectively penalized Torres for not yet paying those arrearages.
Accordingly, we
ORDER the district court's judgment REVERSED as to the retroactive modification of child support and any penalties, and VACATED as to the award of interest and attorney fees, and REMAND this matter to the district court for proceedings consistent with this order.
/s/_________, C.J.
Silver
/s/_________, J.
Tao
/s/_________, J.
Gibbons cc: Hon. Rena G. Hughes, District Judge
Hurtik Law & Associates
McFarling Law Group
Barbara Buckley
Snell & Wilmer
Anne R. Traum
Eighth District Court Clerk