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Rivero v Rivero Opinion Pickerings Discussion
Learn more about Rivero v Rivero Opinion Pickerings Discussion.
The formulaic approach is inconsistent with Nevada lawIt is a well-established principle of community property law that the labor and skills of a spouse are considered to be a community asset, and that income generated during the marriage from such labor and skills is also community property.8 Prior to the marriage, the husband acquired two A & W restaurants. The businesses were incorporated and all of the assets for the restaurants were transferred into it. Subsequent to the marriage, they obtained two more drive ins which was done primarily with the cash flow from the two premarital restaurants. The opinion included few other facts. Three rules must be balanced in determining which court hears the claims. First is that torts and contract disputes are not in the enumerated exclusive jurisdiction of the Family Court, and therefore normally fall into the "general" jurisdiction of the Civil/Criminal Division. The Court saw the issue as whether it should affirm the trial judge who found the father fit but did not rule either way as to the fitness of the mother and gave custody to the father without specifically finding that the custody award was in the best interests of the children citing to Harris v. Harris, 84 Nev. 294, 439 P.2d 673 (1968). The Court noted that NRS 125.140 (now NRS 125.510) provided it was the policy of Nevada to award custody as was in their best interests. The Court eventually returned custody to the mother under the now overruled tender years presumption. The following paragraph provides that if a member dies before the Alternate Payee begins receiving benefits and a refund of the contribution account is payable, the Alternate Payee will be eligible to receive the specified share of the refund (NOTE: this only applies if the Member dies before retirement without a spouse or eligible survivors under NRS 286.671-286.6791). While slightly off-topic, one recurring error bears additional mention here. The State issuing a spousal support order is the only State that can ever modify that spousal support award, even if no one still remains in the issuing State, and even if all parties have now moved to the same other State.13 So lawyers should not file, and judges should not entertain, motions to modify alimony orders entered elsewhere. The matter of "deemed elections" and former spouse eligibility for SBP payments presents the single biggest malpractice trap in this area, at least when it is attempted without the member’s cooperation. including those exercised outside the terms of the currently effective order. This may happen by agreement, or when one parent voluntarily foregoes time granted in the order. Do not consider overnights exercised in violation of an order. The district court ordered the father to pay support of $1,800 per month and to pay educational costs including tuition. The Supreme Court affirmed. The Court noted that a district court has limited discretion to deviate from child support guidelines citing to Anastassatos v. Anastassatos, 112 Nev. 317, 320, 913 P.2d 652, 654 (1996). The Court also noted that any deviation from the formula set forth must be based upon the facts set out in NRS 125.080(9). The Court further noted that "[g]reater weight ... must be given to the standard ofliving and circumstances of each parent, their earning capacities and the 'relative financial means of parents' than to any of the other factors," citing to Barbagallo v. Barbagallo, 105 Nev. 546,551,779 P.2d 532, 536 (1989). The Court also approvingly cited to Herz v. Gabler-Herz, 107 Nev. 117,808 P.2d I (1991), where the district court found that the father had vastly greater wealth than the mother and noted that the district court did not abuse its discretion in ordering an upward departure from the statutory formula based on a factor other than increased need. It is worth pausing for a moment to clarify that any former spouse who will be the recipient of retirement benefit payments if her former spouse lives, but will not get such money if he dies, definitionally has an "insurable interest" in the life of the member (this is true for military or non-military cases). The matter is one of fact, not a matter of discretion, award, or debate.2 Anecdotal accounts indicate that some insurers are reluctant to issue private policies of insurance without some court order indicating that the intended beneficiary (the former spouse) is entitled to insure the life of the other party. Attorneys for former spouses should therefore make a point of reciting the fact of such an interest on the face of the decree. Nothing in this section shall be construed to relieve a member of liability for the payment of alimony, child support, or other payments required by a court order on the grounds that payments made out of disposable retired pay under this section have been made in the maximum amount permitted under paragraph (1) or subparagraph (B) of paragraph (4). Any such unsatisfied obligation of a member may be enforced by any means available under law other than the means provided SUP> A review of some hypothetical calculations illustrates the effects of this proposal.2 Under the brackets now in effect, a minority time-share parent earning $10,000 per month would have a percentage-of-income obligation for a single child (18%) of $1,800, but would pay the majority time-share parent $785 under the presumptive maximum for that income bracket. If the majority time-share parent made $5,000 per month, that parent¡¯s income would be invisible to any normal guideline support analysis, because in a Wisconsin-guideline State, a percentage of income expended by the majority time-share parent for the benefit of the child is presumed but not calculated. There were two actions. In the first action, the wife sought a divorce. She claimed there was no community property. A divorce was obtained by default. The decree was set aside for fraud. The husband then filed an answer and made his own claim for divorce asking for a division of community property. When the husband filed the amended cross complaint, he alleged that he was married at the time he entered into the marriage ceremony with Ethel M. Wolford, although at that time he thought his wife was dead. The husband alleged that since the marriage, the parties had jointly acquired one lot with a house and household furnishings therein. The husband requested that be awarded an annulment and that he receive one half of the property. The district court granted the annulment and divided the property in half. Neither party asked for a partition of the property. The husband then started a second action requesting a partition of the property. The word "acquired" embraces wages, salaries, earnings, or other property acquired through the toil or talent or other productive faculty of either spouse. And judges should consciously consider their jurisdiction to proceed before wading into the merits of cases, with sufficient knowledge of the jurisdictional rules both to understand what they should not do, and to ignore legally fatuous arguments based on indefensible attacks on their legitimate jurisdiction. If the agreed facts resolve a jurisdictional question, one way or another, the merits can be addressed; if not, the court should focus on convening such proceedings as are necessary to make the factual determinations that permit the jurisdictional call to be made promptly, economically, and correctly. B> The UCCJA was a project of the National Conference of Commissioners on Uniform State Laws (NCCUSL).1 Nevada adopted the UCCJA and incorporated it into NRS 125A.050 in 1979; its jurisdictional criteria applied to all custody-related proceedings, including adoption, guardianship, parental termination, visitation disputes, and child neglect and dependency proceedings. Several State courts have held that the interest of a former spouse in retired pay is realized at vesting,6 theoretically entitling the spouse to collect a portion of what the member could get at that time irrespective of whether the member actually retires.7 As phrased by the California court in Luciano: "The employee spouse cannot by election defeat the nonemployee spouse¡¯s interest in the community property by relying on a condition within the employee spouse¡¯s control."1 The practitioner should distinguish "benefits" from "value," and distinguish both of those terms from "contributions." The "value" of a pension interest may be expressed by valuation experts as the cost, at any given time, of acquiring an annuity that would pay equivalent benefits over the anticipated payout period. "Benefits," on the other hand, are what the retiree will actually receive, usually phrased as a right to receive certain sums at a certain date, or on a certain schedule. "Contributions," whether from the employee, the employer, or both, do not necessarily have any correspondence to the benefits of a plan, or its value at any given time. Failure to perceive these distinctions can lead to gross over- or under-valuation of the assets at issue. It is a well-established principle of community property law that the labor and skills of a spouse are considered to be a community asset, and that income generated during the marriage from such labor and skills is also community property.8 The Arizona Court of Appeals was more direct in In re Gaddis,4 when it held that divorce courts were only required to find reductions in military pay benefitting the member to bar compensation to the spouse if those reductions in retired pay existed when the award to the former spouse was made. The court saw the proscription of Mansell - that the USFSPA "does not grant state courts the power to treat as property divisible upon divorce military retired pay that has been waived to receive veterans’ disability payments" - as a call to essentially take a snapshot when the award to the spouse is made. If sums of disposable retired pay had been waived up to that point, they were not divisible. Where a member sought a post-divorce reduction in retired pay, however, his efforts at re-characterization were seen as attempting a "de facto modification" of a final property award, which state law did not permit.5 The Court noted that the deed contained no recital that the property was from that day forward to be her separate estate. The parties resided on the premises from the time of marriage to death. The Court first noted that from the time the property was deeded to the husband until the time he deeded to the wife the property was presumptively community property citing to In re Wilson’s Estate, 56 Nev. 353, 53 P.2d 339 (1936); , 49 Nev. 299, 245 P. Jones v. Edwards, 292 (1926), and Milisich v. Hillhouse, 48 Nev. 166, 228 P.307 (1924). The Court then noted that by the deed of January 1924, the property became, presumptively, the separate property of the wife. The Court noted the presumption was rebuttable. The Court additionally noted that the district court found that the property was paid for with community funds, and that it was community property at the time of the wife’s death. The Court found that there was ample evidence in the record to support those findings and concluded that any presumption that the premises were separate property was satisfactorily overcome. The fourth scenario imposes the SBP premium payment entirely on the member, by increasing the spousal share to 26.7380%.2 The former spouse remains over-secured, as above. The entire premium falls to the member, who still has the free survivorship on the spouse’s life. Shifting the premium in this way is analogous to making a spousal support award. 65279;However, once a valid court order is issued requiring coverage, the one year period begins to run, and any subsequent court order that merely reiterates, restates, or confirms the right of coverage as SBP beneficiary cannot be used to start a new one-year election period. The wife gave the husband only 24 hours notice prior to a prove-up hearing on a default decree. The husband’s attorney entered a special appearance protesting the lack of sufficient notice. The district court proceeded forward and entered the judgment sought by the wife. The Supreme Court reversed and held that when a defendant has made an appearance in an action, the failure to give notice prescribed by NRCP 55(b)(2) rendered a subsequent default judgment void. Accordingly, the district court should have set aside the judgment. The Court further held that for NRCP 55(b)(2) purposes, a formal appearance in the case was not necessary. a) During the pendency of the action, at the final hearing or at any time thereafter during the minority of any of the children of the marriage, make such an order for the custody, care, education, maintenance and support of the minor children as appears in their best interest . . . . To illustrate, Joe Sixpack, earning $3,500 per month, has a theoretical child support obligation of 18% of monthly gross income - $630 (for one child). As noted in the 1992 Committee Report, the theoretical child support obligation of 18% is already on the average to low side nationally. But the "presumptive maximum" lowers that sum to $580, even if Joe's income goes up by another 20 percent! The second possibility stated by the majority for finding jurisdiction in the family court ¨C that the couple "otherwise qualify as a familial unit" ¨C may have created even worse problems. That terminology is unknown to the prior case law, and appears on its face to be contrary to the standard slowly being evolved in this subject area. Mosley erroneously indicates that the policy of the State of Nevada "encourages both parents to share equally parental responsibilities after separation."6 That statement does not comport with the actual policy of our State, as codified in NRS 125.460, which encourages "parents to share the rights and responsibilities of child rearing." (Emphasis added.) It would be a huge stretch to interpret an apparent misstatement in a footnote to mean that the words "shared" and "equal" are synonymous. They are not. The Supreme Court reversed. The Court began by reciting the Murphy standard. The Court noted that a district court’s custody decision will not be disturbed unless there has been a clear abuse of discretion citing to Primm v. Lopes, 109 Nev. 502, 504, 853 P.2d 103, 104 (1993). The Court further noted that it must be satisfied that the district court’s determination was made for appropriate reasons citing to Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993). The Court also noted that it would not set aside a district court’s factual determinations if they are supported by substantial evidence citing to Primm, 109 Nev. at 506, 853 P.2d at 105. The Court found that substantial evidence did not support the district court’s conclusion that the children’s welfare would be substantially enhanced by changing custody. The Court noted while it was probably not advisable to leave a child home alone who is nearly recovered from an illness, it concluded that a single incident was an insufficient basis on which to premise a change of custody under the second prong of the Murphy standard. The Court also noted that the father was an active involved parent, had a stable job, and was responsive to the children’s needs. The Court remanded for a reconsideration of the second prong of the Murphy standard. You can find Rivero v Rivero Opinion Pickerings Discussion The Marren and Page Case List Trubenbach v Amstadter Introduction to Nevada law of community property and debt division The Marren and Page Case List URESA jurisdiction Rivero v Rivero Opinion Subsection Two Rivero v Rivero Opinion Pickerings Conclusion An Introduction to Pension in Nevada Divorce Law Section III Subsection C Nevada UCCJEA expert Termination of Parental Rights Divorcing the Military and Serving the Civil Service Section II Subsection Rivero v Rivero Opinion Pickerings Discussion available at lvfamilylawyer.com by clicking above. Site Map Checklist for Military Retirement Benefits Cases family law jurisdiction Carson City The Marren and Page Case List In the Matter of Parental Rights as to K D L Landreth and cohabitant relationship divisions Divison of Military Retirement Benefits In Divorce Section IV Valuation of Termination of Parental Rights The Marren and Page Case List Reel v Harrison Reciprocal Links: Rivero v Rivero Opinion Pickerings Discussion Rivero v Rivero Opinion Pickerings Discussion Rivero v Rivero Opinion Pickerings Discussion Rivero v Rivero Opinion Pickerings Discussion |