IN RE: MARRIAGE OF CARNEY AND PROBST (FAMILY)

Statutes cited

Key holdings

• -Challenges to decisions resolved in a prior order of affirmance are barred by the law-of-the-case doctrine, which "cannot be avoided by a more detailed and precisely focused argument subsequently made after reflection upon the previous proceedings," absent an applicable exception.
• -A party prevails for purposes of NRS 18.010(2)(b) if it "succeeds on any significant issue in litigation which achieves some of the benefit it sought," and need not succeed on every issue.
• -An award of attorney fees under NRS 18.010(2)(b) is unsupportable where the district court fails to make findings that the opposing party's claim was brought or maintained without reasonable ground or to harass the prevailing party; findings that merely recite that parenting time was suspended before the motion was filed are insufficient.
• -Where a party requested fees under NRS 125C.250 and the district court examined reasonableness under the Brunzell factors and the disparity in the parties' income under Wright v. Osburn, an attorney fee award supported by substantial evidence may be affirmed under NRS 125C.250 even though the district court expressly awarded fees under a different statute.
• -An appellate court will affirm a district court order that reaches the correct result even if it did so for a different reason.

Practitioner summary

The Court of Appeals reviewed the district court's award of attorney fees for an abuse of discretion. Miller v. Wilfong, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005). An abuse of discretion occurs when the court's decision is not supported by substantial evidence. Otak Nev., LLC v. Eighth Jud. Dist. Ct., 129 Nev. 799, 805, 312 P.3d 491, 496 (2013). The court also invoked the principle that it will affirm a district court order reaching the correct result even on a different reason. Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987). As a threshold matter, the court held that Probst's challenges to the decisions in the denied January 2024 motion, and to the court's prior order of affirmance (Probst v. Carney, No. 89437-COA, 2025 WL 1778842 (Nev. Ct. App. June 26, 2025)), were barred by the law-of-the-case doctrine. The court quoted Litchfield v. Tucson Ridge Homeowners Ass'n, 140 Nev., Adv. Op. 57, 555 P.3d 267, 270 (2024): "Under the law-of-the-case doctrine, a legal decision made at one stage of a criminal or civil proceeding should remain the law of that case throughout the litigation, unless and until the decision is modified or overruled by a higher court." It further relied on Hail v. State, 91 Nev. 314, 316, 535 P.2d 797, 799 (1975), for the rule that the doctrine cannot be avoided by a more detailed and precisely focused argument made later. Probst did not demonstrate an applicable exception. On the fee award, the court applied the Albios framework that a district court may award attorney fees only where authorized by statute, rule, or contract. Albios v. Horizon Cmtys., Inc., 122 Nev. 409, 417, 132 P.3d 1022, 1027-28 (2006). Under NRS 18.010(2)(b), fees may be awarded to a "prevailing party" when "the court finds that the claim . . . of the opposing party was brought or maintained without reasonable ground or to harass the prevailing party." The court applied the prevailing-party standard from Las Vegas Metro. Police Dep't v. Blackjack Bonding, Inc., 131 Nev. 80, 90, 343 P.3d 608, 615 (2015) - a party prevails if it succeeds on any significant issue achieving some of the benefit sought - and held Probst failed to show Carney was not the prevailing party, given Carney's success on the significant issues raised by her motion. Turning to the substantive findings required under NRS 18.010(2)(b), the court cited Rodriguez v. Primadonna Co., 125 Nev. 578, 588, 216 P.3d 793, 800 (2009), for the standard that a claim is frivolous or groundless if there is no credible evidence to support it, and Rivero v. Rivero, 125 Nev. 410, 441, 216 P.3d 213, 234 (2009), for the principle that an unsuccessful or meritless motion alone is insufficient to support a fee award. The court found that the district court's order premised the fee award on the fact that Probst's parenting time had been suspended due to her failure to comply with the safety plan - not on findings that her motion was brought or maintained without reasonable ground or to harass. Under Roe v. Roe, 139 Nev. 163, 183-84, 535 P.3d 274, 294 (Ct. App. 2023), such an award is unsupportable absent findings that a party's claims or defenses were unreasonable or meant to harass. The court therefore concluded the NRS 18.010(2)(b) findings were inadequate. The court nonetheless affirmed on an alternative statutory basis. NRS 125C.250 authorizes the district court, "in an action to determine legal custody, physical custody or visitation with respect to a child," to "order reasonable fees of counsel and experts and other costs of the proceeding to be paid in proportions and at times determined by the court." Citing Matkulak v. Davis, 138 Nev. 647, 651, 516 P.3d 667, 671-72 (2022), the court noted this grant of broad discretion. Because Carney had requested fees under NRS 125C.250 and the district court recognized its authority under that statute, the question became whether the court had made adequate findings of reasonableness. Under Roe, adequate findings of reasonableness are necessary; and under Miller, 121 Nev. at 623-24, 119 P.3d at 730, reasonableness in family law matters requires consideration of the Brunzell factors (Brunzell v. Golden Gate National Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969)) and the disparity in the parties' income (Wright v. Osburn, 114 Nev. 1367, 1370, 970 P.2d 1071, 1073 (1998)); see also O'Connell v. Wynn Las Vegas, LLC, 134 Nev. 550, 560, 429 P.3d 664, 672 (Ct. App. 2019). The court found the district court had made specific findings on each of the four Brunzell factors and had considered the income disparity in setting both the total award of $18,300 and the $250-per-month payment schedule. Concluding these findings were supported by substantial evidence and that the court had properly examined reasonableness under Brunzell and Wright, the court affirmed the award under NRS 125C.250, relying on Rosenstein and on Pelz v. Perea, No. 90584-COA, 2026 WL 1017534, at *2-3 (Nev. Ct. App. Apr. 14, 2026). In footnotes, the court declined to reassign the matter to a different district court judge, citing Williams v. Second Jud. Dist. Ct., 142 Nev., Adv. Op. 5, 583 P.3d 223, 230 (2026), and denied Carney's request for attorney fees on appeal, concluding the appeal was not frivolous or brought or maintained without reasonable grounds, citing Woods v. Label Inv. Corp., 107 Nev. 419, 427, 812 P.2d 1293, 1299 (1991).

In plain language

Kristina Probst and Casey Carney divorced in 2011 and share two minor children. Over time, the parents operated under a custody arrangement in which they shared joint legal custody but Carney had primary physical custody, while Probst had parenting time. Concerns arose after sexual contact occurred between Probst's stepson and the parties' younger child. The district court then modified Probst's parenting time and required it to be supervised. The parties agreed to a safety plan and to reunification therapy. To carry this out, the court appointed a therapist and a parenting coordinator - a professional who helps parents resolve disputes and whose decisions the parties were directed to follow (with the option to ask the court to review any decision). Based on the therapist's recommendations, the court later allowed Probst to have unsupervised parenting time. Disputes later arose between Probst and the parenting coordinator over the safety plan and Probst's parenting time. In January 2024, Probst filed a motion asking the court to remove the therapist and parenting coordinator, claiming they were biased against her, and alleging Carney had improperly withheld her parenting time. After an evidentiary hearing, the court denied the motion. It found safety issues had occurred in Probst's home, found the therapist and parenting coordinator were not biased (though they could no longer work with Probst), kept joint legal custody with primary physical custody for Carney, and allowed Probst unsupervised parenting time but only in the Reno/Sparks area - not in California, where she lives. The court declined to give Probst extra parenting time to make up for time she had lost. Probst appealed that order, and the Court of Appeals affirmed it in an earlier case. Separately, Carney asked the district court to order Probst to pay his attorney fees. The court granted that request and ordered Probst to pay $18,300 in fees, at $250 per month, taking into account that Carney's household earned more than Probst's. This appeal concerns that fee award. On appeal, the Court of Appeals made several points. First, to the extent Probst tried to re-argue the decisions from her denied 2024 motion, the court said those issues had already been decided in the prior appeal and were now the "law of the case" - meaning a legal decision made earlier in a case generally stays settled unless a higher court changes it. Probst could not reopen them by framing her arguments more precisely. Second, on the fee award, the court concluded the district court was right that Carney was the "prevailing party" - the side that won on significant issues - because Carney succeeded on the major questions raised by Probst's motion. Third, the court agreed with Probst on one legal point: the district court had awarded fees under NRS 18.010(2)(b), a statute that allows fees only when the losing party's claim was brought or maintained without reasonable grounds or to harass the other side. The district court had not actually made those required findings; it had focused only on the fact that Probst's parenting time had been suspended before she filed her motion. That reasoning did not support a fee award under that particular statute. However, the Court of Appeals affirmed the award anyway under a different statute, NRS 125C.250, which gives courts broad discretion to order reasonable fees in custody and visitation cases. Carney had actually requested fees under that statute, and the district court had analyzed the reasonableness of the fees using the required factors (the Brunzell factors) and had considered the income gap between the parties. Because an appellate court can uphold a correct result even if the lower court gave a different reason, the award stood. The Court of Appeals also declined to reassign the case to a different judge and declined Carney's request for fees for having to defend the appeal.

Counsel of record

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