Mizrachi v. Mizrachi

132 Nev., Advance Opinion W49
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

ELIEZER MIZRACHI, No. 66176
Appellant,
vs.
DIANE MIZRACHI,
FILED
Respondent. SEP 1 5 2016
14711.. K. LINDEMAN
CLER F UPS - 4MEfit.tif
BY
CHIEF DEPUT CLERK

Appeal from a district court order granting a motion to clarify
the holiday parenting time provisions in the parties' divorce decree.
Eighth Judicial District Court, Family Court Division, Clark County;
Gerald W. Hardcastle, Senior Judge.'
Reversed and remanded.

Jacobson Law Office, Ltd., and Rachel M. Jacobson, Las Vegas,
for Appellant.

Diane Mizrachi, North Las Vegas,
in Pro Se.

BEFORE GIBBONS, C.J., TAO and SILVER, JJ.

'Although Judge Hardcastle signed the order, the Honorable Jack B.
Ames, Senior Judge, decided the motion at issue while sitting in
Department C.

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OPINION

By the Court, GIBBONS, C.J.:
In family law cases, parents are encouraged to work together
to reach agreements to allow them to maintain control over how they will
exercise custody of their children. See Bluestein v. Bluestein, 131 Nev. ,
, 345 P.3d 1044, 1047 (2015) ("Public policy encourages parents to enter
into private custody agreements for co-parenting."). And when they do,
the resulting agreements are generally enforceable, as long as "they are
not unconscionable, illegal, or in violation of public policy." Rivera v.
Rivera, 125 Nev. 410, 429, 216 P.3d 213, 227 (2009). But even when
parents come to an agreement, disputes may later arise as to what the
parties meant by a term in the agreement, or whether the agreement is
working as the parties intended. Thus, when the agreement is
incorporated into a judgment, order, or decree, there are mechanisms in
place for parents to return to court to resolve such disputes.
In this appeal, we discuss one such dispute and the proper
method for resolving that dispute. In particular, we consider whether a
motion filed in the district court was a motion to modify an agreement-
based decree, or rather, was a motion to clarify, interpret, or construe the
decree. And we conclude that, in the underlying action, the district court
clarified, rather than modified, the parties' divorce decree, as that court
defined the rights assigned to the parties by the decree. While it was
proper for the court to clarify the decree, our review of the record
demonstrates that the district court did not apply the proper procedure in
doing so, as the court failed to take evidence or otherwise consider the
intent of the parties in reaching the agreement that led to the decree.

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Thus, we reverse the district court's decision and remand this matter to
the district court for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
Based on the parties' unwritten, out-of-court stipulation, the
district court entered a divorce decree drafted by respondent Diane
Mizrachi's attorney. 2 As relevant to this appeal, the decree grants the
parties joint legal and physical custody and provides that appellant
Eliezer Mizrachi (Eli) "will have the minor child for the Jewish holidays
every year," and Diane "will have the minor child on the Christian
holidays every year." The decree does not identify specific days or times or
otherwise define what is meant by "the Jewish holidays" or "the Christian
holidays."
Less than ten months after the court entered the divorce
decree, Diane filed a motion to clarify the decree as to the holiday
parenting time schedule, asserting that disputes had arisen between the
parties with regard to Eli's holiday parenting time. 3 In particular, Diane
asserted that Eli was requesting parenting time with the child for the full
period of 12 Jewish holidays, 4 whereas she believed the divorce decree only

2 EDCR 5.09(2) states "all contested divorces which are settled by the
parties with all issues resolved. .. may be submitted without hearing by
agreement of the parties and with the approval of the court."

'Diane's motion and Eli's subsequent countermotion contained
additional requests for relief beyond what is discussed in this opinion.
Because the district court's resolution of these additional requests is not
challenged on appeal, the requests are not discussed further herein.

4 Specifically, Eli asserted that he was entitled to parenting time on
Rosh Hashanah, Yom Kippur, Sukkot, Shemini Atzeret, Simchat Torah,
Hanukkah, Tu B'Shevat, Purim, Passover, Lag B'Omer, Shavuot, and
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allowed him to have holiday parenting time on the first day of Hanukkah,
Passover, Rosh Hashanah, and Yom Kippur. In support of her position,
Diane alleged that, during their 13-year marriage, Eli rarely observed any
of the Jewish holidays. She also noted that, if the provision was
interpreted as Eli suggested, there would be potential conflicts with her
parenting time on the Christian holidays, as the days of the Jewish and
Christian holidays sometimes overlap.
In the motion, Diane asserted that each department of the
Family Division of the Eighth Judicial District Court used a default
schedule, which identified only Hanukkah, Passover, Rosh Hashanah, and
Yom Kippur as the relevant Jewish holidays for setting a custody
schedule. And she argued that the parties' divorce decree should be
interpreted consistently with the default schedule. 5 Eli opposed the
motion, contending that the decree's reference to "the Jewish holidays"
included all 12 of the holidays that he sought, which extended for the full
holiday time frame Moreover, Eli contended that Diane had agreed to
give him these holidays in exchange for him giving up certain other rights

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Tisha B'Av. In a post-decree letter that was attached to Diane's motion,
Eli indicated that he was willing to compromise to some extent on these
holidays. To that end, he stated that he wanted the full time period for
Yom Kippur (one day), Hanukkah (eight days), and Passover (eight days)
and at least the first night of four of the other holidays.

5Although the underlying case was assigned to Department C, Diane
attached the default schedule for Department D as an exhibit to her
motion. At a later hearing, her attorney represented that he spoke to
Department C's law clerk, who had informed him that Department C used
Department D's default schedule.

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in the divorce decree. Diane filed a reply, asserting that Eli gave up the
other rights for reasons unrelated to his holiday parenting time.
The district court subsequently held a hearing on the motion,
but did not hear testimony or take other evidence Instead, the district
court, relying solely on the parties' verified pleadings, arguments of
counsel, and its own independent Internet research, found that "there
[was not] a clear understanding between the two parties at the time [of
the agreement] and there needs to be a clarification on the Jewish
holidays." To that end, the court granted Diane's request to clarify the
meaning of the term "the Jewish holidays" as used in the divorce decree.
In so doing, the court adopted Department D's religious holiday default
schedule, concluding that Eli would have holiday parenting time only on
the first day of Hanukkah, Passover, Rosh Hashanah, and Yom Kippur.
This appeal followed.
ANALYSIS
Parties in family law matters are free to contract regarding
child custody and such agreements are generally "enforceable if they are
not unconscionable, illegal, or in violation of public policy." Rivero, 125
Nev. at 429, 216 P.3d at 227. Indeed, even beyond the idea that parents
are free to enter into such agreements, the Nevada Supreme Court has
gone further and explained that public policy favors parenting
agreements. 6 See Bluestein, 131 Nev. at , 345 P.3d at 1047; see also St.

6 The Nevada Revised Statutes and local court rules for several of the
judicial districts in Nevada also contemplate such agreements, further
demonstrating their desirability. See NRS 125C.0653(1) ("The parents
may modify an agreement regarding custodial responsibility. . . by
mutual consent"); see also NRS 123.080(1) (providing that parents can
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Mary v. Damon, 129 Nev. , , 309 P.3d 1027, 1035-36 (2013)
(recognizing a presumption "that fit parents act in the best interest of
their children" and that public policy favors those parents entering into
custody agreements). Thus, parents are encouraged to reach such
agreements, and the court "will generally recognize the preclusive effect of
such agreements if they are deemed final." See Rennels v. Rennels, 127
Nev. 564, 569, 257 P.3d 396, 399 (2011). Moreover, when parties enter
into a parenting agreement, the terms of that agreement will control
unless and until a party moves to modify those terms. 7 Rivera, 125 Nev. at
429, 216 P.3d at 226; see also Harrison v. Harrison, 132 Nev. „ 376
P.3d 173, (2016) (explaining that the appellate court will not rewrite a
contract to include terms not agreed to by the parties).
While we reiterate that parenting agreements are valuable
and enforceable, see Rivero, 125 Nev. at 429, 216 P.3d at 227, we also
recognize that, despite the parties' best efforts in reaching such
agreements, disputes will sometimes arise once the parties begin putting
their agreed-upon terms into practice. Such is the situation here, where

...continued
contract with each other "for the support. . . of their children" during a
legal separation); NRS 123.080(4) (providing for ratification and adoption
of contracts between spouses into decrees of divorce); NRS 125C.005(1)
("The court may. . . require the parents to submit to the court a plan for
carrying out the court's order concerning custody."); see also FJDCR
25(1)(A); WDFCR 53(1)(a); 4JDCR 5(4); EDCR 5.70(a); NJDCR 26(a)(1).

7 VVhen a motion to modify is filed, "the court must use the terms and
definitions provided under Nevada law" to resolve the motion, and at that
time, "the parties' definitions no longer control." Rivero, 125 Nev. at 429,
216 P.3d at 227.

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the parties discovered, after having agreed that Eli would have parenting
time on the Jewish holidays, that they disagreed as to what that term
actually meant.
That disagreement has led to this appeal, in which Eli argues
that the district court erred by finding the holiday provision to be
ambiguous when the term could only be reasonably interpreted to mean
the 12 Jewish holidays for their full time span. He also contends that, to
the extent there was any ambiguity, the district court improperly failed to
consider the intent of the parties and to construe such ambiguity against
Diane, whose attorney drafted the decree. Finally, although Eli asserts
that the motion was presented and decided only as a motion for
clarification, he also argues that, by interpreting the term in the manner
that it did, the district court essentially modified the divorce decree
without considering whether the modification was in the child's best
interest. 8 Diane agrees that the term was unambiguous, but argues that

8 Eli also asserts that the district court failed to consider whether
there had been a change in circumstances. A change in circumstances
must be shown when modifying a primary physical custody arrangement,
but is not necessary to support a modification of a joint physical custody
arrangement. See River°, 125 Nev. at 430, 216 P.3d at 227 (explaining
that a joint physical custody arrangement may be modified whenever
modification "is in the child's best interest," but that a primary physical
custody arrangement may only be modified "when there is a substantial
change in the circumstances affecting the child and the modification
serves the child's best interest"). Because the parties in this case share
joint physical custody, even if the court did modify the custody
arrangement as Eli contends, no change in circumstances was necessary
to support that modification; the court would have needed to find only that
the modification was in the child's best interest. See id.

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the district court properly clarified the meaning of the term to include only
the first day of the four specified holidays.
As a preliminary matter, Eli's argument regarding effective
modification raises the question of whether the district court actually
modified or only clarified the holiday parenting time provision in the
divorce decree. Thus, we begin our analysis by briefly addressing that
question before turning to the merits of the court's conclusion as to the
meaning of the term, "the Jewish holidays."
Clarification versus modification
The Nevada Supreme Court has long distinguished between
an order modifying a judgment or decree and an order construing or
clarifying a judgment or decree. See Murphy v. Murphy, 64 Nev. 440, 445,
183 P.2d 632, 634 (1947) (concluding that the district court's order
defining the effect of a divorce decree but not changing that decree
construed, rather than modified, the decree) This distinction is important
in many cases because modification of a judgment may not be permitted,
absent special circumstances, once the judgment has become final and the
time for seeking relief from the judgment has passed. See NRCP 60(b)
(generally limiting the time for filing certain motions for relief from a
judgment to six months); Kramer v. Kramer, 96 Nev. 759, 762-63, 616 P.2d
395, 397-98 (1980) (concluding that a district court lacked jurisdiction to
modify a divorce decree's property distribution provisions more than six
months after the decree was entered).
Of course, custody cases are somewhat different because, on a
proper showing, a custody decision may be modified at any time. See NRS
125C.0045(1)(b) (providing that the court may modify its custody order at
any time). Nevertheless, the distinction between modification and
clarification is still important in custody cases because certain specific
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standards must be met in order for a court to properly modify a custody
order. See, e.g., River°, 125 Nev. at 430, 216 P.3d at 227 (explaining that,
to modify a joint physical custody arrangement, the court must find that
modification "is in the child's best interest[,]" and to modify a primary
physical custody arrangement, the court must find "a substantial change
in the circumstances affecting the child and [that] modification serves the
child's best interest"); see also Bluestein, 131 Nev. at , 345 P.3d at 1048-
49 (discussing modification of an agreement providing for joint physical
custody); Ellis v. Carucci, 123 Nev. 145, 149-53, 161 P.3d 239, 242-44
(2007) (discussing modification of primary physical custody
arrangements).
This distinction is also important because, on the clarification
side, the district court only "has inherent power to construe its judgments
and decrees for the purpose of removing any ambiguity." Kishner v.
Kishner, 93 Nev. 220, 225-26, 562 P.2d 493, 496 (1977) (vacating an order
clarifying a judgment and decree because the judgment and decree was
not ambiguous, and thus, no clarification was warranted). Thus, we must
determine whether the court modified or clarified the decree in order to
consider whether the proper standards were applied.
To that end, the Nevada Supreme Court has held that a
modification "alters the parties' substantive rights, while a clarification
involves the district court defining the rights that have already been
awarded to the parties" and leaves their substantive rights unchanged.
Vaile v. Porsboll, 128 Nev. 27, 33, 268 P.3d 1272, 1276 (2012). Here, the
divorce decree assigned Eli the substantive right to exercise parenting
time on the Jewish holidays, and the district court did not purport to alter
that right in any way. Instead, the court merely sought to define which

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days were included within the meaning of the provision. Thus, we
conclude that the court was only clarifying the term, which it had
authority to do, so long as the term was ambiguous. See Kishner, 93 Nev.
at 225, 562 P.2d at 496.
Ambiguity
Our supreme court has held that a provision "is ambiguous if
it is capable of more than one reasonable interpretation." See In re
Candelaria, 126 Nev. 408, 411, 245 P.3d 518, 520 (2010) (discussing
ambiguity of statutory language); see also Galardi v. Naples Polaris, LLC,
129 Nev. 306, 309, 301 P.3d 364, 366 (2013) (providing that "[a] contract is
ambiguous if its terms may reasonably be interpreted in more than one
way"). In this case, both parties assert that the term, "the Jewish
holidays," was unambiguous, but they each ascribe a different meaning to
that term. It follows that, if both meanings put forth by the parties are
reasonable, then the term would necessarily be ambiguous. See
Candelaria, 126 Nev. at 411, 245 P.3d at 520; see also Galardi, 129 Nev. at
309, 301 P.3d at 366.
Eli asserts that "the Jewish holidays" means the full span of
12 specified holidays. As there were no restrictions placed on the term,
"the Jewish holidays," in the divorce decree, it is at least arguably
reasonable to interpret the term as including the full length of all of the
Jewish holidays sought by Eli. See Jessica H. Ressler, Adjudicating
Custody and Visitation Matters Involving Jewish Families: What You
Didn't Know!, 40 Westchester B.J. 43, 51-57 (2015) (identifying a number
of Jewish holidays that may be relevant to custody determinations,
including the 12 holidays sought by Eli). On the other hand, insofar as
Diane's interpretation is consistent with the default schedule used by at
least two departments of the Family Division, it seems that her
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interpretation may also be a reasonable one. Indeed, because not all
Jewish followers observe all of the Jewish holidays, it could also be
reasonable to interpret the term as some other combination made up of
more than the four holidays identified by Diane, but less than all of the
Jewish holidays. See id. at 49, 57-58 (explaining that an attorney
representing a Jewish client in a custody matter should ask the client
which holidays are celebrated "because every family is different," and
noting that the holidays that will need to be considered for a holiday
parenting schedule "will vary on a case-by-case basis"). As there are at
least two, and likely many more, reasonable interpretations of the term
"the Jewish holidays," the district court properly found that the term was
ambiguous. As a result, it was appropriate for the district court to
construe that term. See Kishner, 93 Nev. at 225, 562 P.2d at 496.
Clarification of the term "the Jewish holidays," as used in the decree
Having determined that it was proper for the court to construe
the term, we now turn to the procedure the court applied in doing so.
After determining that the provision needed to be clarified, the district
court simply adopted the default schedule offered by Diane without
considering what the parties actually intended when they agreed that Eli
would have parenting time on the Jewish holidays. But the parties'
arguments largely suggest that the court should have applied contract
interpretation principles to determine the intention of the parties in
reaching the agreement that ultimately yielded the underlying divorce
decree.
In considering agreement-based decrees, the Nevada Supreme
Court has indicated in some cases that, once an agreement is merged into
a decree, a court's application of contract principles, such as rescission,

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reformation, and partial performance, is improper to resolve a dispute
arising out of the decree. 9 See Vaile, 128 Nev. at 33 11.7, 268 P.3d at 1276
11.7. Nevertheless, other cases have treated agreement-based decrees as
contracts and directly applied contract interpretation principles without
addressing the propriety of doing so. See, e.g., Shelton v. Shelton, 119 Nev.
492, 78 P.3d 507 (2003). Thus, the extent to which contract principles may
apply to interpret an agreement-based decree is somewhat unclear under
current Nevada law. In this regard, two cases are instructive.
In Aseltine v. Second Judicial District Court, 57 Nev. 269, 271-
72, 62 P.2d 701, 701-02 (1936), the parties agreed to reduce the husband's
alimony obligation should his income be reduced, and that agreement was
merged into the divorce decree. Subsequently, the husband sought a
reduction in alimony based on the provision, but the district court denied
that request, finding that it would be an impermissible modification of the
decree. Id. at 272, 62 P.2d at 702.
In reviewing the district court's decision, the Nevada Supreme
Court explained that it needed to interpret the decree in order to
determine whether the decree permitted the change to the alimony. 10 Id.

9 Generally, when the district court approves and adopts the parties'
agreement into the decree of divorce, the agreement merges into the
decree unless both the decree and the agreement contain a clear and direct
expression that the agreement will survive the decree. Day v. Day, 80
Nev. 386, 389-90, 395 P.2d 321, 322-23 (1964). And when an agreement is
merged into a decree of divorce, it loses its character as an independent
agreement and the parties' rights "rest solely upon the decree." Id. at 389,
395 P.2d at 322. Merger is not an issue in this case.

wAt times, the Aseltine court spoke of modifying the provision in the
divorce decree, but because the court merely construed the decree and
modified the alimony based on that construction, it was not accurate to
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And in order to interpret the decree, the Aseltine court examined the
district court's intent, noting that, when there was ambiguity in a decree,
the reviewing court could look to the record as a whole and the
surrounding circumstances to determine the district court's intent. Id. at
273, 62 P.2d at 702. Moreover, the Aseltine court came to the conclusion
that, in entering the decree, it must have been "the intention of the
[district] court, . . that the agreement of the parties should be given effect
according to its intent and spirit." Id. at 274, 62 P.2d at 702. The
supreme court determined that the parties had intended to permit the
subsequent change to the alimony. Id. at 274,62 P.2d at 702-03. Thus,
the supreme court held that the district court's denial of the husband's
request for a reduction in alimony based on that provision was improper.
Id.
Similarly, in Murphy, the parties agreed to alimony terms and
their agreement was merged into their divorce decree. 64 Nev. at 442, 183
P.2d at 633. In particular, the agreement provided for a reduced alimony
obligation if the husband's military rank reverted from Brigadier General
to Lieutenant Colonel. Id. at 443, 451-52, 183 P.2d at 633, 637-38.
Several years later, the husband's rank reverted to Lieutenant Colonel for
one day, after which he was promoted to Colonel, the rank between
Brigadier General and Lieutenant Colonel. Id. Thereafter, the husband
apparently asserted that his alimony should be reduced under the divorce

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say that the decree itself was modified See Aseltine, 57 Nev. at 272-74, 62
P.2d at 702-03; see also Murphy, 64 Nev. at 449-50, 183 P.2d at 636-37
(recognizing that the underlying motion in Aseltine did not actually seek a
modification of the decree).

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decree, and the wife moved the district court to construe the alimony
provision as providing that the one-day reversion to Lieutenant Colonel,
followed by the promotion to Colonel, was not the type of reversion
contemplated by the divorce decree. Id. at 443, 183 P.2d at 633. The
district court granted the motion for clarification and held that this one-
day reversion did not trigger the reduced alimony obligation. Id. at 443-
44, 183 P.2d at 634.
On appeal, the Murphy court held that the district court had
properly applied certain interpretation principles to construe the terms of
the decree, including the principles that agreements and their resulting
decrees "should be construed fairly and reasonably, and not too strictly or
technically." Id. at 452-53, 183 P.2d at 638. Further, like the Aseltine
court, the Murphy court also noted that an agreement underlying a decree
should be construed as meaning what it could be reasonably inferred that
the parties intended it to mean. Id. at 453, 183 P.2d at 638.
Thus, Murphy and Aseltine demonstrate that, as in contract
interpretation cases, see Galardi, 129 Nev. at 310, 301 P.3d at 367
("Contract interpretation strives to discern and give effect to the parties'
intended meaning."), a court that is called upon to clarify the meaning of a
disputed term in an agreement-based decree must consider the intent of
the parties in entering into the agreement." See Murphy, 64 Nev. at 453,

"Of course, where, as here, the matter concerns child custody, a
court must also be mindful of whether the impact of the agreement is in
the child's best interest because, "filn Nevada, as in other states, the best
interest of the child is the paramount concern in determining the custody
and care of children." St. Mary, 129 Nev. at , 309 P.3d at 1033; see
NRS 125C.0035(1) ("In any action for determining physical custody of a
minor child, the sole consideration of the court is the best interest of the
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183 P.2d at 638; Aseltine, 57 Nev. at 274, 62 P.2d at 702; see also Harrison,
132 Nev. at , P.3d at (refusing to construe a provision in a
stipulated parenting agreement in a manner that would restrict the
meaning of the provision because to do so would "risk trampling the
parties' intent" as demonstrated by the language of the written
agreement). And in doing so, the court may look to the record as a whole
and the surrounding circumstances to interpret the parties' intent. See
Aseltine, 57 Nev. at 273, 62 P.2d at 702.
In this case, the district court adopted the default schedule,
but there is no indication in the record that the parties intended for the
default schedule to apply when they entered into their agreement. In
particular, nothing in the divorce decree referenced the default schedule,
and neither party asserted that they had even been aware of the default

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child."); Harrison, 132 Nev. at P.3d at (noting that the
"paramount public policy concern in child custody matters" is "the best
interest of the child"). Indeed, as far back as 1927, the Nevada Supreme
Court has recognized that a district court could go so far as to reject an
agreement reached by parents if the court determined that the agreement
was not in the child's best interest. See Atkins v. Atkins, 50 Nev. 333, 338-
39, 259 P. 288, 289-90 (1927) (affirming the district court's rejection of the
parties' agreement to waive child support where the court concluded that
the agreement was not for the good of the child), superseded by statute on
other grounds as stated in Lewis v. Hicks, 108 Nev. 1107, 1111-12, 843
P.2d 828, 831 (1992). Nevertheless, the court's involvement with a
parenting agreement should be exercised cautiously in light of the
presumption that fit parents act in their children's best interests, St.
Mary, 129 Nev. at , 309 P.3d at 1035, and the principle that the state
generally may only limit parental authority when severe concerns, such as
protecting a fundamental right or the safety of the parties' child, are at
stake. Harrison, 132 Nev. at , 376 P.3d at .

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schedule when they came to the agreement that led to the decree, much
less that they had meant for that schedule to apply to their arrangement.
Instead, in seeking clarification of the decree, the parties each
made allegations suggesting that they had a particular intent when they
reached the agreement regarding the Jewish holidays. In particular, Eli's
arguments suggested that Diane was aware of all of the Jewish holidays
and agreed to give him parenting time on those days because he gave up
certain other rights. Diane, on the other hand, disputed Eli's explanation
as to why he gave up certain other rights and contended that she was
unaware of many of the holidays now sought by Eli because he did not
celebrate those holidays during their marriage. These assertions on both
sides present factual questions that should have been considered by the
district court to address the parties' intentions in giving Eli parenting
time on the Jewish holidays.
Despite these factual issues, the district court did not hold an
evidentiary hearing or take any evidence to determine the intent of the
parties when they formed the agreement. Indeed, nothing in the record
before us indicates that the court even attempted to discern the intent of
the parties at all. Instead, the court made its decision based upon
contradictory sworn pleadings, arguments of counse1, 12 and its own
independent Internet research. In light of the foregoing discussion, we
conclude the district court should have held an evidentiary hearing to
determine the parties' intent at the time they agreed to share parenting

We note that arguments of counsel are not evidence. See Nev.
12

Ass'n Servs., Inc. v. Eighth Judicial Dist. Court, 130 Nev. , 338
P.3d 1250, 1255 (2014).

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time based upon the term "the Jewish holidays." 13 See Nev. Power Co. v.
Fluor Iii., 108 Nev. 638, 646, 837 P.2d 1354, 1360 (1992) (concluding that
an evidentiary hearing may be necessary in order to determine disputed
questions of fact); see also EDCR 2.21(a) (stating that an evidentiary
hearing may be held to resolve disputed factual contentions raised in
affidavits and declarations that support motions); EDCR 5.25(b) (stating
that factual contentions in family law matters must be presented to the
court pursuant to EDCR 2.21). And because the district court failed to
resolve the underlying factual issues or ascertain the parties' intent as to
what was encompassed by "the Jewish holidays," we conclude that the
court erred by interpreting the holiday provision in the decree to include
only the first day of the four designated Jewish holidays. See Shelton, 119
Nev. at 497, 78 P.3d at 510 (providing that the interpretation of an
agreement-based divorce decree presents a question of law); Evans v. Dean
Witter Reynolds, Inc., 116 Nev. 598, 606, 5 P.3d 1043, 1048 (2000)

13 E1i argues that, if the agreement is ambiguous, it should be
construed against Diane because her attorney drafted the divorce decree.
See Anvui, LLC v. G.L. Dragon, LLC, 123 Nev. 212, 215-16,163 P.3d 405,
407 (2007) (providing that ambiguities in a contract are generally
construed against the drafter). It is not clear from the authority we have
considered whether it would be appropriate to apply that particular
principle of contract interpretation to a case involving the interpretation of
a custody decree. Nevertheless, once the district court takes evidence as
to the underlying facts and the parties' intent, it may be able to resolve
the ambiguity without resorting to construing it against Diane based on
her attorney drafting the divorce decree. Thus, we do not reach Eli's
argument that the agreement should be construed against Diane on that
basis.

COURT OF APPEALS
OF
NEVADA
17
(0) 19410 e
(providing that appellate courts conduct de novo review of questions of
law).
CONCLUSION
As used in the parties' parenting agreement, the term, "the
Jewish holidays," is ambiguous. The record, however, does not contain
sufficient evidence to discern the parties' intent at the time of their
agreement because the district court did not hold an evidentiary hearing
to resolve the disputed factual issues. Therefore, we reverse the district
court's decision construing the provision and remand this matter to the
district court for further proceedings consistent with this opinion.

, C.J.
Gibbons

We concur:

it
Tao

Silver

COURT OF APPEALS
OF
NEVADA
18
(0) 19475