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Awarding Fees Where Jurisdiction is Contested
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The courts may not award any fees if the court lacks jurisdictionThe mother was awarded custody of their two children. The father was ordered to pay support of $50 per month for each child. The father paid that support through September 1968, when he died. The mother filed a claim against the estate for $3,850, the amount claimed to be due for support under the decree from the father’s death until the children reached majority. The district court dismissed the action holding that it appeared the mother had adequate protection under the probate laws under request for family allowances on distribution of the estate upon closing. UP> To date, in every known instance, PERS not only has refused to directly make payments to a spouse’s estate in accordance with that holding, it has reportedly refused to even accept orders submitted stating that an individual member is required to make those payments if the spouse dies first. It is apparently PERS policy to reject any proposed order reciting this Court’s holding in Wolff on that point.1 PAN style="FONT-SIZE: 14pt"> The military member had appealed in Payne, claiming that the SBP should be funded solely by the former spouse because it is "a court-created asset for her benefit alone." The appellate court rejected that argument, holding instead that the SBP is "an equitable mechanism selected by the trial court to preserve an existing asset - the wife’s interest in the military pension."1 Several other courts have reached the same conclusion, but most of the decisions so holding did not fully discuss the math involved in the text of their decisions, or explain the policy choices for who should bear what expense.2 We conclude that the district court properly disregarded the parties' definition of joint physical custody because the district court must apply Nevada's physical custody definition-not the parties' definition. We also conclude that the district court abused its discretion by not making specific findings of fact to support its decision that the custody arrangement constituted joint physical custody and that modification of the divorce decree was in the best interest of the child. nbsp;The district court ordered the father to pay child support of $1 ,000 per month per child. The district court found that the amount awarded was "fair and equitable" in light of "the vastly different incomes and financial resources of the plaintiff and defendant, and the amount of time the children will spend with each parent as a result of this decree." The father contended that before a district court could award support above the above the statutory formula, the obligee was required to prove that the additional amount was necessary to meet the child's needs. Missouri X The court addressed the constitutional challenges head on, and found that there was no constitutional issue in state court division of military retired pay under the USFSPA. B> Probably the most obvious variation from place to place is when to stop counting. California, Nevada, and Arizona are three community property States sitting right next to one another, and it is not unusual for cases to involve parties with ties to any two of them. All three claim to apply the time rule to pension divisions, but they do the math differently. e. Non-Exercise of Parenting Time Adjustment: The court may make an adjustment based on the historical non-exercise of parenting time as set forth in the parenting plan. The amount allowed should be entered on line E.2 of the child support worksheet. P> In 1993, the Nevada Legislature approved AB 555, which basically patterned the state PERS statutes after the ERISA/REA rules governing private Qualified Domestic Relations Orders. The new provisions required court orders dividing PERS benefits to be signed by a district court judge or supreme court justice, and explicitly provided for enforcement on behalf of an "alternate payee," who may be a spouse, former spouse, child, or other dependent of a member or retired employee.2 The adoption of ERISA terminology, however, carried with it the unfortunate potential of confusing the field rather than clarifying it.3 B> At least nothing happened in the 2007 resetting of the presumptive maximums that made matters worse for children receiving support. But the entire episode provides an opportunity to think through why we do things the way we do things. The wife died intestate in February 1934. The wife was survived by her husband and daughter. The husband was made the administrator of the estate. The husband, as the administrator, requested distribution of the estate which was primarily two fractional city lots which he claimed as community and should be distributed to him as the surviving husband. The daughter objected claiming that the property was the separate property of her mother. The district court decided that the property was community property. The mother was awarded custody of their two children. The father was ordered to pay support of $50 per month for each child. The father paid that support through September 1968, when he died. The mother filed a claim against the estate for $3,850, the amount claimed to be due for support under the decree from the father’s death until the children reached majority. The district court dismissed the action holding that it appeared the mother had adequate protection under the probate laws under request for family allowances on distribution of the estate upon closing. The Supreme Court reversed. The Court noted that in Walsh v. Walsh, 103 Nev.287, 738 P.2d 117 (1987), it held that retirement benefits earned during marriage were community property. The Court distinguished between community property and spousal support, specifically the fact the community property was not subject to future modification. The Court held that the district court erred when it characterized the wife’s community property as spousal support which subjected it to possible future modification. c) Definition of a day. For the purposes of this section, "day" means a period of 24 hours; however, where the parent who has the fewer number of overnight periods during the year has an overnight period with a child, but has physical custody of the shared child for less than 24 hours during such overnight period, there is a presumption that each parent shall be allocated one-half of a day of custody for that period. Courts throughout the country are in fair consensus that a spouse can receive a share of any early retirement taken by a member, under the theory that the "early out" benefits are as divisible as the retirements that were given up to receive those benefits, despite the lack (for SSB and VSI) of any federal mechanism for direct payment to the former spouse.2 Other courts throughout the country have used similar language or reasoning to reach the same results regarding both programs.3 B> Chapter 125 of the Nevada Revised Statutes provides the statutory framework for the issues involved in the dissolution of a marriage. NRS 125.150 provides guidelines for the court regarding numerous issues, including the adjudication of property rights. At least in those cases in which there is a "fallback" clause regarding alimony intertwined with the property award to the spouse, State courts have approved the use of alimony to enforce what is actually a property award. That is why there is such a fallback clause in the standard clause set. Use the following paragraph if: (1) the Member has already retired; (2) the SBP was NOT elected at the time of retirement; (3) it is desired to have the SBP in effect for the Spouse in the future, if possible. Note that, as written, the following paragraph does not allocate the SBP premium cost. Doing so, in this case, will go a long way toward preventing confusion in the family courts, and the waste of judicial and party resources on litigation of matters that would be made unnecessary by clarity in the legal standards and parameters. B> By way of statutory provisions that trace back to 1861, a Nevada court with personal jurisdiction over both parties to the action acquires jurisdiction to determine the custodial arrangement for their children, whether or not the children are within the physical boundaries of the state. The statutes generally give the court broad powers over custody. NRS 125.510(1) provides that: It is possible for a military retiree to simply continue receiving military retired pay, and then go to work for, qualify for, and begin receiving retirement benefits through the Civil Service system. It is also possible for a military retiree to "roll over" the accrued years of military service into a civil service retirement. Which is the better choice depends on the rank and grade achieved by the member in each system. If the member had a relatively low military rank, but achieved a high "GS" rating in the Civil Service, then the years of military credit might well be most valuable if treated as additional service credits in the Civil Service calculation. Obviously, the calculations will vary case by case. A "Thrift Savings Plan" ("TSP") was created by the 1986 statute creating the "Federal Employees Retirement System," or FERS, which replaced the older Civil Service Retirement System," or CSRS. It first accepted contributions on April 1, 1987. FERS employees get matching federal contributions up to a certain level. While the program is open to CSRS employees, there are no matching contributions for them. The TSP is a defined contribution type of plan for federal employees; like a private employer’s 401(k) plan, it is a mechanism for diverting pre-tax funds into retirement savings. The cases to date in Nevada indicate that disproportionate division is essentially a remedy for wrongful behavior on the part of the other spouse - waste, fraud, secreting or destroying community property, etc. Ultimately, the facts, and what can be proven, drive the availability of the remedy. In the meantime, there does not appear to be any Nevada authority on the question of whether to value and divide accrued, unused sick leave and vacation time upon divorce, leaving the Family Courts with the conflicting cases from elsewhere, and the general guiding principles from the Nevada cases indicating that anything that can legitimately be termed "property" acquired during marriage should be valued and divided upon divorce.28 The blurring and blending of tests and terminology from the UCCJEA and the Hague Convention in the UCAPA seems likely to promote some confusion among courts and counsel as to what legitimate objectives and arguments might be raised in which kinds of proceedings. Counsel must be diligent in seeing that proceedings under all three laws remain focused on the legitimate objectives of the proceedings. The Supreme Court affirmed. The Court reiterated that a good faith sensible reason for to move has been defined as one not designed to frustrate the visitation rights of the noncustodial parent. Also reiterated that the district court should focus on the availability of adequate alternate visitation. The Court held that the district court did not abuse its discretion in denying the mother’s request to move to Florida and in concluding that the visitation proposed was not adequate to preserve and foster the type of relationship the father, who was a firefighter, had with his children. Actions regarding the resolution of the marriage filed independent of the divorce proceedings to reform or rescind unmerged property settlements fall within the jurisdiction of the family court pursuant to Article 6 section 6(2)(b) of the Nevada Constitution. The family court may adjudicate matters related to its jurisdictional authority. The Court noted that the civil/criminal court had jurisdiction to resolve the case, holding that "both the family and the general divisions of the district court have the power to resolve issues that fall outside their jurisdiction when necessary for the resolution of those claims over which jurisdiction is properly exercised." As an "example," the Court stated that the family court had jurisdiction to reach a rescission or reformation claim "where family law issues are implicated," and likewise the general jurisdiction court could reach a family law "issue" where necessary to resolve a claim "that would ordinarily fall within its jurisdiction, such as reformation or rescission." The Court ruled that the wife was not entitled to a jury trial on the claim for contract damages, since the contract claim arose out of the marital relationship and is really "an action attempting to resolve the marriage," so that no jury entitlement existed under NRS 125.070. Walsh v. Walsh, 103 Nev. 287, 738 P.2d 117 (1987) When the parties were divorced in 1980, the wife’s attorney drafted the decree which the district court adopted. The husband was in proper person. The decree granted to the wife "one-half of [James’] pension with the United States Government." Five years later, the husband retired. The wife then claimed she was entitled to receive one-half of the entire pension, including that portion earned during the five-year period after the divorce. The husband filed a motion to clarify the parties’ rights. The district court concluded that the decree unambiguously granted the wife one-half of the entire pension, including that portion earned after the divorce. The district court also concluded that it lacked jurisdiction to modify the decree because six months had passed since its entry. The Supreme Court reversed. The Court began by noting that only retirement benefits earned during the marriage were community property citing to Forrest v. Forrest, 99 Nev. 602, 607, 668 P.2d 275, 279 (1983). The Court concluded that the husband was entitled to retain as his sole and separate property benefits earned after the divorce. The Court held that in the absence of express language specifying otherwise, it was unwilling to conclude that the phrase "one-half of [James’] pension with the United States Government" unambiguously entitled the wife to one-half of that portion of the pension earned after the divorce. The Court noted that decree showed a contrary intent because the decree stated that the district court retained jurisdiction. The Court concluded that the decree was unambiguous and could be interpreted based on the language in the decree itself, without resort to extraneous evidence. You can find Awarding Fees Where Jurisdiction is Contested Rivero State Bar Amicus Brief CONCLUSION Rivero v Rivero Opinion CONCLUSION Spousal Support community property The Marren and Page Case List Grey v Grey The Marren and Page Case List Peardon v Peardon Rush v Rush Applebaum v App The Marren and Page Case List Voorhees v Spencer Some Practical Points to Actual Collection of Child Support Alimony and Pro The Marren and Page Case List In the Matter of Parental Rights as to J L N Awarding Fees Where Jurisdiction is Contested available at lvfamilylawyer.com by clicking above. Site Map Ogawa Amicus Brief Statement of Facts The Marren and Page Case List Boulter v Boulter The Marren and Page Case List Langevin v York Divorcing the Military and Serving the Civil Service Section II Subsection Las Vegas PERS expert lawyer The Basics of Jurisdiction a Remedial Course Legal Authority for Use in Requesting Fees in a Paid Case |