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Date: 08-15-2024
Case Style:
Michael Ephrian Kragen v. Ericka Kragen
Case Number: D-23-663448-D
Judge: Paul M. Gaudet
Court: Eighth Judicial District Court, Clark County, Nevada
Plaintiff's Attorney:
Defendant's Attorney:
Description:
Las Vegas, Nevada family law child custody lawyers represented plaintiff and defendant.
Erika and Michael were married in 2016 in San Diego, California, and have three minor children together. On August 4, 2022, they relocated from San Diego to Henderson, Nevada, where they lived with Michael's parents. They subsequently enrolled their children in a private school where Erika took a job as a teacher's aide.
On or about January 12, 2023, Erika indicated that she wanted a trial separation from Michael. In response, Michael allegedly began crying, grabbed a kitchen knife, pointed it at himself, and threatened suicide. When Erika attempted to calm him down, Michael walked outside alone with the knife. Then, according to Erika, Michael stabbed the knife through the netting of their children's trampoline, while Michael claimed he threw the knife to the ground, inadvertently slicing the trampoline. Erika did not call the police, nor did she seek a protective order at that time.
More than a week later, on January 21, Erika took the children to San Diego to visit her family for a week during a school break. They returned to Henderson on January 29. Two days later, on January 31, while Michael was still at work and unbeknownst to him, Erika again took the children and drove back to stay with her family in San Diego. Only after their departure did Erika notify Michael by text that they had left for San Diego, that he was "welcome to call or visit," and that they "need[ed] a divorce." Michael stayed behind in Nevada.
The parties agree that January 31 was the last day the children were physically present in Nevada. Nevertheless, for several weeks after their departure, the children remained enrolled in their Nevada school, and Erika was still employed by the school. Erika and Michael also began attending marriage counseling.
Towards the end of February, Erika stopped communicating with Michael and withdrew the children from their school. On February 26, after speaking with Erika over the phone, Michael realized their relationship was over. That same day, he filed a complaint for divorce in Clark County, Nevada. Two days later, on February 28, Erika petitioned for legal separation in San Diego County, California.[1]
Erika was served with Michael's Nevada complaint on March 9 and filed an answer. More than two weeks later, on March 28, Erika applied for an emergency domestic violence restraining order in California, citing the January knife incident and prior alleged physical and emotional abuse. On April 4, while Erika's restraining order request was pending in California, the Nevada district court orally announced a temporary custody arrangement providing that the parties would share joint legal and physical custody of their children. This temporary order was reduced to writing on April 20. Meanwhile, on April 18, the California court granted Erika's request for the emergency domestic violence restraining order and also issued its own temporary custody order awarding Erika sole legal custody and joint physical custody, with Michael permitted two monitored visits per week.[2]
The Nevada district court then held a telephonic conference with the California court to address the competing temporary custody orders and discuss which state had jurisdiction over the parties' children. Both courts acknowledged that Nevada had jurisdiction over the parties' divorce and the division of marital assets; they further recognized that the children had resided in Nevada for close to the six months necessary to establish Nevada's home state jurisdiction under the UCCJEA. The California court ultimately agreed to "defer" to the Nevada court's decision on the issue of child custody jurisdiction.
Following the telephonic conference, the Nevada district court entered an order finding that it had home state jurisdiction over the parties' children. The court determined that the children had resided in Nevada for six consecutive months-between August 1, 2022, and January 31, 2023- relying on Erika's statement in her California petition for legal separation. Erika petitioned this court for a writ of mandamus or prohibition, arguing that the district court abused its discretion by relying on the August 1 date when the record contained evidence that they arrived in Nevada on a later date. Noting that the district court had "conflicting evidence of the parties' time in Nevada," this court granted Erika's petition and vacated the district court's order with instructions to hold an evidentiary hearing and to reconsider the jurisdictional issue. Kragen v. Eighth Jud. Dist. Ct., No. 86626-COA, 2023 WL 7141048, at *4 (Nev. Ct. App. Oct. 30, 2023) (Order Granting Petition for Writ of Mandamus).
Thereafter, the Nevada court held an evidentiary hearing to determine whether Nevada or California had home state jurisdiction. At the hearing, both parties agreed that the children arrived in Nevada on August 4. However, the parties disputed whether the children's absence from Nevada after January 31 was temporary or permanent.
Erika took the position that the children's state of residence changed on January 31, testifying that the reason she moved back to San Diego was "[b]ecause there was domestic violence." Erika further testified
that she had not intended to return to Nevada but acknowledged that she and Michael began attending marriage counseling thereafter.
Michael testified that when Erika left with the children, he believed they were coming back to Nevada for several reasons. Specifically, the children were still enrolled in their Nevada school, and they had initially moved to Nevada to attend that school; Erika was still employed at their children's school as a teacher's aide; he and Erika began marriage counseling, causing him to "expect things to go back to normal"; and Erika did not lay down roots upon her arrival in San Diego. During closing argument, Michael asserted that until the end of February, he believed the children's absence from Nevada was temporary.
Outcome: Jurisdiction assumed.
Affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: