BACKMAN v. GELBMAN

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

HOPE ANTOINETTE BACKMAN, No. 86396-COA
Appellant,
vs.
FILE
DANIEL MORRIS GELBMAN,
F13 1 3 ai25
Respondent.

Appeal from a district court order affirming a family court
master's findings and recommendations in a child support matter. Second
Judicial District Court, Family Division, Washoe County; Aimee Banales,
Judge.
Reversed and remanded.

Brownstein Hyatt Farber Schreck, LLP, and William D. Nobriga, Emily L.
Dyer, Emily A. Ellis, and Chelsee C. Jensen, Las Vegas, for Appellant.

Kemp Jones, LLP, and Katrina Stark and Nathanael R. Rulis, Las Vegas,
for Respondent.

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

OPINION

By the Court, GIBBONS, J.:
Upon a request for review, a district court may modify a child
support order only when it finds "a change in circumstances since the entry

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of the order and the modification is in the best interest of the child." Rivero

v. Rivero, 125 Nev. 410, 431, 216 P.3d 213, 228 (2009), overruled in part on
other grounds by Romano v. Romano, 138 Nev. 1, 6, 501 P.3d 980, 984
(2022). Although the modification of a child support order is discretionary

even if the district court finds changed circumstances, id. at 432, 216 P.3d
at 228, NRS 125B.145(4) mandates the district court conduct a review of
the child support order when the obligor parent experiences a 20-percent

change in gross monthly income. In this case, we are asked to determine
which child support order is the controlling order for purposes of calculating
a 20-percent change in income when an original order has been entered and
the amount of child support has remained unchanged over the course of
multiple denials of motions to modify the order.
We hold that, for the purposes of determining changed

circumstances under NRS 125B.145(4), the controlling order is the most
recent substantive order setting forth the child support obligation and
making findings regarding the respective incomes of the obligor and obligee
parents, not any subsequent orders denying motions to modify child
support. We also clarify that prima facie evidence is the standard to be
applied to determine whether sufficient evidence exists as to changed

circumstances to necessitate a substantive review of the motion to modify
child support. Here, the district court did not use the correct controlling
order when it affirmed the family court master's recommendation finding
no change of circumstances. In addition, the court failed to substantively

1We originally resolved this appeal in an unpublished order.
Appellant subsequently filed a motion to reissue the order as a published
opinion and to clarify the amount and type of evidence needed to satisfy the
changed circumstance rule. We grant the motion and replace our earlier
order with this opinion. See NRAP 36(e).
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review the child support order as required by NRS 125B.145(4) despite
appellant's prima facie evidence establishing a 20-percent change in
income. We therefore reverse the order denying the motion to modify child
support and remand the matter to the district court.

FACTS AND PROCEDURAL HISTORY
Appellant Hope Antoinette Backman and respondent Daniel
Morris Gelbman have litigated child support matters since not long after
the birth of their child in 2013. From 2014 to 2019, Gelbman paid Backman
between $731 and $858 per month in child support, depending on the
district court order in place at the time. Gelbman retired from firefighting
in 2019 at age 44 and began receiving benefits from the Public Employees'
Retirement System (PERS). Subsequently he moved to modify child
support based on a greater than 20-percent decrease in income pursuant to
NRS 125B.145(4). At the May 2020 hearing on Gelbman's motion, Gelbman
documented his reduced income, and Backman. provided the family court
master with the standard financial declaration required under WDCR
40(2), Venmo records pertaining to her self-employment as a house cleaner,
and screenshots of her bank account balance. The master determined that
these records were insufficient to determine Backman's income, imputed
income to Backman equal to that of Gelbman, and set child support at zero
as the parties shared joint physical custody.
The district court later denied Backrnan's objection to the
nlaster's findings and recommendations (MFR) and affirmed the MFR.

Backman moved several times over the next few years to modify the child
support order based on changed circumstances. In August 2020, Backman
filed a rnotion to modify in which she claimed that the restrictions caused

by the COVID-19 pandemic eliminated her employment, but she did not
provide documentation in support of that assertion. In May 2021, Backman
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again moved to modify based on a greater than 20-percent decrease in
income but did not request a hearing or provide any proof of a decrease in
income. Both of these motions were denied, and child support remained at

zero.
In September 2022, Backman filed another motion to modify,
this time alleging that Gelbman earned income from real estate rentals and
sales and a substitute teaching job in addition to his retirement benefits.
The master conducted a hearing concerning Backman's motion, and a
deputy district attorney from the Washoe County District Attorney's Office
family support division appeared at the hearing. Based on the financial
declarations filed by Backman and Gelbman, the deputy district attorney
opined that Gelbrnan should pay Backman $286 per month in child support.
The master, however, was skeptical of Backman's claims about Gelbrnan's
additional income streams as well as her claims about her own income.
Despite the deputy district attorney's calculations, and without making any
new income determinations, the master declined to modify the child support

award and left it at zero. Backman filed an objection to the MFR, but the
district court denied her objection in January 2023 and adopted the master's
recommendations as an order.
In February 2023, Backman again moved to modify child
support, this time asserting she was unemployed, on the verge of
homelessness, and desiring to relocate. In advance of the hearing on the
motion, Backman provided a financial statement, her 2022 income
information, a profit and loss statement for 2022 for her housecleaning
business, a text from her landlord stating that she was behind on rent, a
letter from her auto loan servicer showing her past due amount, and a list
of jobs to which she had applied. At the hearing on the motion, Backman

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testified as to her financial issues and reiterated her claims about
Gelbman's additional income from real estate rentals and sales. Backman
tried to inform the master that she had "lost [her] job" cleaning houses, but
the master interjected and stated that it was his turn to talk. The deputy
district attorney also attempted to explain how the documents Backman
provided demonstrated a greater than 20-percent decrease in income sinCe
the last hearing. However, the master again interjected, stated that there
was no change of circumstances, and concluded the hearing.
The master subsequently issued an MFR in which he
recommended denying the motion to modify. The MFR pointed out that
Backman's motion was filed "a mere two weeks" after the district court
order affirming the previous MFR; that Gelbman's rental income had been
discussed at the previous hearing; and that Backman's motion to relocate,
if granted, would result in a change of circumstances warranting review of
child support. The MFR, however, did not determine Backman's current
income and recommended that "the previous orders" setting child support

at zero "remain in effect."
Backirnan timely objected to the MFR, stating, "[o]nce the Court
Master was informed that there was a 20 percent change in Obligee's
income, pursuant to NRS 125B.145(4), he was required to move forward
with the review hearing. His failure to do so was an abuse of discretion."
The district court entered an order denying Backman's objection and
affirming the MFR, finding that the master did not abuse his discretion by
rejecting Backman's motion to modify the child support order. This appeal
followed.
Backman argues that the master abused his discretion in

imputing income to her equal to that of Gelbman at the May 2020 hearing,

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which resulted in an award of zero child support. She further argues that
the master compounded this error by leaving child support at zero over the
course of subsequent hearings despite evidence of changed circumstances

since May 2020. Backman finally argues that the master should have
conducted a substantive review of the child support order pursuant to NRS
125B.145(4) at the March 2023 hearing, as she had presented evidence of a
greater than 20-percent decrease in income at that hearing. Gelbman
argues that this court cannot review any possible errors made at the May
2020 hearing, or in the corresponding MFR and district court order, because
Backman did not identify that order in her notice of appeal, and such an
appeal frorn the 2020 order would have been untimely regardless. Gelbman

contends that, because the March 2023 MFR and corresponding district
court order is the only order identified in her notice of appeal, Backman bore

the burden of showing changed circumstances, particularly in the two
weeks between the January 2023 district court order affirming the
December 2022 MFR and her February 2023 motion to modify.2
ANALYSIS
Orders regarding child support are reviewed for abuse of
discretion. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543

2 Gelbman also devotes much of his answering brief to arguments that
the supreme court already rejected when denying his motion to dismiss this
appeal. For example, Gelbman argues that the March 2023 MFR and
corresponding district court order was not a "final judgment" under NRAP
3A(b)(1), that Backman was not an aggrieved party under NRAP 3A(a), and
that a March 2024 child custody order renders this appeal moot. Because
the supreme court specifically rejected these arguments, see Backman v.
Gelbrnan, Docket No. 86396 (Order Denying Motion, July 22, 2024), we
decline to address them here as those decisions are now the law of the case.
See Recontrust Co. v. Zhang, 130 Nev. 1, 7-8, 317 P.3d 814, 818 (2014).
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(1996). An abuse of discretion occurs when findings are not supported by

substantial evidence. Riven), 125 Nev. at 428, 216 P.3d at 226. "Although
this court reviews a district court's discretionary determinations
deferentially, 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) (internal citations omitted).
"[T]he district court only has authority to modify a child support
order upon finding that there has been a change in circumstances since the
entry of the order and the modification is in the best interest of the child."
Rivero, 125 Nev. at 431, 216 P.3d at 228. A 20-percent change in the gross
monthly income of a party subject to a child support order constitutes
changed circumstances requiring a review for modification of child support.
NRS 125B.145(4); see also Rivero, 125 Nev. at 432, 216 P.3d at 228 (stating

"a change of 20 percent or more in the obligor parent's gross monthly income
requires the court to review the support order").
Gelbman is correct that Backman did not identify the May 2020
MFR and the district court order affirming it in her notice of appeal and she
did not timely appeal that decision. See NRAP 4(a)(1) (stating timely

appeals are those filed within 30 days from when the written notice of entry
of order or judgment is served). Thus, we cannot review that order or
subsequent untimely appealed orders for abuse of discretion. See id.;
Collins v. Union Fed. Say. & Loan Ass'n, 97 Nev. 88, 89-90, 624 P.2d 496,
497 (1981) (stating that appellate courts will generally not consider any
order on appeal that is not included in a notice of appeal unless, among
other things, "the intention to appeal from a specific judgment may be
reasonably inferred from the text of the notice"). However, the supreme
court has held that when reviewing a motion to modify a child support

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order, we must determine if"there has been a change in circumstances since
the entry of the order."3 Rivero, 125 Nev. at 431, 216 P.3d at 228.
Here, the controlling order is the May 2020 order affirming the

master's first MFR because it was the last substantive order that made
findings concerning Backman's and Gelbman's incomes and the district
court never modified the order. cf. id. (explaining that parties to a child
custody case will not be granted a custody modification by the filing of
repetitive /notions but must rather show a substantial change in facts and
circumstances upon which the district court based the challenged custody
order); see also Myers v. Haskins, 138 Nev, 553, 563-64 & n.15, 513 P.3d
527, 536-37 & n.15 (Ct. App. 2022) (noting that repetitive, insubstantial
motions to modify child custody can be rejected without an evidentiary
hearing); Smith v. Rideout, 1 A.3d 441, 444-45 (Me. 2010) (explaining that

the controlling custody order for purposes of a motion to modify custody is
the most recent order significantly affecting parental rights, which may or
may not be the original order). While Backman did file multiple motions to
modify child support within a short time period, her February 2023 motion
did not seek to modify each previous denial of modification but rather
sought modification of the May 2020 order from which her circumstances,

i.e., her gross monthly income, had changed substantially.
The May 2020 order imputed income to Backman equal to
Gelbman. At the time, Gelbman was receiving a $6,033 gross benefit from

3Gelbrnan's answering brief misstates the supreme court's holding in
Rivero by adding the word "prior" in brackets between the words "the" and
(Corder." To the extent that this represents an argument that the controlling
order is the January 2023 district court order affirming the December 2022
MFR and not the May 2020 order affirming the May 2020 MFR, we reject
this argument for the reasons that follow.
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PERS each month and possibly an unspecified amount of income from
rental properties he owned and investment accounts. Thus, the master
imputed gross income to Backman to equal approximately $6,033 per
month. At the March 2023 hearing, Backman provided the master with the
financial declaration required by WDCR 40(2), her income information for
2022, and a profit-and-loss statement from 2022, along with other

documents related to rent and debts owed. This was enough evidence to
infer that Backman's income from cleaning houses had decreased by more
than 20 percent since the imputation of income in May 2020." Backman
also testified at the brief 2023 hearing that she was only making $600-$800
per month at the time.
While courts are not required to hold evidentiary hearings on
motions to modify child support based on mere allegations, the court is

required to conduct a substantive review of the child support order when
some credible evidence supports the request for relief. See generally NRS
125B.145(4) (stating a change of 20-percent or more in gross monthly

income shall be deemed changed circumstances requiring a review for
modification of child support); Rivera, 125 Nev. at 431, 216 P.3d at 228.
However, NRS 125B.1 45(4) and Nevada caselaw do not describe
the evidentiary standard that must be met to establish changed
circumstances constituting a 20-percent decrease in income. Other states

"Additionally, as Backman argues, she experienced a significant
reduction in income from cleaning houses between May 2020 and March
2023, as the COVID-19 public health emergency, which began in early 2020,
lasted until May 11, 2023. See Centers for Disease Control and Prevention,
End of the Federal COVID-19 Public Health Emergency (PHE) Declaration
(May 5, 2023), https://stacks.cdc.gov/view/cdc/127908.
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have applied the prima facie evidence standard to necessitate a hearing*
And our state has long used the prima facie evidence standard to determine
if a hearing is necessary to decide a motion to modify child custody. Rooney
v. Rooney, 109 Nev. 540, 542-43, 853 P.2d 123, 124-25 (1993); see also Myers,
138 Nev. at 556-57, 513 P.3d at 532 (describing prima facie evidence as the
threshold necessary to justify an evidentiary hearing when a party seeks to
modify child custody).

Specifically, prima facie evidence is that which demonstrates
"adequate cause" for a hearing, transcending mere allegations, which, if
proven, may permit inferences sufficient to establish bases for modifying an

order. Rooney, 109 Nev. at 542-43, 853 P.2d at 124-25. As noted above,
many other states use this test for child support matters, and we now clarify
that the same test applies to determine changed circumstances to justify a
review hearing under NRS 125B.145(4). We also note that, here, this was
not a three-year review where no judicial discretion is involved in setting a
child support review. See NRS 12511145W (stating a child support order
rnust be reviewed upon request of the Division of Welfare and Supportive
Services, the district attorney, or a parent or legal guardian if three years
have passed since the last order).
Backman's motion to modify requesting review of the child
support order was supported by documentation, testimony, and logical

5See, e.g., Schwier v. Schwier, 446 P.3d 354, 358 (Alaska 2019);
Johnson v. Johnson, 834 N.W.2d 812, 817 (Neb. Ct. App. 2013); Ritchey v.
Ritchey, 920 N.Y.S.2d 105, 106 (App. Div. 2011); Harris v. Harris, 107
S.W.3d 897, 902 (Ark. Ct. App. 2003); State ex rel. Boston v. Tuckness, 958
S.W.2d 325, 326 (Mo. Ct. App. 1998); Dorfman v. Dorfman, 719 A.2d 178,
180 (N.J. Super. Ct. App. Div. 1998); Smith v. Smith, 606 So. 2d 897, 899
(La. Ct. App. 1992); Horan v. Horan, 464 So. 2d 224, 227 (Fla. Dist. Ct. App.
1985).
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inference suggesting her income was not close to $6,000 per month. See

Metz v. Metz, 120 Nev. 786, 793, 101 P.3d 779, 784 (2004) (explaining that
gross monthly income includes income from any source, whether from
traditional employment or not, and whether the parent is self-employed or
not self-employed). She presented prima facie evidence of a reduction in
employment resulting in earnings of less than $1,000 per month, plus other

circumstances impacting her ability to work. Thus, under NRS
125B.145(4), changed circumstances were established.
Therefore, because the master was presented with prima facie
evidence of Backman's more than 20-percent decrease in income, he was
required to substantively determine whether modification of the support
order was warranted. Notably, while presentation of evidence of a greater
than 20-percent decrease in income requires a review of a child support
order, it does not require modification of a child support order. See Rivero,
125 Nev. at 432-33, 216 P.3d at 228-29. The required review for potential
modification entails considering the guidelines created by the
Administrator of the Division of Welfare and Supportive Services of the
Department of Health and Human Services. See id. at 433, 216 P.3d at 229;
see also NRS 125B.080(2).6 When considering the adjustment of a child
support order, the court or master must evaluate, among other things, "[t]he
relative income of both households"—not just the obligor's—and "Nile
obligor's ability to pay." NAC 425.150(1)(f), (h).

6When Rivero was decided, the statutory formula for setting and
modifying child support was found in NRS 125B.070 and NRS 125B.080.
Effective February 1, 2020, courts must now "apply the guidelines
established by the Administrator of the Division of Welfare and Supportive
Services of the Department of Health and Human Services pursuant to NRS
425.620" to establish and modify child support obligations. NRS 125B.080.
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The master summarily found that there had not been a change
of circumstances. He then ended the hearing and failed to conduct an
appropriate review of the support order after presentation of prima facie
evidence indicating Backman experienced a 20-percent-or-greater decrease
in income. Because NRS 125B.145(4) required the master to review the
child support order, the master abused his discretion by declining to conduct
the statutorily mandated review, determine the current income of both
parties, and apply the proper child support guidelines. In light of the
foregoing, we conclude that the district court abused its discretion in
affirming the family court rnaster's findings and. recommendations.'

CONCLUSION
We hold that for the purposes of calculating a 20-percent change
in income pursuant to NRS 125B.145(4), the controlling child support order

is the most recent substantive order setting the amount of the child support
and making a finding about the obligor and obligee parents' respective
incomes, regardless of any subsequent denials of motions to modify. The
family court master abused his discretion by not using the May 2020
controlling order when determining whether to conduct a substantive
review of Backman's motion to modify child support. Further, Backman
presented sufficient evidence to show a 20-percent-or-greater decrease in
gross monthly income since the entry of the May 2020 order at the hearing

7 Backman also argues that the master abused his discretion by failing
to provide specific findings supporting his decision to deviate from the child
support calculation formula found in NAC 425.140(1). Because the master
imputed income to Backman in 2020, there is no deviation from the formula
as both parties had equal income and they shared joint physical custody.
Therefore, there was no computation to be made—each parent's income
offsets the other. Thus, this argument provides no basis for relief.
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on her February 2023 motion, necessitating a full hearing. Thus, the
master abused his discretion by declining to review that order and make
findings as to whether Backman's evidence showing she sustained a 20-
percent decrease in gross monthly income justified a modification of the

child support order, and the district court erred when it affirmed the
master's recommendation concerning the same. We therefore reverse the
order of the district court and remand for proceedings consistent with this
opinion.

Gibbons

We concur:

, C.J.
Bulia

Westbroolc.

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