Child Support

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UP> It is difficult to generalize. Courts have focused on the apparent tactics of the non-military spouse,1 or on the apparent bad-faith conduct of the member2 in reaching their decisions. The cases are - necessarily - very fact-specific. The Court found that the misrepresentation of the value of the pension could only be attributed to mutual mistake or fraud; if both parties were mistaken, the property settlement was based upon the mistake that the property was being evenly divided, entitling the wife to redress under NRCP 60(b)(1); if husband or his attorney knew the true value, they fraudulently misrepresented under NRCP 60(b)(2). The Court noted that the purpose of Rule 60(b) was to redress any injustices that may have resulted because of excusable neglect or the wrongs of an opposing party, and should be liberally construed to do so, citing to Nevada Indus. Dev. v. Benedetti, 103 Nev. 360, 741 P.2d 802 (1987). Where the military member is the custodial parent, there is authority indicating that the member can use the SCRA to stave off change-of-custody or contempt proceedings, even where the non-military parent is thus and governed by, the Employee Retirement Income Security Act of 1974, known as "ERISA,"1 codified at 29 U.S.C. § 1001 et seq. ERISA was substantially modified and refined in 1984 by the Retirement Equity Act ("REA"),2 which provided that certain domestic relations orders, containing specific terms, must be accepted and honored by ERISA-qualified pension plans. SPAN> Miller v. Wilfong, 119 P. 3d 727, 121 Nev. Adv. Rep. 61 (September 22, 2005)The parties dated, but never married. They had a child together. After the child was born, the father filed a petition to determine paternity. The father served the petition on the mother after the welfare office sought to recoup funds given to the mother from the father. The father also sought joint physical custody. Pro bono counsel represented the mother, and the father appeared in proper person, but later obtained counsel. The district court awarded the parties joint legal custody and awarded the mother primary physical custody and child support. The district court also awarded the mother’s attorney $3,000 in attorney fees pursuant to Sargeant v. Sargeant, 88 Nev. 223, 495 P.2d 618 (1972). In addition to concluding that fees could be awarded to pro bono counsel and that fees could be awarded in paternity cases, the Court also issued sanctions for filing a deficient brief. The parties had one child together. In the decree, the mother was awarded primary custody. The father was ordered to pay support of $200 per month. The father ceased making payments. Approximately five years after the father stopped making the payments, and approximately two weeks after the son’s eighteenth birthday, the mother filed a motion to reduce 64 months of child support arrears to judgment. The father opposed asserting that the mother had impliedly agreed to modify the support agreement, had impliedly waived her right to child support, or was estopped from asserting her right to the support. The district court held a hearing and found that despite repeated contact for several years after the payments stopped, the mother acknowledged she never made any demand nor did she pursue her legal rights during the time the payments stopped and the child emancipated. The mother also told the father the son did not want to see him that he should stay away. The father’s version of the events was corroborated by a third party. The district court found that the mother had impliedly waived her right to the child support and denied her motion to reduce the arrears to judgment. 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. Where the divorce precedes the time of the member making the CBS/REDUX election, the decree most probably would anticipate payment of the maximum possible sum of retirement benefits. Where the member, post-divorce, takes the election, and thus both obtains cash and reduces the value of the retirement benefits, the expected orders should be a distribution to the spouse of a share of the cash payment equal to the spousal share of the retirement benefits, or recalculation of the spousal share of the retirement, to increase it so that it would be equal to what it would have been if the member had not taken the election. Given the complicated calculation of a REDUX retirement, the first of these would be simpler. The Supreme Court affirmed. The Court discussed the principle of the rule of the law of case and found that the district court followed its direction from the previous opinion. The Court noted that the district court found that there were a number of years in which the community expenses exceeded community income. The Court also noted that the husband made payments for community expenses under the assumption that the post-nuptial agreement was valid. Because of that, there never was a conscious choice by the husband to spend separate property on community expenses. The Court agreed with the the district court’s conclusion that the husband’s separate property estate was entitled to reimbursement. The Court held that if the husband made a conscious decision to use his separate property, rather than available community property to pay community expenses, such use of separate property would have constituted a gift to the community for which reimbursement could not be claimed. b) If there is not a court order awarding parenting time, the court shall determine the child support award without consideration of the parenting expense adjustment. If a parenting tirne order is subsequently issued or is issued in the same proceeding, then the child support order shall include application of the parenting expense adjustment. Subd. 2. Calculation of parenting expense adjustment. The obligor is entitled to a parenting expense adjustment calculated as provided in this subdivision. The court shall: (1) find the adjustment percentage corresponding to the percentage of parenting time allowed to the obligor below: If the matter proceeds to litigation, the forum State will have to rule on where the military member is actually a "resident" and "domiciled." This can be far harder than it appears, especially since States diverge radically on the meaning of those terms. In some places "residence" is a physical question of location at the time of filing, while "domicile" is that permanent home "to which one returns."1 In other places, the meanings are reversed.2 In some States, residence and domicile have the same meaning.3 A service member who has close connections to more than one State will still only have one domicile.4 If the service member has significantly more connections to one State than another, then the State to which he has closer ties is his domicile.5 This was a case with a limited record. The trial transcript was not a part of the record and except for the district court's findings of fact the husband's statement was the only recitation of facts which the Court had to review. The husband appealed from the district court making a lump sum alimony awards contingent upon the wife seeking training to improve her hearing ability and to improve her earning capacity as a beauty operator. The Court approved the district court making a lump sum alimony awards contingent upon the wife seeking training to improve her hearing ability and to improve her earning capacity as a beauty operator. The parties settled the suit by entering into a stipulation to compromise a paternity action under NRS 126.141(1)(b). The agreement provided that paternity would not be determined, at least with regard to the formal record. Paragraph 2(d) allows a court to order the employee to "provide any other form of security" for actual payment to the former spouse. This, also, has apparently never been done. The father obtained custody in a 1987 divorce. On December 30, 1993, the mother obtained Temporary Protective Order against domestic violence, alleging physical abuse eight years earlier, coupled with recent receipt of "bizarre" letters, alleged inquiries by the father into the car being driven by the mother, and the mother’s sighting of the father stalking her so that she felt in danger. The mother sought extension of the Temporary Protective Order in January 1994, seeking alteration of the mother’s visitation with child, but not modification of custody, with a hearing set in April. The father did not appear at the TPO extension hearing; the record on appeal did not specify what occurred, but the district court issued an order five days later granting the mother physical custody. The father requested an emergency stay; there was a 30-minute hearing, five days after which the court denied the stay request and reaffirmed its change-of-custody order. Dept. of Child & Family Servs. v. Eighth Judicial Dist. Court of Nev., 92 P.3d 1239, 120 Nev. Adv. Op. 50 (July 12, 2004) The child was born to a couple with substance abuse problems. The child had no contact with his natural parents since he was eighteen months old. The child came into DCFS custody when he was three years old, and since that had been to three foster homes and four group homes. On three occasions, the child was committed to psychiatric facilities for self-inflicted wounds and violence against others. The child had a history of being physically and sexually abused and suffered from various mental disorders. In February 2000, the child was placed in a foster home and his development was monitored. The child was also enrolled in Reaching Our Community Kids (ROCK) program, an after-school rehabilitation service designed to develop social skills in children. In October 2003, the social worker wrote a report on the child. The report acknowledged the child’s continuing behavioral problems, and noted that the child should remain in his current foster placement. UP> It is difficult to generalize. Courts have focused on the apparent tactics of the non-military spouse,1 or on the apparent bad-faith conduct of the member2 in reaching their decisions. The cases are - necessarily - very fact-specific. The parties were married when the lawyer-husband worked his way to part owner of a firm. When the parties separated, the husband stopped wife from getting her own lawyer upon divorce with promise that "I will take care of you" and "I will be fair to you and the children," and he prepared all papers. Seven years later, in consulting with a lawyer, the wife first learned that law practice was community property divisible asset. The wife then sought partition. The district court denied her request stating that the wife’s position was "Monday morning quarterbacking" and remorse that she "didn’t get more." The court further found that the wife failed to prove by a preponderance of the evidence that the law practice was not divided upon divorce. After the fall of Rome, marital practices in the West devolved to the level of tribal or local custom. The practice of community ownership had existed among the Germanic tribes after the fall of Rome, and was brought by them in their migrations to and through the Iberian Peninsula to what is now Spain and France.2 In analyzing the facts of the case, the Court noted that the district court deviated from the statutory formula, and that under the formula the district court should have ordered support of $500 per month. The Court cited to and quoted from Barbagallo v. Barbagallo,105 Nev. 546, 552, 779 P.2d 532, 536 (1989) "´[a]pplication of the formula must be the rule, and deviation from the formula for the benefit of the secondary custodian must be the exception,’" and when deviating from the formula, the district court must "´set forth findings of facts as to the basis for the deviation. . . . The ´basis for the deviation’ must be found in the unfairness, the injustice, which may result to the secondary custodian. . . .’" Id. at 1111. The Supreme Court affirmed. The Court noted that all property acquired after marriage is presumed to be community property, and the burden of proof is upon the person claiming it to be separate property citing to Lake v. Bender, 7 P. 74, 18 Nev. 402 (1884). The Court also noted that the house was the home of husband and the wife and their children that the keeping of boarder was incidental. The Court concluded that a loan made during the marriage to the husband, was a loan to the community, and the lower court was justified in concluding from the evidence that respondent’s indebtedness for board and lodging was community property, which husband had the right, under the statute, to have applied as payment on the note. First, the Missouri definition recognizes that "joint physical custody" could exist even if parents do not have an equal time share. The FLS asks the Supreme Court to clarify that an award of joint physical custody should not be an option the trial court may consider unless some objective minimum time threshold is established. The fifth scenario presumes that the court wants to "equally divide" the premium, which would be accomplished by decreasing the spousal share to 23.2620%. This requires decreasing the spousal share somewhat from the default, and increasing the member's share somewhat, to cause a sufficient dollar adjustment so that each pays exactly the same amount toward the premium cost that the military will take "off the top." There is some equitable logic in this idea, although it still leaves the former spouse over-secured, in that the possible survivorship that each party might receive is maximized, and they equally share both the cost of the survivorship benefit that the member has on the spouse's life (i.e., none), and the cost of the survivorship benefit that the spouse has on the member (the only survivorship benefit that has a cost associated with it). It seems that at the March 8, 2005, hearing (which gave rise to the March 29, 2005, Order in which the district court concluded that it had jurisdiction), Mother¡¯s counsel admitted that Father had not yet even been served with the Motion, and thus had no notice of the hearing or ability to respond. The district court nevertheless took Mother¡¯s representations that there was "no consent" for the children to remain in Japan with Father as a fact, and based its finding of jurisdiction upon that representation. Where a defendant has not made an appearance in an action, a default judgment (for temporary or permanent orders) may only be obtained upon affidavit stating that the person against whom default is requested is not in the military.5 If it appears that a person against whom default is sought is a member of the armed services, default may not be entered against the member until the court appoints an attorney for the member, who is then charged with the duty to "not waive any defense" until the member is located.6 Previously, SBP payments were reduced for a beneficiary who aged 62 or older, although an expensive supplement was developed which, if purchased, eliminated the reduction. This result was ironic, because the core holding of Millen was that when a judge’s duty to sit conflicts with a client’s right to choose counsel, the client’s right generally prevails, so that the client is assured his counsel of choice. The elimination of recusal lists based on the personal bias of judges against specific lawyers had precisely the opposite effect, resulting in many clients effectively being denied counsel of their choice. There is a significant level of consistency in the foreign decisions with the basic reasoning of Feder. In Cohen v. Cohen,11 for example, the parties came from Israel to New Jersey. The mother took the child back to Israel in April, 1992, against the wishes of the father. He applied under the Convention for the return of the child to the United States from Israel, and his request was granted. Even though the mother argued that her job and move to the United States of America was temporary, and that she did not have immigrant status here, the court found that the United States of America was the habitual residence of the child and that was the determining factor of the Convention. The USFSPA set up a federal mechanism for recognizing state-court divisions of military retired pay, including definitions that were prospectively applicable, and rules for interpretation to be followed by the military pay centers in interpreting the law; later, regulations were adopted, and the pay centers were consolidated." The 1865 Nevada Constitution contained a Section 31 to Article Four, addressing the separate property of wives owned by her upon marriage or thereafter acquired by gift, devise, or descent, and providing for the passage of further laws "defining the rights of the wife in relation, as well to her separate property as to that held in common with her husband" and "providing for the registration of the wife¡¯s separate property." Nevada¡¯s formal community property scheme came into existence through the Statutes of 1873. B> There are two forms of disability awards, under chapters 38 and 61 of the United States Code, distinguishable by whether they are granted at or after retirement, by whether or not the Veteran’s Administration ("VA") is involved, and whether the benefits are taxable. The same percentage rating has different dollar values from one to the other. P> One point worth stressing is that an argument under this provision must be made in the State that has jurisdiction to make the custody determination - a party in Nevada cannot argue to a Nevada court that the other party, in some other State, should not be allowed to proceed there because of some alleged unjustifiable conduct. SUP> As detailed above, the Legislature was told that the PERS plan was somehow unique due to the potential early retirement dates of its members, because it is a defined benefit (rather than defined contribution) sort of retirement plan that does not allow for a divided interest, but only a divided payment stream, and because the plan does not pay anything directly to a former spouse until the member actually retires. None of those bases withstand analysis.

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