Busse v. Busse (Child Custody)

(1991). If the parents share joint physical custody, the analysis differs. See Druckman v. Ruscitti, 130 Nev., Adv. Op. 50, 327 P.3d 511, 515-16 (2014); Potter v. Potter, 121 Nev. 613, 618, 119 P.3d 1246, 1249-50 (2005). When classifying a physical custody arrangement as joint or primary, courts should primarily consider whether joint or primary custody is in the children's best interest, while also inquiring whether each parent has custody at least 40 percent of the time. See Bluestein v. Bluestein, 131 Nev., Adv. Op. 14, 345 P.3d 1044, 1049 (2015). The district court considered respondent's openness in allowing frequent contact between appellant and the children, and found this demonstrated good co- parenting which enriched the children's lives, but also weighed in favor of maintaining respondent's status as primary physical custodian. The court also considered the parties' similar but different custody calendars and heard evidence regarding the parties' timeshare The district court's conclusion that respondent maintained primary custody, and thus, that the Schwartz analysis applied, is supported by substantial evidence and was not an abuse of discretion. See Bluestein, 131 Nev., Adv. Op. 14, 345 P.3d at 1049 (providing that a district court has broad discretion in matters of child custody); Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009) (explaining that this court will uphold district court factual findings if supported by substantial evidence). Appellant next argues that the district court abused its discretion when it determined that the Schwartz relocation factors weighed in favor of relocation. Specifically, appellant asserts that there was no evidence that respondent's or the children's quality of life would improve upon relocation, and that appellant's alternative visitation would not sufficiently foster and preserve his parental relationship with the

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children. See Schwartz, 107 Nev. at 382-83, 812 P.2d at 1271 (factors (1) and (5)). The district court, however, specifically considered both of these factors when it weighed the totality of the Schwartz factors and found that they counseled in favor of the relocation. Additionally, substantial evidence supports the district court's factual findings as to each factor. Ogawa, 125 Nev. at 668, 221 P.3d at 704. Finally, appellant challenges the district court's award of attorney fees. Under NRS 125.040, a district court may award attorney fees to a party in a divorce action. The award of attorney fees in divorce proceedings lies within the sound discretion of the trial judge. Miller v. Wilfong, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005). Although appellant argues that the $3,500 awarded was unfair because certain motion practice could have been avoided and because appellant lost the relocation motion, appellant has not demonstrated that the district court's attorney fee award was an abuse of discretion. See id. Accordingly, we ORDER the judginerinif the district court AFFIRMED.'

VC) j.

Gibbons Pickering

'We have determined that this appeal should be submitted for decision on the fast track briefing and appellate record without oral argument. See NRAP 3E(g)(1); NRAP 34(0(1).

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cc: Hon. Bryce C. Duckworth, District Judge, Family Court Division McFarling Law Group Fine Law Group Eighth District Court Clerk

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