KRAGEN v. DIST. CT. (KRAGEN)

140 Nev., Advance Opinion LA
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

ERIKA KRAGEN, No. 88187-COA
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
FILED
CLARK; AND THE HONORABLE PAUL AUG 1 5 20
M. GAUDET, DISTRICT JUDGE,
Respondents, CL COURT

and HIEF DEPUTY CLERK
MICHAEL KRAGEN,
Real Party in Interest.

Original petition for a writ of mandamus or prohibition
challenging a district court order in a divorce action assuming jurisdiction
over child custody issues.
Petition denied.

Onello Law Group, PLLC, and Jason W. Onello, Las Vegas,
for Petitioner.

McFarling Law Group and Emily M. McFarling, Las Vegas,
for Real Party in Interest.

BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and
WESTBROOK, JJ.

COURT OF APPEALS.
OF
NEVADA zei.2.ti3g
(0) 1947B
OPINION
By the Court, WESTBROOK, J.:
Petitioner Erika Kragen contends that the district court
improperly assumed jurisdiction over child custody determinations
concerning the minor children she shares with real party in interest
Michael Kragen. Erika posits that Nevada is not the children's "home state"
for purposes of the Uniform Child Custody Jurisdiction and Enforcement
Act (UCCJEA) because she physically removed the children from Nevada
just four days short of the six-month residency period set forth in NRS
125A.085(1). Michael contends that Erika's actions in removing the
children effected a "temporary absence" that did not interrupt their Nevada
residency until he filed for divorce a few weeks later. As a result, he argues
that the district court properly exercised home state jurisdiction over
custody matters in this case.
Although the UCCJEA does not define the phrase "temporary
absence," most UCCJEA states apply a totality of the circumstances test
when determining if an absence is temporary. Today we formally adopt this
approach and hold that, under the totality of the circumstances, the district
court properly found that Nevada has home state jurisdiction
notwithstanding the children's temporary absence from the state. We
therefore deny Erika's petition.
PROCEDURAL AND FACTUAL HISTORY
Erika and Michael were married in 2016 in San Diego,
California, and have three minor children together. On August 4, 2022,
they relocated from San Diego to Henderson, Nevada, where they lived with
Michael's parents. They subsequently enrolled their children in a private
school where Erika took a job as a teacher's aide.

COURT OF APPEALS
OF
NEVADA
2
(0) 1947R
On or about January 12, 2023, Erika indicated that she wanted
a trial separation from Michael. In response, Michael allegedly began
crying, grabbed a kitchen knife, pointed it at himself, and threatened
suicide. When Erika attenipted to calm him down, Michael walked outside
alone with the knife. Then, according to Erika, Michael stabbed the knife
through the netting of their children's trampoline, while Michael claimed
he threw the knife to the ground, inadvertently slicing the trampoline.
Erika did not call the police, nor did she seek a protective order at that time.
More than a week later, on January 21, Erika took the children
to San Diego to visit her family for a week during a school break. They
returned•to Henderson on January 29. Two days later, on January 31, while
Michael was still at work and unbeknownst to him, Erika again took the
children and drove back to stay with her family in San Diego. Only after
their departure did Erika notify Michael by text that they had left for San
Diego, that he was "welcome to call or visit," and that they "need[ed] a
divorce." Michael stayed behind in Nevada.
The parties agree that January 31 was the last day the children
were physically present in Nevada. Nevertheless, for several weeks after
their departure, the children remained enrolled in their Nevada school, and
Erika was still employed by the school. Erika and Michael also began
attending marriage counseling.
Towards the end of February, Erika stopped communicating
with Michael and withdrew the children from their school. On February 26,
after speaking with Erika over the phone, Michael realized their
relationship was over. That same day, he filed a complaint for divorce in

COURT OF APPEALS
OF
NEVADA
3
(0) 1947B
Clark County, Nevada. Two days later, on February 28, Erika petitioned
for legal separation in San Diego County, California.'
Erika was served with Michael's Nevada complaint on March 9
and filed an answer. More than two weeks later, on March 28, Erika applied
for an emergency domestic violence restraining order in California, citing

the January knife incident and prior alleged physical and emotional abuse.
On April 4, while Erika's restraining order request was pending in
California, the Nevada district court orally announced a temporary custody
arrangement providing that the parties would share joint legal and physical
custody of their children. This temporary order was reduced to writing on
April 20. Meanwhile, on April 18, the California court granted Erika's
request for the emergency domestic violence restraining order and also
issued its own temporary custody order awarding Erika sole legal custody
and joint physical custody, with Michael permitted two monitored visits per
week.'
The Nevada district court then held a telephonic conference
with the California court to address the competing temporary custody
orders and discuss which state had jurisdiction over the parties' children.
Both courts acknowledged that Nevada had jurisdiction over the parties'

"In her petition, Erika wrote that the children lived in Henderson,
Nevada, from August 1, 2022, to January 31, 2023.

2Although this arrangement would likely not constitute joint physical
custody under Nevada law, see Rivero v. Rivero, 125 Nev. 410, 417, 216 P.3d
213, 219 (2009) (defining joint physical custody generally as a parenting
time arrangement where each party has physical custody at least 40 percent
of the time), overruled on other grounds by Romano v. Romano, 138 Nev. 1,
3, 501 P.3d 980, 982 (2022), the California court's custody order was issued
on a form with a checked box indicating "joint" physical custody.
COURT OF APPEALS
OF
NEVADA
4
(0) 19478 •
divorce and the division of marital assets; they further recognized that the
children had resided in Nevada for close to the six months necessary to
establish Nevada's home state jurisdiction under the UCCJEA. The
California court ultimately agreed to "defer" to the Nevada court's decision
on the issue of child custody jurisdiction.
Following the telephonic conference, the Nevada district court
entered an order finding that it had home state jurisdiction over the parties'
children. The court determined that the children had resided in Nevada for
six consecutive months—between August 1, 2022, and January 31, 2023—
relying on Erika's statement in her California petition for legal separation.
Erika petitioned this court for a writ of mandamus or prohibition, arguing
that the district court abused its discretion by relying on the August 1 date
when the record contained evidence that they arrived in Nevada on a later
date. Noting that the district court had "conflicting evidence of the parties'
time in Nevada," this court granted Erika's petition and vacated the district
court's order with instructions to hold an evidentiary hearing and to
reconsider the jurisdictional issue. Kragen v. Eighth Jud. Dist. Ct., No.
86626-COA, 2023 WL 7141048, at *4 (Nev. Ct. App. Oct. 30, 2023) (Order
Granting Petition for Writ of Mandamus).
Thereafter, the Nevada court held an evidentiary hearing to
determine whether Nevada or California had home state jurisdiction. At
the hearing, both parties agreed that the children arrived in Nevada ori
August 4. However, the parties disputed whether the children's absence
from Nevada after January 31 was temporary or permanent.
Erika took the position that the children's state of residence
changed on January 31, testifying that the reason she moved back to San
Diego was "[b]ecause there was domestic violence." Erika further testified

COURT OF APPEALS
OF
NEVADA
5
(0) I947B 40jr.
that she had not intended to return to Nevada but acknowledged that she
and Michael began attending marriage counseling thereafter.
Michael testified that when Erika left with the children, he
believed they were coming back to Nevada for several reasons. Specifically,
the children were still enrolled in their Nevada school, and they had initially
moved to Nevada to attend that school; Erika was still employed at their
children's school as a teacher's aide; he and Erika began marriage
counseling, causing him to "expect things to go back to normal"; and Erika
did not lay down roots upon her arrival in San Diego. During closing
argument, Michael asserted that until the end of February, he believed the
children's absence from Nevada was temporary.
The district court entered an order finding that Nevada had
home state jurisdiction over the parties' children. The court recounted
Erika's stated reason for leaving Nevada due to domestic violence, as well
as Michael's reasons why he believed the children would return, and the
district court found Michael "to be more credible than [Erika] in relation to
stated intent pertaining to relocation to San Diego." The court determined
that Erika's testimony about the reason for her departure was not credible
because she did not pursue a restraining order in California until well after
she was served with Michael's complaint for divorce.3
The district court also found that Erika's decision to remove the
children without notice or permission from Michael was "unjustifiable
conduct" that was intended to defeat Nevada's home state jurisdiction. The
court noted that the statutory definition of "home state" included "any

3The court advised the parties it was not deciding whether domestic
violence had, in fact, occurred; rather, that issue would be determined at a
subsequent hearing when the court addressed the children's custody status.
COURT OF APPEALS
OF
NEVADA
6
(0) 1947B
temporary absence from the state" and that permitting Erika "to
circumvent this definition . . . by unilaterally departing that [s]tate with the
children, while giving the expectation of return through participation in
therapy and continued enrollment of the children in school would be grossly
unfair." As such, the court effectively concluded that the children's time in
San Diego from January 31 to February 26 constituted a temporary absence
that did not interrupt their Nevada residency. Including this tirne period,
the court determined that the children's residency exceeded the six
consecutive months required to establish Nevada's home state jurisdiction
under the UCCJEA. Erika then filed the instant petition for a writ of
mandamus or prohibition challenging the district court's exercise of home
state jurisdiction in this case.
ANALYSIS
We elect to entertain the writ petition
A writ of mandamus is appropriate to "compel the performance
of an act that the law requires or to control an arbitrary or capricious
exercise of discretion." Nev. Yellow Cab Corp. v. Eighth Jud. Dist. Ct., 123
Nev. 44, 49, 152 P.3d 737, 740 (2007). Alternatively, a writ of prohibition
may issue to "arrest[ ] the proceedings of any tribunal... when such
proceedings are without or in excess of the jurisdiction of such tribunal."
NRS 34.320. Writs of mandamus and prohibition are proper vehicles to
control a district court's alleged unauthorized exercise of jurisdiction during
child custody proceedings. See Friedman v. Eighth Jud. Dist. Ct., 127 Nev.
842, 854, 264 P.3d 1161, 1169 (2011) ("And, while discretionary, issuing
writs [of prohibition and mandamus] to ensure that courts comply with the
subject matter jurisdiction laws embodied by the UCCJEA is proper."). This
court may also exercise its discretion to consider a writ petition when "an

COURT OF APPEALS
OF
NEVADA
7
(0) 194713
important issue of law needs clarification." Int'l Garne Tech., Inc. v. Second
Jud. Dist. Ct., 124 Nev. 193, 197, 179 P.3d 556, 559 (2008).
Erika contends that the district court lacks jurisdiction over
child custody matters in this case. She argues that California, rather than
Nevada, has home state jurisdiction because the children only lived in
Nevada from August 4 until their departure on January 31—less than six
consecutive months. Cf. NRS 125A.085(1). Michael responds that the
district court properly exercised jurisdiction because the children's absence
from Nevada between January 31 and February 26 was temporary, such
that they resided in Nevada from August 4 to February 26—more than six
consecutive months. We elect to entertain Erika's extraordinary writ
petition to clarify an important and unsettled issue of law: how Nevada's
district courts should evaluate whether a child's absence from the state is
"temporary" under the UCCJEA. In doing so, we conclude that the district
court properly assumed home state jurisdiction.
The district court correctly found that Nevada has home state jurisdiction
Subject matter jurisdiction over child custody issues is
governed by the UCCJEA. NRS 125A.305. The UCCJEA elevates the
"home state" to principal importance in child custody determinations. Id.;
Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). "Home state"
is defined as "[t]he state in which a child lived with a parent . . for at least
6 consecutive months, including any temporary absence from the state,
immediately before the commencement of a child custody proceeding." NRS
125A.085(1) (emphasis added). "Thus, the definition 'permits a period of
temporary absence during the six-month time frame necessary to establish
home-state residency." Ogawa, 125 Nev. at 668, 221 P.3d at 704 (quoting
Felty v. Felty, 882 N.Y.S.2d 504, 508 (App. Div. 2009)). If Nevada either is
the child's home state on the date that custody proceedings commence, or if
COURT OF APPEALS
OF
NEVADA
8
(0) 1947R
Nevada was the child's home state within six months before the proceedings
commenced and the child is absent from the state but a parent continues to
live in Nevada, then Nevada courts have jurisdictional priority to make
initial child custody determinations. NRS 125A.305(1)(a).
Subject matter jurisdiction, including home state jurisdiction
under the UCCJEA, is a question of law subject to de novo review. Ogawa,
125 Nev. at 667, 221 P.3d at 704. "Although de novo, our review properly
includes decisions from other UCCJEA states so as to harmonize our law
with theirs." Friedman, 127 Nev. at 847, 264 P.3d at 1165 (citing NRS
125A.605). The district court's factual findings are given deference and will
be upheld so long as "they are supported by substantial evidence, which is
evidence that a reasonable person may accept as adequate to sustain a
judgment." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007)
(footnote omitted).
Neither the UCCJEA nor other Nevada statutes define
"temporary absence," and there is no single uniform test or definition that
all UCCJEA states apply when evaluating whether an absence is temporary
for purposes of determining home state jurisdiction. However, in Antonetti
v. Westerhausen, the Arizona Court of Appeals examined how other
jurisdictions evaluate whether an absence is "temporary" and found that
states generally use one of three tests: (1) the duration test, (2) the intent
test, or (3) the totality of the circumstances test. 523 P.3d 969, 973-74 (Ariz.
Ct. App. 2023).
The duration test "focuses strictly on the length of the child's
absence," and shorter absences are more likely to be considered temporary
than longer ones. Id. at 974. However, this test fails to account for either
longer absences intended to be temporary or shorter absences that later

COURT OF APPEALS
OF
NEVADA
9
(0) 194713 (46N.
become permanent. See, e.g., Ogawa, 125 Nev. at 663, 221 P.3d at 701
(noting that the children left Nevada for a temporary three-month vacation
before the children's father refused to return them). The intent test, on the
other hand, "requires courts to consider the parents' purpose for an absence
to determine whether it should be deemed temporary." Antonetti, 523 P.3d
at 974. One drawback to this approach is "the general difficulty of divining
parties' intent," which may change over time. Id. Further, the parties'
intentions may be conflicting or disputed, as they were in this case.
The last approach is the totality of the circumstances test. "As
the name indicates, the test looks at all the surrounding circumstances of a
purported temporary absence, including intent of the parties and duration
of the absence, to assess whether the absence should be treated as a
temporary departure from a putative home state." In re Marriage of
Schwartz & Battini, 410 P.3d 319, 325 (Or. Ct. App. 2017). Other relevant
considerations may include a parent's wrongful withholding of a child, see
Ogawa, 125 Nev. at 668, 221 P.3d at 704; "under what circumstances the
child came to and remained in the state;" In re Marriage of Richardson &
Richardson, 625 N.E.2d 1122, 1124 (Ill. App. Ct. 1993); and when the
nonmoving parent "had reason to recognize that the child's relocation was
perrnanent," Antonetti, 523 P.3d at 975.
The totality of the circumstances test is the most commonly
used approach among other jurisdictions that adopted the UCCJEA.
Antonetti, 523 P.3d at 974. Having considered the various approaches, we
too adopt the totality of the circumstances test, which offers the greatest
flexibility for the district courts to consider a wide array of relevant factors.
See NRS 125A.605; see also Kemp v. Turqueza, No. 86347, 2024 WL 396207,
at *3 (Nev. Jan. 31, 2024) (Order of Affirmance) (affirrning the district

COURT OF APPEALS
OF
NEVADA
10
(0) 194713
court's application of the totality of the circumstances test to evaluate
whether a child's absence from their home country was temporary).
In this case, although the district court did not expressly
reference the "totality of the circumstances" test in its decision and order,
the court nonetheless addressed the pertinent factors to conclude that
Nevada was the children's home state notwithstanding their temporary
absence from January 31 to February 26. Further, the court's findings were
supported by substantial evidence in the record and reflect its credibility
determinations, which we do not reweigh on appeal. See Ellis, 123 Nev. at
152, 161 P.3d at 244 ("[W]e leave witness credibility determinations to the
district court and will not reweigh credibility on appeal.").
First, the district court addressed the parties' intent. See
Antonetti, 523 P.3d at 974. The court considered Erika's testimony that she
left Nevada because of domestic violence, as well as Michael's testimony
that he believed Erika would return with the children, and concluded that
Michael was "more credible" than Erika when it came to the parties'
intentions. Although a moving parent's relocation is generally not weighed
against them when the move is to protect the parent or child from domestic
violence, see Felty, 882 N.Y.S.2d at 509, the court expressly found that Erika
did not remove the children from Nevada to protect them from domestic
violence, but rather did so to defeat home state jurisdiction. The district
court reasoned that Erika could have timely sought a protection order in
Nevada if she feared for her safety; but instead, she waited until after
Michael filed for divorce to apply for a restraining order in California.
The district court also noted that Erika did not inform Michael
beforehand that she was taking their children to San Diego, nor did she
obtain his permission to leave with the children. See Ogawa, 125 Nev. at

COURT OF APPEALS
OF
NEVADA
11
(0) 1947B
668-69, 221 P.3d at 704-05 (affirming the district court's decision that the
time from one parent's wrongful withholding of the children to the point
when the other parent filed an emergency motion for the children's return
was a temporary absence). The court further took into account Erika's
participation in therapy with Michael during the month of February, which
gave rise to an expectation that she and the children would return to
Nevada.
Next, the district court considered the duration of the children's
absence from Nevada and the timing of their departure. See Antonetti, 523
P.3d at 974. In this regard, the court specifically recognized that, up to the
point that Erika unilaterally removed the children, they had resided in
Nevada for just four days less than six consecutive months. Thus, the
timing of the children's removal further supported the district court's
conclusion that Erika's intent in leaving was to defeat home state
jurisdiction and not to escape domestic violence.4

4 Erika argues that the district court erred in referencing her
"unjustifiable conduct" in removing the children from Nevada without
notice or permission to find that Nevada was the children's home state
under NRS 125A.375(1). While the plain language of NRS 125A.375(1)
permits a court to decline jurisdiction in certain circumstances based on a
parent's unjustifiable conduct, this statute does not establish grounds for a
court to assert jurisdiction. To the extent the district court relied on this
statute as an independent basis to assert jurisdiction, this was error.
Nevertheless, because the totality of the circumstances supports the district
court's finding that Nevada was the children's home state as defined in NRS
125A.085(1), we conclude that any error by the district court in referencing
"unjustifiable conduct" was harmless. See Saavedra-Sandoval v. Wal-Mart
Stores, Inc., 126 Nev. 592, 599, 245 P.3d 1198, 1202 (2010) (noting this court
will affirm a district court's order if the right result is reached, albeit for the
wrong reason).
COURT OF APPEALS
OF
NEVADA
12
(0) 1947B
Finally, the district court evaluated the reasons why the
children came to and remained in Nevada, see In re Marriage of Richardson,
625 N.E.2d at 1124, crediting Michael's testimony that the children's
private school in Nevada was superior to the one they attended in San
Diego. The court acknowledged that until the end of February, the children
were still enrolled in their Nevada school, and it found that the children's
continued enrollment gave the expectation they would return to Nevada.
In this case, substantial evidence in the record supports the
district court's finding that Nevada was the children's home state,
notwithstanding the children's temporary absence from January 31 to
February 26. See Ogawa, 125 Nev. at 668, 221 P.3d at 704 (noting that
"testimony and other evidence in the record substantially supports the
district court's finding" that the children's absence was intended to be
temporary). Therefore, the children effectively resided in Nevada from
August 4, 2022, until February 26, 2023—a period of 206 days, or 6 months
and 22 days. Because the children resided here for more than six
consecutive months, Nevada was the children's home state on the day that
proceedings commenced, and Nevada has jurisdiction over the child custody
issues in this case.5 NRS 125A.305(1)(a).

5 Erika further argues that this case should be reassigned to a
different judge on remand. Judges are presumed to be impartial, and the
burden is on the party asserting bias to show otherwise. See Ybarra v. State,
127 Nev. 47, 51, 247 P.3d 269, 272 (2011); see also Roe v. Roe, 139 Nev., Adv.
Op. 21, 535 P.3d 274, 291 (Ct. App. 2023). We conclude that Erika failed to
establish that the judge was biased or that reassignment is necessary.
Insofar as Erika raised other issues not specifically addressed in this
opinion, we have considered the same and conclude that they either do not
present a basis for relief or need not be reached given the disposition of this
appeal.
COURT OF APPEALS
OF
NEVADA
13
(0) 1947R
CONCLUSION
District courts should consider all relevant information under
the totality of the circumstances when evaluating whether a child's absence
from a state is temporary for purposes of determining home state
jurisdiction under the UCCJEA. In this case, the district court considered
the parties' intent, the duration of the children's absence, and several other
pertinent factors to find that Erika's removal of the children from Nevada
did not defeat home state jurisdiction. This finding is supported by
substantial evidence in the record, and so we conclude that the district court
correctly assumed home state jurisdiction over the child custody issues.
Accordingly, we deny Erika's writ petition.

We concur:

, C.J.

J.
Bulla

COURT OF APPEALS
OF
NEVADA
14
(0) 1947B