SOLDO-ALLESIO v. FERGUSON

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

CHEYENNE SOLDO-ALLESIO, No. 87657-COA
Appellant,
vs.
KEVIN ALAN FERGUSON,
Respondent.
FEB 1 3 2'325
BETH A. EROWN
F SUPREME r

EP4 RK

Appeal from a child custody decree and post-jud ent order
denying a motion for relief pursuant to NRCP 52 and 59. Eighth Judicial
District Court, Family Division, Clark County; Regina M. McConnell,
Judge.
Reuersed and remanded.

Law Offices of F. Peter James, Esq., and F. Peter James, Las Vegas,
for Appellant.

Gastelum Law and Yadira Santana and Jennifer Setters, Las Vegas,
for Respondent.

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

OPINION

By the Court, BULLA, C.J.:
Domestic violence allegations must be carefully considered in
child custody proceedings. The Nevada Supreme Court has recognized the
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44very real threat" domestic violence poses to a child's safety and well-being

when determining custody between parents. Castle v. Simmons, 120 Nev.
98, 105. 86 P.3d 1042. 1047 (2004). Mindful of the harmful effects of
domestic violence on child safety and child development, the Nevada
Legislature established a rebuttable presumption against awarding
physical custody to a perpetrator of domestic violence and included domestic
violence as a best interest factor that must be considered when determining
child custody. See NRS 125C.0035(5) (rebuttable presumption); NRS
135C.0035(4)(f) (best interest factor). In this opinion, we clarify that there
are two separate evidentiary standards for the statutes at issue here: one
when using domestic violence to apply a rebuttable presumption and the
other when evaluating the role of domestic violence as a best interest factor.
While clear and convincing evidence is the standard when applying the
rebuttable presumption that can result in the denial of custody to a parent,
preponderance of the evidence is the standard when evaluating domestic
violence as a best interest factor in considering the custody arrangement
that is in the best interest of the child. In this case, the district court erred
in applying the clear-and-convincing-evidence standard to both statutes in
its analysis and, therefore, did not fully evaluate the allegations of dornestic

violence as a best interest factor in determining custody.
We also take this opportunity to stress that a district court
44must hear all information regarding domestic violence in order to

determine the child's best interests." Castle, 120 Nev. at 105, 86 P.3d at
1047. In this case, the district court excluded all of appellant's exhibits,
primarily for being untimely disclosed, despite rnany of the exhibits
containing information regarding allegations of domestic violence known to
both parties and despite the fact that certain exhibits had previously been

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disclosed in motion work during the discovery period. This exclusion was
not only in direct conflict with Castle, but it also acted as a discovery
sanction under the applicable rules governing sanctions. See NRCP
16.205(g); NRCP 37(c).1 As such, the district court was required to follow
these rules to determine if excluding the trial exhibits was an appropriate
sanction for the alleged failure to timely disclose them. The district court's
failure to follow those requirements here, especially in light of the nature of
some of the exhibits, is reversible error. Accordingly, we reverse the district
court's custody decree and remand this matter for further proceedings.2
FACTS AND PROCEDURAL HISTOR Y
Appellant Cheyenne Soldo-Allesio and respondent Kevin Alan
Ferguson were never married but have one minor child together, E.F., who
was approximately one year old when the underlying proceeding was
commenced. The couple had a tumultuous relationship, separating and
reconciling on multiple occasions, with their final separation occurring in
February 2022. Soldo-Allesio then obtained an ex parte temporary
protective order (TPO) against Ferguson in the Eighth Judicial District
Court, based on allegations of domestic violence, which summarily granted

'We recognize that local rule EDCR 5.506(b) governs admissibility of
documents at trial or an evidentiary proceeding, and EDCR 5.219 and
EDCR 7.60 permit sanctions for lack of compliance. However, both NRCP
16.205 and NRCP 37(c) govern the appropriateness of imposing sanctions
for the failure to timely disclose documents during discovery, and therefore,
we focus on these rules. Further, "district court rules must be consistent
with the Nevada Rules of Civil Procedure." Neu. Power v. Flour Ill., 108
Nev. 638, 643 n.4, 837 P.2d 1354, 1358 n.4 (1992).

2Appellant challenged both the original and the amended child
custody decree on appeal. As these decisions were essentially identical, we
refer to them both as "the decree of custody" or "the custody decree."

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her "temporary custody of the minor child." Thereafter, she and E.F. moved
to Florida. The hearing master extended the TPO for six months after
finding that domestic violence had either occurred or that there was a

credible threat of it.
Meanwhile, on February 5, 2022, Ferguson filed a complaint for
custody in the Eighth judicial District Court Family Division, seeking
primary physical custody of E.F. in Nevada. Two days later, Ferguson
moved for primary physical custody of E.F. with Soldo-Allesio having
parenting time.
In her answer and counterclaim, Soldo-Allesio sought primary
physical custody in Florida. On the same day, she filed and served an

opposition to Ferguson's motion and a countermotion for primary physical
custody, in which she asserted that Ferguson had a long history of domestic
violence and had committed several acts against her and one other woman.
Soldo-Allesio also filed appendices of exhibits to support her accusations

that included copies of the TPO and its extension, police reports, and photos
of herself showing bruises and cuts, amongst other exhibits. The preceding
items were all filed before the discovery deadline, such that the exhibits
were available to Ferguson during the discovery period.
The district court did not resolve the parties' competing motions
for primary physical custody but, instead, set the matter for trial and left
the existing temporary custody order in place. Three days before the trial,
Soldo-Allesio filed and served her list of trial exhibits on Ferguson. The list
set forth 21 items, labeled exhibits A through U, including seven items that
Soldo-Allesio had previously served in support of her countermotion for
custody.

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Certain exhibits Soldo-Allesio intended to proffer at trial
related directly to her domestic violence allegations. These exhibits
included screen-captured text messages and phone call logs, which,
according to Soldo-Allesio, demonstrated that Ferguson harassed her. She

also intended to introduce five police reports in which Ferguson reportedly
committed domestic violence against her and one other woman. Photos

depicting multiple cuts and bruises around Soldo-Allesio's left eye, right
arm, and right leg were also included on Soldo-Allesio's list of trial exhibits,
as she maintained that the depicted injuries were incurred during a June
2018 domestic violence incident in which Ferguson allegedly shoved her
head against a wall. She also intended to introduce copies of the February
2022 TPO and its extension as evidence of a January 2022 domestic violence
incident, where Ferguson had purportedly choked Soldo-Allesio and tried to

sexually assault and kill her in front of E.F. She had previously disclosed
four of the police reports, the photos, and the TPO and its extension in the
exhibits supporting her countermotion for custody.
When Soldo-Allesio attempted to introduce her proposed
exhibits into evidence at trial, Ferguson objected to their admission,
arguing that he had not seen the exhibits prior to trial and challenged the
authenticity of certain text messages and telephone logs.3 Regarding the

3 With respect to Ferguson's trial objection to the authenticity of
certain exhibits, the record before us lacks sufficient information to address
this issue because it is unclear whether the district court excluded exhibits
solely based on untimeliness or also based on authenticity concerns. Cf.
Rodriguez v. State, 128 Nev. 155, 162, 273 P.3d 845, 849 (2012) ("[W]hen
there [isj an objection to admissibility of a text message . . . the proponent
of the evidence must explain the purpose for which the text message is being
offered and provide sufficient direct or circumstantial corroborating

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police reports that Soldo-Allesio sought to introduce, the district court also

orally ruled that "police records are hearsay" and therefore did not "allow
the admission of the police reports."4 The district court ultimately excluded
Soldo-Allesio's trial exhibits, primarily on the grounds of untimeliness.
Therefore, the trial proceeded without Soldo-Allesio being able to introduce
any of her exhibits into evidence, including the exhibits related to the
alleged incidents of domestic violence.

Nevertheless, at trial, Soldo-Allesio testified about numerous
instances of domestic violence with Ferguson, three of which we focus on in
this opinion. The first occurred during a verbal altercation in a car, where
Ferguson allegedly ripped Soldo-Allesio's shirt and pushed her out of the
vehicle. The second occurred in June 2018 in Florida, where Ferguson
allegedly shoved her into a concrete wall. The third incident occurred in
January 2022 and led to the February 2022 TPO discussed above. When

evidence of authorship in order to authenticate the text message as a
condition precedent to its admission."). We note that under NRCP 16.205(i)
[ably objection to the authenticity or genuineness of documents must be
made in writing within 21 days of the date the receiving party receives
them"; otherwise, they are presurned authentic and genuine and may not
be excluded on those grounds.

'The Nevada Supreme Court has seemingly held that police reports
are admissible under the regularly conducted activity or "business records"
exception to the hearsay rule under NRS 51.135(1). Miranda v. State, 101
Nev. 562, 566, 707 P.2d 1121, 1124 (1985), overruled on other grounds in
Bejarano v. State, 122 Nev 1066, 146 P.3d 265 (2006). Nevertheless, the
business records exception does not, on its own, permit a party to introduce
the contents of out-of-court statements made to police by witnesses about
the events of the crime, which appears to be the purpose for which Soldo-
Allesio sought to introduce them as opposed to the mere fact that a police
report was made alleging domestic violence. Id.

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questioned by the court, Ferguson acknowledged the existence of the TPO,

but he could not explain why it was extended.
The district court subsequently entered a decree of custody
awarding the parties alternating physical custody of E.F. every three

months, such that the parties agree that they were essentially awarded
joint physical custody. See Bluestein v. Bluestein, 131 Nev. 106, 112, 345
P.3d 1044, 1048 (2015) (explaining that a custodial arrangement in which

each parent has physical custody of the child at least 40 percent of the time
generally constitutes joint physical custody). However, the custody decree
further provided that Ferguson "shall" have primary physical custody in
Nevada when E.F. starts school in August 2026.
In the custody decree, the district court expressly considered
the best interest factors set forth at NRS 125C.0035(4), finding that the

majority of the nonneutral factors favored Ferguson, including, notably: his
ability to provide E.F. with his own bedroom, obtain speech therapy for E.F.,
arrange daycare for E.F. when necessary, and overall meet E.F.'s needs. As
relevant to this appeal, the court found the factor concerning domestic
violence, NRS 125C.0035(4)(k), inapplicable because there was "no clear
and convincing evidence that domestic violence ha[d] occurred." In reaching

its decision, the court noted that Soldo-Allesio did not "follow through with
pressing charges" after the June 2018 incident and did not present evidence
to show that Ferguson was "charged or convicted of any . . . crime" following
the January 2022 incident. The district court also relied on Ferguson's
"credible" testimony that he was never convicted of any crimes involving
domestic violence.
Soldo-Allesio moved for relief from the custody decree under

NRCP 52 and NRCP 59, arguing that Ferguson had not explicitly denied

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the allegations of domestic violence and that the court applied the incorrect
evidentiary standard in analyzing domestic violence under the best interest
factors. Moreover, Soldo-Allesio argued that any technical violations
regarding service of her exhibit list and exhibits should not have resulted
in the exclusion of all her exhibits, emphasizing that during discovery she
served Ferguson with several of the trial exhibits as exhibits in support of
her countermotion for custody. Soldo-Allesio requested a new trial with the
reopening of discovery if the court did not amend its findings to support her
allegations of domestic violence and award her primary custody.
After a hearing, the district court denied Soldo-Allesio's motion,
concluding that Ferguson was credible at trial and that "there were items
that it did not find [Soldo-Allesio] very credible in as they related to the best
interest factors." The court also found there was not clear and convincing
evidence of domestic violence to establish the rebuttable presumption under
NRS 125C.0035(5) that sole or joint physical custody by the perpetrator of
dornestic violence would not be in the best interest of the child. Although
raised as an issue by Soldo-Allesio when seeking a new trial, the court did
not address whether it had applied the correct evidentiary standard when
analyzing domestic violence as a best interest factor under NRS

125C.0035(4)(k). Instead, the district court emphasized that it found "no
clear and convincing evidence of domestic violence" and that Soldo-Allesio
had failed to press criminal charges against Ferguson.
On appeal, Soldo-Allesio challenges the district court's custody
decree on several grounds. In this opinion, we primarily focus on two. First,
whether the district court erred in applying the clear-and-convincing-
evidence standard when evaluating domestic violence as a best interest
factor. Second, whether the district court abused its discretion in excluding

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all of Soldo-Allesio's trial exhibits. Because the district court applied the

incorrect evidentiary standard when evaluating domestic violence as a best
interest factor and failed to comply with NRCP 16.205(g) and NRCP 37(c)
when the court excluded Soldo-Allesio's trial exhibits as a sanction, we
reverse and remand.
ANAL YSIS
Standard of review
Preliminarily, this court reviews a child custody order for abuse
of discretion. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241 (2007);
Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 284 (Ct. App. 2023). When
rnaking its determination, the district court must focus solely on the child's
best interest. NRS 125C.0035(4); Ellis, 123 Nev. at 149, 161 P.3d at 242.
NRS 125C.0035(4) sets forth a nonexclusive list of factors the district court
shall consider when deciding the custody arrangement that is in a child's
best interest. Although this court presumes that the district court properly
exercised its discretion in deterrnining the best interest of the child,
Culbertson v. Culbertson, 91 Nev. 230, 233, 533 P.2d 768, 770 (1975),
"deference is not owed to legal error, or to findings so conclusory they may
mask legal error," Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142
(2015). But we will not set aside the district court's factual findings if they
are "supported by substantial evidence, which is evidence that a reasonable
person may accept as adequate to sustain a judgment." Roe, 139 Nev., Adv.
Op. 21, 535 P.3d at 284. As relevant here, Nevada has adopted a rebuttable
presurnption against awarding a parent physical custody—whether joint,
primary, or sole—where it has been established by clear and convincing

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evidence that the parent committed domestic violence.5 NRS 125C.003(1)

(setting forth the rebuttable presumption); NRS 125C.0035(5) (same); NRS
1250.230(1) (same); see also Roe, 139 Nev., Adv. Op. 21, 535 P.3d at 286-89
(discussing the order in which the district court should consider awarding

joint, primary, or sole physical custody and where the rebuttable
presumption fits within that analysis).
The district court applied an incorrect evidentiary standard when
evaluating the best interest factors
The first issue we consider is which evidentiary standard must
be met to prove domestic violence for a district court to consider it when

making its best interest determination. While NRS 1250.0035(4)(k)

5We have previously concluded, under NRS 125C.003(1), that "[j] oint
physical custody is the first alternative a court should consider when
deciding custody." Roe, 139 Nev., Adv. Op. 21, 535 P.3d at 286. "If such an
arrangement is not in the best interest of [the] child, the court may then
order primary physical custody." Id. (citing NRS 1250.003(1)). Among
other things, "[a]n award of joint physical custody is presumed not to be in
the best interest of the child if... . there has been a determination by the
court after an evidentiary hearing and finding by clear and convincing
evidence that a parent has engaged in one or more acts of domestic
violence." NRS 125C.003(1)(c). We take this opportunity to point out that
accompanying statutes in NRS Chapter 125C—specifically, NRS
125C.0035(5) and NRS 1250.230M—only explicitly establish a rebuttable
presumption against awarding the perpetrator of domestic violence "sole or
joint physical custody" but do not specifically address a rebuttable
presumption against primary custody. However, it logically follows from
these statutes that a person who commits domestic violence should not be
awarded primary physical custody if they are prohibited from receiving joint
custody, which represents a lesser degree of custody. An alternative
outcome would be absurd and would undermine the statutes' purpose to
protect the child's well-being. See Rarno.s u. State, 137 Nev. 721, 722, 499
P.3d 1178, 1180 (2021) ("We will look beyond the statute's language only if
that language . . . would lead to an absurd or unreasonable result.").

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requires the court to consider "[w]hether either parent . .. has engaged in
an act of domestic violence against . . . a parent of the child," it contains no
language specifying an applicable evidentiary standard. By contrast, the
statutory language regarding the domestic violence rebuttable presumption
clearly states that, to apply the presumption, the domestic violence must be
proven by clear and convincing evidence. See NRS 125C.0035(5) (requiring
a "finding by clear and convincing evidence that either parent ... has
engaged in one or more acts of domestic violence" for the presumption to
apply); NRS 125C.003(1)(c) (same); NRS 125C.230(1) (same). Soldo-Allesio
contends that the preponderance-of-the-evidence standard should apply
when the district court considers domestic violence as a best interest factor.
Ferguson, on the other hand, argues that the clear-and-convincing-evidence
standard should apply when considering domestic violence as either a best
interest factor or when applying the rebuttable presumption. We agree with
Soldo-Allesio.
Evaluating the child's best interest in determining custody is
designed to place the child's welfare and developmental needs at the
forefront of all child custody decisions, ensuring that the outcomes support
their physical, emotional, and psychological well-being. See Monahan v.
Hogan, 138 Nev. 58, 62, 507 P.3d 588, 592 (Ct. App. 2022) ("The 'best
interest of the child' standard is a polestar of judicial decision making in
family law matters."). Failure of the district court to properly consider any
best interest factor and make specific findings constitutes an abuse of
discretion. Lewis v. Lewis, 132 Nev. 453, 459-60, 373 P.3d 878, 882 (2016)
("In determining the best interest of the child, the court shall consider and
set forth its specific findings concerning [the best interest factors].").

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We emphasize that "preponderance of the evidence is still the

default evidentiary standard in family law absent clear legislative intent to
the contrary." Monahan, 138 Nev. at 69, 507 P.3d at 597 (internal quotation
marks omitted). Thus, without clear legislative intent otherwise, we must

conclude that the evidentiary standard that applies to the best interest
factors, including the domestic violence factor, is a preponderance of the
evidence. See id.; see also Mack v. Ashlock, 112 Nev. 1062, 1066, 921 P.2d

1258, 1261 (1996) (explaining that the preponderance-of-the-evidence
standard generally governs civil matters, including child custody
determinations). Ferguson points to no such clear legislative intent, and
none is apparent from the language of the statute. Cf. NRS 125C.0035(5)
(setting out a clear-and-convincing-evidence standard when courts consider
whether to apply the rebuttable presumption regarding domestic violence);
NRS 128.090(2) (requiring a petitioner to establish the facts by clear and
convincing evidence before parental rights can be terminated).
That the district court must apply a higher evidentiary
standard when considering whether to apply the rebuttable presumption
regarding domestic violence is inconsequential when considering domestic
violence as a best interest factor. See Franklin v. Franklin, No. 84334, 2024
WL 3085490, at *4 (Nev. June 20, 2024) (Order Affirming in Part, Reversing
in Part, and Remanding) (concluding that domestic violence was established
by a preponderance of the evidence when evaluating the domestic violence
best interest factor while also determining that the clear-and-convincing-
evidence standard for the rebuttable presumption was not met). Thus, even
if a party cannot prove domestic violence by clear and convincing evidence
for the district court to apply the rebuttable presumption, the court must
still consider whether domestic violence has been proven by a

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preponderance of the evidence in determining which custody arrangement
is in the child's best interest. See id.; see also Lewis, 132 Nev. at 459-60,
373 P.3d at 882.
In this case, although the district court addressed Soldo-
Allesio's allegations of domestic violence, it applied a clear-and-convincing
evidentiary standard as opposed to the preponderance-of-the-evidence

standard we have identified applies to the best interest factors. As such,
the court failed to properly consider the allegations of domestic violence in
its best interest analysis before making its custody award; this was legal
error. See Davi.s, 131 Nev. at 450, 352 P.3d at 1142. This error is
particularly concerning when it appears that substantial evidence may
support a finding that E.F. was present during the January 2022 incident
that resulted in the TPO being granted—especially in light of the

deleterious effects of domestic violence on children as we have previously
explained." See Roe, 139 Nev., Adv. Op. 2], 535 P.3d at 284 (defining
substantial evidence); see also Nance v. Ferraro, 134 Nev. 152, 159, 418 P.3d
679, 685 (Ct. App. 2018) (recognizing that, when district courts evaluate the
child's best interest to determine physical custody, limitations on the use of
evidence to establish domestic violence are generally inappropriate, as
domestic violence is a critical consideration in the best interest analysis).

"Although the district court attempted to address this deficiency in its
order denying post-judgment relief by stating that there was not clear and
convincing evidence to support the rebuttable presumption, nothing in that
order, the custody decree, or the transcripts from the relevant proceedings
indicates that the district court evaluated domestic violence as a best
interest factor under a preponderance-of-the-evidence standard.

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Therefore, the district court abused its discretion because it
failed to evaluate Soldo-Allesio's allegations of domestic violence in its best

interest analysis under the correct evidentiary standard—preponderance of
the evidence—before awarding custody. The failure to do so constitutes
reversible error because we cannot conclude that the result would have been
the same if the error had not occurred. See Davis, 131 Nev. at 450, 352 P.3d
at 1142; see also In re Guardianship of B.A.A.R., 136 Nev. 494, 500, 474
P.3d 838, 844 (Ct. App. 2020) ("[B]ecause it is not clear that the district
court would have reached the same conclusion . . . had it applied the correct
standard of proof, we must reverse the district court's decision and remand
for further proceedings."); Crosier v. Crosier, No. 87206-COA, 2024 WL

4660838, at *4 (Nev. Ct. App. Oct. 31, 2024) (Order of Reversal and Remand)
("Because the district court's errors in this case were not harmless, we
necessarily reverse the custody decree and post-decree order."); cf. NRCP 61
("At every stage of the proceeding, the court must disregard all error and

defects that do not affect any party's substantial rights.").
The district court committed reversible error in excluding all of Soldo-
Allesio's trial exhibits
Two other evidentiary issues warrant our attention. First, the
district court's orders implied that it viewed Soldo-Allesio's inability to
prove that Ferguson had been convicted of domestic violence as a bar to it
finding that domestic violence occurred for purposes of both the best interest
factor and the rebuttable presumption regarding dornestic violence. Second,
the district court excluded all of Soldo-Allesio's trial exhibits, including
those concerning domestic violence.

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The lack of a domestic violence conviction did not preclude a finding
of domestic violence in this civil matter
The custody decree stated that, because Ferguson credibly
testified that he had not been convicted of any domestic violence charges,
and because Soldo-Allesio failed to produce any contrary evidence, Soldo-

Allesio failed to meet her burden for the court to consider her allegations of
domestic violence under the best interest factors. And, in its post-judgment
order, it similarly concluded that Soldo-Allesio did not meet her burden of
proving that domestic violence occurred to warrant applying the rebuttable
presumption in NRS 125C.0035(5). A conviction, however, is not required
before the district court may find that a party has committed domestic
violence in a civil matter. Indeed, a criminal conviction requires proof
beyond a reasonable doubt and, as previously explained, NRS Chapter 125C
does not. NRS 175.191; see also Kuhn v. Danes, 821 A.2d 335, 338 (Del.
Farn. Ct. 2001) ("To fall within the definition of'domestic violence,' one need

not have been convicted of a criminal charge."); cf. Myers v. Haskins, 138
Nev. 553, 561-62, 513 P.3d 527, 535 (Ct. App. 2022) (concluding that a report
from Oregon Child Protective Services finding that claims against a parent
were unsubstantiated did not relieve the district court of its obligation to
independently deterrnine whether abuse or neglect occurred in a child
custody matter). Soldo-Allesio's burden of establishing domestic violence
for the purposes of the best interest factors as well as under the higher
standard required by the rebuttable presumption could have been satisfied
based on her testimony alone. Cf. Franklin, No. 84334, 2024 WL 3085490,
at *2 ("This court has observed that the burden of providing clear and
convince evidence can be satisfied by the victim's testimony alone."). The

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district court's error in this regard clearly affected its analysis of both the

domestic violence as a best interest factor and the rebuttable presumption.
The district court erred by excluding exhibits, including those
pertaining to domestic violence allegations, without a legal basis
We now address the district court's decision to exclude all Soldo-

Allesio's exhibits—effectively imposing a discovery sanction.7 In excluding
the exhibits, the district court expressed its concern that they were disclosed
long after the discovery period had closed and that Ferguson would not have

laad time to review them and raise any objections prior to trial, even though
certain exhibits had been provided in prior motion work.
We review a district court's decision to exclude evidence for an
abuse of discretion, M.C. Multi-Family Dev., L.L.C. v. Crestdale Assocs.,
Ltd., 124 Nev, 901, 913, 193 P.3d 536, 544 (2008), and will not disturb that
decision without a finding of palpable abuse, LVMPD v. Yeghiazarian, 129
Nev. 760, 764-65, 312 P.3d 503, 507 (2013). However, when a court excludes
trial exhibits as being untimely, the exclusion acts as a sanction.8 See, e.g.,

7As to Soldo-Allesio's trial exhibits, just before trial, Ferguson moved
and did not update his address with the district court. Soldo-Allesio, who
claimed to be unaware of his new address, sent her trial exhibits to his prior
address about one month before trial, but Ferguson did not receive them.
The district court questioned her testimony regarding when she knew about
the new address because the Sunday before trial she showed up at
Ferguson's new residence and texted him. Although the resolution of this
issue is unnecessary to our disposition, the district court may want to
consider it on remand when analyzing the appropriateness of any sanction
to be imposed.

8We note that, at oral argument, Soldo-Allesio's counsel stated his
impression that the district court did not intend to impose a sanction.
Nevertheless, we conclude that by excluding all of Soldo-Allesio's trial

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Lopez v. Lopez, 139 Nev., Adv. Op. 54, 541 P.M 117, 128-29 (Ct. App. 2023)
(holding that the district court's decision excluding a purported prenuptial
agreement not disclosed under NRCP 16.2 and as previously ordered by the
court acted as a permissible discovery sanction); cf. Pizarro-Ortega u.
Cervantes-Lopez, 133 Nev. 261, 265, 396 P.3d 783, 787 (2017) (clarifying
that NRCP 37(c)(1), which establishes discovery sanctions, provides the
appropriate analytical framework when a party fails to abide by NRCP
16.1's disclosure requirements). Before imposing sanctions for Soldo-
Allesio's failure to timely disclose her trial exhibits, the district court was
therefore required to apply the rules governing the imposition of sanctions.
Specifically, in custody actions between unmarried persons, the district
court must follow NRCP 16.205.
NRCP 16.205(d)(3)(E) requires a party to "provide a copy of
every other document or exhibit. including summaries of other evidence,
that a party expects to offer as evidence at trial in any manner." NRCP
16.205(0 requires a party to make "additional or amended disclosures
whenever new or different information is discovered or revealed." And

NRCP 16.205(g) mandates an award of sanctions for a party's failure to
make required disclosures, including the exclusion of evidence, unless the
violating party demonstrates "either good cause for the failure by a
preponderance of the evidence or that the violating party would experience

an undue hardship if the penalty were applied." We note that, within this
rule, the available sanctions, which include the exclusion of evidence, are
characterized as "discretionary" and "are encouraged for repeat or egregious

exhibits, the court effectively imposed a sanction for the reasons explained
herein.

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violations." NRCP 16.205(g)(2), (3). Further, in awarding sanctions under
NRCP 16.205(g), the district court must impose "an appropriate sanction."
And there must be other means to fully compensate the nonviolating party
should the court decline to award an appropriate sanction or penalty.

NRCP 16.205(g)(1).
Here, the record does not demonstrate that the district court
followed NRCP 16.205(g) when determining that Soldo-Allesio's delay in
disclosing trial exhibits warranted sanctions. Further, the district court
failed to consider if there was a good cause exception for her delay in
disclosing her trial exhibits, if she would experience an undue hardship if
the exhibits were excluded, if exclusion was an appropriate sanction, or if

an alternative penalty was available to compensate Ferguson for the delay
in producing trial exhibits.
Overarching the specific rules pertaining to sanctions in
custody matters is NRCP 37(c), which also governs the imposition of
sanctions for the failure to timely disclose evidence. NRCP 37(c)(1)(C)
provides in part as follows:
Failure to Disclose or Supplement. If a party
fails to provide information or identify a witness as
required by Rule 16.1(a)(1), 16.2(d) or (e), 16.205(d)
or (e), or 26(e), the party is not allowed to use that
information or witness to supply evidence on a
motion, at a hearing, or at trial, unless the failure
was substantially justified or harmless. In addition
to or instead of this sanction, the court, on motion
and after giving an opportunity to be heard:

(C) may impose other appropriate sanctions,
including any of the orders listed in Rule 37(b)(1).

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(Emphasis added.) Sanctions available under NRCP 37(b) include, as
relevant here, "prohibiting the disobedient party from ... introducing
designated matters into evidence." NRCP 37(b)(1)(B).
However, to comply with the rule and impose an "appropriate
sanction," the district court must engage in a thoughtful analysis as to
whether the violating party's failure to timely disclose was either justified
or harmless. Cf. Eby v. Johnston Law Office, P.C., 138 Nev. 660, 672, 518
P.3d 517, 528 (Ct. App. 2022) (reversing where the district court failed to
engage in the required analysis before ordering dismissal as an
44appropriate sanction" for noncompliance under the language of NRCP

12(e)). This analysis was particularly necessary here because Ferguson
knew of the TPO and its extension and had been served with some of Soldo-
Allesio's exhibits well before trial, such that any alleged delay in disclosing
these items as trial exhibits arguably would have been harmless. See
Sheehan & Sheehan u. Nelson Malley & Co., 121 Nev. 481, 492-93, 117 P.3d
219, 226-27 (2005) (concluding no palpable error occurred where the district
court admitted a document that an objecting party challenged as being "trial
by ambush" when that party had received the document during discovery);
see also Camp Bird Colo., Inc. v. Bd. of Cnty. Comm'rs, 215 P.3d 1277, 1292
(Colo. App. 2009) (determining that no prejudice resulted from the late
disclosure of trial exhibits that were produced to the other party at an
earlier stage in the litigation, and thus exclusion was not warranted); cf.
NRCP 61.
Given that the district court excluded all Soldo-Allesio's trial
exhibits without setting forth the legal basis for its decision, we cannot
determine whether the district court's sanction was appropriate. See In re
Guardianship of B.A.A.R., 136 Nev. at 500, 474 P.3d at 844. This is

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particularly troubling in a custody case involving allegations of domestic
violence where "all information" of such incidents must be considered)) See
Castle, 120 Nev. at 105, 83 P.3d at 1047. Furthermore, as Soldo-Allesio
argues, the district court's exclusion of all trial exhibits runs afoul of the
supreme court's edict that child custody decisions should be based on the
merits of the case rather than procedural technicalities. See Blanco v.
Blanco, 129 Nev. 723, 730, 311 P.3d 1170, 1174 (2013) (stating that child
custody issues "must be decided on their merits" when addressing a custody
case involving case-concluding sanctions).
In this case, Soldo-Allesio's request for primary physical
custody was centered on her domestic violence allegations, but the district

court barred her from presenting any documentary and photographic
evidence to support those allegations. Instead, Soldo-Allesio had to rely on
her own testimony, which the court found lacked credibility due in large
part to her failure to support her allegations of domestic violence by clear
and convincing evidence, her failure to press criminal charges against
Ferguson, and her failure to present evidence of a criminal conviction

c'As to the TPO, we note that district courts may take judicial notice
of another case when the closeness of the cases and particular
circumstances warrant such notice. Mack v. Est. of Mack, 125 Nev. 80, 91-
92, 206 P.3d 98, 106 (2009). Therefore, the district court likely could have
taken judicial notice of the TPO proceedings when determining custody, as
the cases were close, and the circumstances warranted it—namely the
requirement that the district court consider all evidence of domestic
violence when awarding custody. See Castle, 120 Nev. at 105, 83 P.3d at
1047; see also, e.g., Phillips v. Phillips, Nos. 82414 & 82693, 2022 WL
1302184, at *2 (Nev. Apr. 29, 2022) (Order of Affirmance) (concluding that,
in a child custody proceeding, the district court properly took judicial notice
of a TPO action concerning domestic violence).

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against him. Therefore, the district court's exclusion of Soldo-Allesio's trial
exhibits not only hindered Soldo-Allesio in proving her case at trial but also
adversely impacted the court's ability to hear the parties' custody dispute
on the merits by considering all relevant and otherwise admissible evidence
of domestic violence before determining the appropriate custody
arrangement for E.F. See id.
We are mindful that parties should timely disclose their trial
exhibits and not engage in gamesmanship. However, in this case, without
specific findings to support the sanction of exclusion based on the timing of
the disclosure of Soldo-Allesio's trial exhibits, and because of the serious
nature of domestic violence when considering custody, reversal is necessary.
Nance, 134 Nev. at 159, 418 P.3d at 685 ("[T]o the extent that so limiting
the evidence could prevent the district court from determining whether a
party engaged in domestic violence in the course of considering what
custody arrangement is in the child's best interest, such a result flies in the
face of Nevada law requiring the district court to presume that it is in the
child's best interest for an abuser not to have custody.").
The district court's credibility findings do not provide a basis for affirming
its decision
We acknowledge that the district court also determined there
were areas where it found Soldo-Allesio's credibility lacking. We do not
reweigh credibility determinations made by the trial court. Grosjean v.
Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009)
("[C]redibilty determinations and the weighing of evidence are left to the
trier of fact."). However, we cannot say that the district court would not
have weighed the credibility of the parties' testimony differently had it
applied the correct evidentiary standard for evaluating domestic violence as

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a best interest factor, and had it recognized that, while a criminal conviction
would have been important evidence, the lack of a conviction does not mean
that domestic violence has not been established for purposes of determining
custody. See In re Guardianship of B.A.A.R., 136 Nev. at 500, 474 P.3d at

844; see also Davis, 131 Nev. at 452, 353 P.3d at 1143 ("Without [specific
findings respecting the best interest factors], this court cannot say with any
assurance that the custody determination was made for appropriate legal

reasons."); Ellis, 123 Nev. at 149, 161 P.3d at 241-42 (providing that the
district court's custody determination must be made for appropriate legal
reasons). Thus, the district court's credibility findings do not provide a basis
for affirming its custody determination.
CONCLUSION
When evaluating domestic violence as a best interest factor
under NRS 125C.0035(4)(k), the district court must apply the
preponderance-of-the-evidence standard. Although we typically defer to the
district court's discretion in custody matters, this deference does not extend
to legal errors, including applying the incorrect and heightened clear-and-
convincing standard to the best interest factor of domestic violence. See
Davis, 131 Nev. at 450, 352 P.3d at 1142. As a result of this legal error, the
district court abused its discretion because it failed to make adequate
findings as to the domestic violence factor when considering the best
interest of the child in determining custody. We further hold that the

district court improperly excluded all Soldo-Allesio's trial exhibits, which
imposed a severe sanction under both NRCP 16.205(g) and NRCP 37(c)(1),
without first evaluating whether that sanction was appropriate and
justified under the rules. On remand, the district court rnust apply the
proper legal standards and rnake the necessary findings. In doing so, the

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district court should also consider authenticity concerns of certain
documents in light of NRCP 16.205(i), the admissibility of the TPO and its
extension, and whether certain statements in the police reports may be
admissible as nonhearsay, assuming the proper foundation for the police
reports has been established.1° See, e.g., NRS 51.035(2)(a) (allowing a
statement to be admissible if it is inconsistent with the declarant's
testimony at trial).
We therefore reverse the district court's custody decree and its
order denying post-judgment relief and rernand for further proceedings
consistent with this opinion.

Bulla

We concur:

Gibbons

1°We also note that at oral argument and in her opening brief, Soldo-
Allesio argued that Ferguson implicitly admitted to the allegations of
domestic violence by testifying that he had never committed domestic
violence against E.F., but also not denying the allegations as they related
to Soldo-Allesio. On remand, the district court will need to resolve this
ambiguity, and any other, when evaluating testimony concerning domestic
violence under the correct evidentiary standard.

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