HAMMER VS. RASMUSSEN (FAMILY)

Statutes cited

Key holdings

• -Under NRS 126.021(3), as amended in 2021, a court is not precluded from determining that a child has a legal parent-child relationship with more than two persons, and the district court committed no legal error in finding L.H. had three legal parents.
• -In a paternity action under NRS Chapter 126, appellate courts review the district court's determinations under the law in effect at the time of its determination (St. Mary v. Damon).
• -A biological parent's conclusive presumption of parentage does not mandate dismissal of another person's parentage claim in light of NRS 126.021(3).
• -Failure to comply with NRAP 44's written-notice requirement is an independent basis to summarily reject a constitutional challenge to a statute (In re Candelaria).
• -A court does not retroactively modify a child support obligation by using the date the motion to modify was filed as the modification's effective date (Ramacciotti v. Ramacciotti).
• -Although NAC 425.140 provides the framework for calculating a base child support obligation, a district court abuses its discretion when it fails to consider another parent's ongoing support obligation in setting an obligor's support where doing so results in the custodial parent receiving approximately double the statutory amount.

Practitioner summary

The Court of Appeals addressed two principal issues: (1) whether Nevada law permits a child to have three legal parents, and (2) the propriety of the district court's child support order.

As a threshold matter, the court narrowed its jurisdiction, holding it could review only the May 1, 2024, order adjudicating parentage, entering permanent custody, and awarding child support, and the July 10, 2024, order denying the motion to alter or amend. It deemed the remaining challenged orders beyond its jurisdiction under the law of the case doctrine (Hsu v. County of Clark), the record-on-appeal timing rule (Arnold v. Kip), the requirement that contempt proceedings be challenged by writ (Pengilly v. Rancho Santa Fe Homeowners Ass'n), and the untimeliness of certain notices (Healy v. Volkswagenwerk). The court found challenges to the July 10, 2024, order forfeited for lack of argument (Palmieri v. Clark County).

On parentage, the court reviewed factual findings for clear error and substantial evidence (Rosie M. v. Ignacio A.) and questions of law, including statutory interpretation, de novo (Waldman v. Maini). Addressing which version of NRS Chapter 126 governed, the court applied the law in effect when the district court rendered its determination resolving the remand order, citing St. Mary v. Damon, and thus rejected appellants' argument that the 2012 version applied. The court resolved the central question under NRS 126.021(3), which was amended in 2021 to provide that the subsection "does not preclude a determination by a court that a child has such a legal relationship with more than two persons." Relying on the enacting legislation (2021 Nev. Stat., ch. 512, at 3408), the court held the district court committed no legal error in finding L.H. had three legal parents and amending the birth certificate to list Rasmussen, Hammer, and Milan.

The court distinguished Rosie M. v. Ignacio A., noting the supreme court there expressly declined to address the 2021 amended version of NRS 126.021(3) because the amendment postdated the district court's decision in that case. While acknowledging that Milan's biological connection creates a conclusive presumption of parentage, the court held this did not mandate dismissal of Rasmussen's parentage claim in light of NRS 126.021(3). The court rejected appellants' constitutional challenge to the statute as an independent basis, because appellants failed to provide the written notice required by NRAP 44, citing In re Candelaria. The court also rejected the argument that the matter should have proceeded as an adoption under NRS Chapter 127, holding parentage disputes are resolved under NRS Chapter 126 (Rosie M.). The court further addressed, in a footnote, appellants' due process argument based on delay, concluding appellants did not cogently argue how the delay—largely attributable to their own conduct—rose to a due process violation.

On child support, the court reviewed for abuse of discretion, deferring to factual findings but not to legal error (Backman v. Gelbman). The court affirmed the four-year arrearages award, holding the district court did not retroactively modify Milan's obligation; using the date the motion to modify was filed as the effective date is permissible under Ramacciotti v. Ramacciotti, and support may be awarded even after the child attains majority under Hargrove v. Ward. The court rejected the NRS 125B.140 retroactive-modification challenge on this basis.

As to the calculation, the court explained that NAC 425.140 provides the framework for determining an obligor's base child support obligation (Matkulak v. Davis), that the statutory obligation is presumed sufficient to meet the child's basic needs (NAC 425.100(2)), that a legal parent must support the child even where there are more than two legal parents (NRS 125B.020), and that a parent awarded primary physical custody may recover support from the non-custodial parent(s) (NRS 125B.030). The court held that although the district court correctly began with NAC 425.140, it abused its discretion by failing to consider Hammer's ongoing $500 monthly obligation when setting Milan's $667 obligation, which appeared to result in Rasmussen receiving approximately double the statutory amount. The court made no findings reflecting consideration of Hammer's obligation or application of the guidelines to determine Milan's share. The court therefore vacated the $667 obligation and the arrearages award and remanded.

In plain language

This case concerns the parentage, custody, and child support of a child referred to as L.H. Julie Hammer and Gonzalo Galindo Milan are L.H.'s biological parents. Mary J. Rasmussen is Hammer's ex-girlfriend and was listed as L.H.'s "father" on the birth certificate under the name Murphy Jo Rasmussen, which Rasmussen testified was her nickname.

The dispute began in 2012, when Rasmussen—believing she was L.H.'s parent because she appeared on the birth certificate—filed for custody after Hammer cut off her contact with the child. Milan, learning of L.H.'s existence for the first time, filed a competing custody complaint claiming he was the biological father. In 2013, the parties settled by agreeing that Rasmussen and Hammer would share physical custody, all three would share legal custody, and no one would pay child support.

In 2014, Hammer and Milan asked the court to add Milan to the birth certificate. The court ordered all three adults listed as parents. Hammer appealed, and in 2017 the Nevada Supreme Court vacated that order and sent the case back, directing the district court to hold a hearing to decide whether a child can have three legal parents under Nevada law and, if not, which two of the three were L.H.'s parents. The Supreme Court also ordered that L.H. be made a party with a guardian ad litem (a court-appointed representative who looks out for the child's interests).

After the case returned to the district court, there was extensive litigation. In October 2018, Hammer removed L.H. from Nevada in violation of the custody order; law enforcement returned the child, and Hammer was convicted of two counts of conspiracy to commit detention, concealment or removal of a child. The court then gave Rasmussen sole physical and legal custody and ordered Hammer to pay $500 per month in child support. Rasmussen also sought to make Milan pay support, and the court deferred that question until a hearing on parentage.

At the 2023 evidentiary hearing, Rasmussen testified she had been in a relationship with Hammer and helped raise L.H. until 2012. Milan testified he was unaware of L.H. until she was about six, did not know her birth date, and had not provided support. Hammer denied any relationship with Rasmussen and spent her time arguing legal points rather than giving factual testimony. The guardian ad litem testified that L.H. had no preference and that, in the guardian's view, it made most sense to list all three adults as parents—but if only two could be listed, it should be Rasmussen and Hammer, because Milan had largely been uninvolved.

The district court ruled that Nevada law permits a child to have three legal parents, ordered the birth certificate amended to list all three, ordered Milan to pay child support, and found he owed four years of arrearages. The court used the standard Nevada formula to calculate Milan's obligation.

On appeal, the Court of Appeals affirmed the ruling that L.H. could have three legal parents, relying on a 2021 amendment to a Nevada statute that expressly allows a court to find that a child has a legal parent-child relationship with more than two people. The court also affirmed that Milan could be ordered to pay four years of arrearages, explaining that setting the effective date as the date the motion to modify support was filed is not an improper "retroactive" increase.

However, the court vacated the specific amount of Milan's support. Because Hammer was already paying $500 per month and Milan was ordered to pay $667 per month, Rasmussen appeared to be receiving roughly double the standard support amount. The court held the district court should have considered Hammer's existing obligation when setting Milan's, and sent that issue back for further proceedings. The court also dismissed many of the appellants' other challenges, finding it lacked jurisdiction over them or that they had been forfeited.

Counsel of record

Counsel is shown when the opinion or the court's docket names it.