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The Marren and Page Case List Arnold v Arnold
Learn more about The Marren and Page Case List Arnold v Arnold.
Custody tender years doctrineThis is where the complications and illogic come in. Presume three identical divorces on the same day. In the first case, the attorney, who knew almost nothing about military retirement benefits law, did not even know there was an SBP to allocate. The second knew that something had to be done, and so put a statement in the Order verifying that the former spouse was to be the beneficiary. The third not only knew to secure the right, but knew about the deemed election procedure, sent the required notice in, etc. It must not require payments to an alternate payee before the retirement of a member or the distribution to or withdrawal of contributions by a member. Arizona terminates community property accruals, for the most part, on the date of filing and service of a petition for divorce.2 There, on the same facts, the math would be 10.5 (years of marriage) ¡Â 20 (years of service) x .5 (spousal share) x $1,000 (pension payment) = $262.50. The husband claimed and the wife admitted that she had personal property that belonged to the husband prior to marriage. The district court ordered that "each party shall have their [sic] own personal property, which is in their [sic] possession, as their [sic] sole and separate property." The Supreme Court reversed. The Court noted while NRS 125.150(4) provided that the separate property of a spouse may be awarded to the other spouse for support, there is no indication that the district court intended to make such an award in this instance. The Court held that it was error for the district court to fail to order that the personal separate property of each party be returned, absent some finding that the property must be awarded as support. For a divorce occurring while a member is still on active duty, there are even more variables. First is the uncertainty that the member will retire at all. The precise length of service cannot be known - economic conditions, the defense budget, and world crises all could change the date of separation of a member by several years. Likewise, it is usually impossible to know the rank that such an active duty member will achieve. Each of these factors affects the "present value" assigned to the spousal share. Dicta relating to a frequently argued subject of dividing income during the pendency of a divorce. The wife argued that husband should have paid attorney’s fees to offset the monies the husband withdrew from the business for post separation expenditures. The Court noted that nothing in the record suggested an absolute entitlement on the part of the wife to any portion of the funds. The Supreme Court affirmed. The Court noted that the husband did not take "legal action" to enforce the provisions of the agreement. Instead, the Court found the husband filed a divorce action asking for division of property pursuant to the terms of the agreement. The Court further noted that before any hearing was held or evidence presented, the wife stipulated to the validity of the agreement. The Court held under those circumstances the wife could not have been considered a non-prevailing party for the purpose of awarding attorney’s fees under the agreement. The Court reaffirmed a prior holding that a party cannot be a prevailing party where the action has not proceeded to judgment, citing to Works v. Kuhn, 103 Nev. 65, 68, 732 P.2d 1373, 1375-76 (1987). 2. Clarification of emergency jurisdiction. There are several problems with the current emergency jurisdiction provision of the UCCJA ¡ì¡¡3(a)(3). First, the language of the UCCJA does not specify that emergency jurisdiction may be exercised only to protect the child on a temporary basis until the court with appropriate jurisdiction issues a permanent order. Some courts have interpreted the UCCJA language to so provide. Other courts, however, have held that there is no time limit on a custody determination based on emergency jurisdiction. Simultaneous proceedings and conflicting custody orders have resulted from these different interpretations. The Supreme Court reversed. In reversing, the Court held that the opinion of either spouse as to whether property is separate or community is of no weight whatever. Its character, in these respects, is determined by the time and manner in which it is acquired. Id. at 180. The USFSPA set up a federal mechanism for recognizing and enforcing State-court divisions of military retired pay, including definitions. One of these was of "disposable retired pay" (the sum that the military pay center could divide between spouses), which was defined as "the total monthly retired pay" minus certain sums, including sums deducted "as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38"6 or "equal to the amount of retired pay of the member under that chapter computed using the percentage of the member’s disability on the date when the member was retired" for a member retired under chapter 61.7 SUP> At any time, a military retiree can apply to the Veteran’s Administration to be evaluated for a "service-connected disability." If the evaluation shows such a disability, a rating is given between 10% and 100%, and "compensation" is paid monthly from the VA in accordance with a schedule giving a dollar sum corresponding to each 10% increase, plus certain additional awards for certain serious disabilities. Still further waivers of retired pay for VA disability pay can be given if the retiree has dependents (a spouse or children, or even dependent parents). It makes sense for a retiree to obtain a disability award, even with a dollar-for-dollar reduction in retired pay, because the disability awards are received tax-free.4 Between 1981 and 1989, McCarty, the USFSPA, and Mansell set up the framework within which all courts since then have struggled with issues relating to military retirement benefits and disability benefits, made much more confusing by the retroactive application of each later piece of the structure. In other words, the member essentially has an automatic, cost-free, survivorship benefit built into the law that automatically restores to him the full amount of the spouse’s share of the lifetime benefit if she should die before him. No matter what any court might order, if the former spouse dies first, the member not only continues to get his share of the benefits, but he will also get her share, for as long as he lives. One year and one day after the divorce, the third former spouse's rights would be secure. Thefirst former spouse could go back to court at any time (prior to the member's death) to get a valid order for SBP beneficiary status, and then serve the pay center. The second former spouse, however, whose rights were supposed to be "secured" by the judgment, would be entirely without a remedy (except a malpractice claim against the divorce attorney). Those responsible for the decades of delay and millions of dollars of wasted expenditure on NOMADS should be identified and publicly censured. And the Nevada Legislature should direct Welfare to actually collect correctly calculated interest and penalties on child support judgments, neither front-loading, nor later ignoring, statutory penalties. Welfare should be discouraged from continuing the gamesmanship of looking for legal cover with which to paper over its deficiencies, and discouraged from trying to amend the law to match their inaccurate and backward approach. When the Senate Judiciary Committee was informed of the various problems with the bill, that evening, instructions were given to have it quietly amended, essentially overnight and with no record other than the bill draft itself, but the Section was informed that it could not be killed entirely, apparently as a matter of comity from chamber to chamber. The worst portions of the bill were removed between June 28 and June 30, 1995; it was redirected to apply solely to PERS retirements, and was reprinted, passed, and returned to the Assembly, which concurred in the amendments without other record. 9)(A) A spouse or former spouse of a member or former member of the armed forces referred to in paragraph (2)(A), while receiving payments in accordance with this subsection, shall be entitled to receive medical and dental care, to use commissary and exchange stores, and to receive any other benefit that a spouse or a former spouse of a retired member of the armed forces is entitled to receive on the basis of being a spouse or former spouse, as the case may be, of a retired member of the armed forces in the same manner as if th e member or former member referred to in paragraph (2)(A) was entitle d to retired pay. In 1999, Congress again changed the rules,4 modifying what had become known as the "REDUX" plan to provide for an irrevocable choice of retirement plans to be made by that third group of members (who entered service after July 31, 1986), at their 15th year of service. Such members are given the choice of taking the same "High-3" retirement paid to those who entered service between September 8, 1980, and July 31, 1986, or to take the lowered REDUX benefits described above, plus a one-time lump-sum "Career Status Bonus" (CSB) of $30,000.00 payable at the 15-year mark.After the 1999 change, this option became known as the CSB/REDUX option. Citing Walsh3 and Carrell,4 this Court held that pension payments cannot be classified as temporary spousal support, because such support is subject to possible future modification. The Court found the lower court’s lowering of payments to reflect "the taxable consequences" of the payments was "arbitrary" and held that it violated the equal distribution presumption of NRS This is where the complications and illogic come in. Presume three identical divorces on the same day. In the first case, the attorney, who knew almost nothing about military retirement benefits law, did not even know there was an SBP to allocate. The second knew that something had to be done, and so put a statement in the Order verifying that the former spouse was to be the beneficiary. The third not only knew to secure the right, but knew about the deemed election procedure, sent the required notice in, etc. The Court concluded the property settlement was the product of an attorney-client relationship. The Court held that the creation of an attorney-client relationship was not precluded by the mere fact of a legally close or blood relationship. The Court further concluded that formality was not a necessary element in the creation of such a relationship, and the relationship may exist even though the attorney rendered his or her services gratuitously. The Court further held that such a fiduciary relationship was subject to losest scrutiny by the courts. The Court in citing to Davidson v. Streeter, 68 Nev. 427, 44041, 234 P.2d 793, 799 (1951), and Moore v. Rochester W. M. Co., 42 Nev. 164, 176, 174 P. 1017, 1020-21 (1918) reiterated that when an attorney deals with a client for the former’s benefit, the attorney must demonstrate by a higher standard of clear and satisfactory evidence that the transaction was fundamentally fair and free of professional overreaching. The Court noted that in case of doubt or ambiguity, a contract is construed against the party drafting it. Here, the husband failed to prove that wife "completely understood her property rights when she executed the agreement." The Court held that the wife’s disclaimer of interest in law practice was "unavailing" to him, where it was "made in an informational vacuum, without a full understanding of the rights she was relinquishing." Third, we conclude that the district court abused its discretion by denying Ms. Rivero's motion to modify child support without making any factual findings to justify its decision. We also clarify the circumstances under which a district court may modify a child support order. Under NRS Chapter 125B and our caselaw, a court has authority to modify a child support order upon a finding of a change in circumstances since the prior order. Also, in accordance with the Family Law Section's suggestion, we withdraw the Rivero formula for calculating child support. It has become increasingly important for domestic relations practitioners to learn all aspects of the relevant plans and the circumstances of the parties during divorce. Practitioners should develop appropriate valuations and proposed distributions for those assets during the divorce itself, with thought and written contingencies for the attendant tax, survivorship, and related issues. Only then can counsel intelligently negotiate - or litigate - their clients’ interests in such retirement benefits. The mother received primary custody of the three children. In June 1977, one of the parties’ children moved into the father’s home. In response, the father reduced the support payments by $250 per month for the months of June and July, and $474.50 from the payment August payment. In August 1977, the mother filed a motion for judgment for arrearages, requesting a judgment for the amounts withheld from the June and July payments. At the hearing, the father testified that he had in fact reduced the payments for June, July, and August. The father argued that he should be entitled to an "equitable setoff" of the amounts he actually expended on his son while he was living with him. The district court entered judgment for the arrears and held the father in contempt for reducing the payments. No QDRO is required for a TSP distribution; the TSP will honor any order that expressly relates to the TSP account of the participant, has a clearly determinable entitlement to be paid, and provides for payment to some person other than the TSP participant. This includes payments directly to the attorney for the former spouse. Attorneys drafting TSP orders should note that plan balances are always calculated on the last day of the month. iii) Third, the amount of the BCSO is subtracted from the adjusted BCSO. The difference is the child-rearing expenses associated with the ARP's additional parenting time. In the example above, the additional childrearing expenses associated with the ninety-four (94) days of parenting time would be thirty dollars and fourteen cents ($30.14) [$1030.14 - $1000]. In the meantime, courts elsewhere have been giving the matter some thought, and a distinction thus far unseen in Nevada appears to be gaining a majority consensus. Specifically, the distinction between "enterprise" and "personal" goodwill - the former of which is considered divisible marital property, and the latter of which is not. The Court first concluded that Norris was inapplicable to the case because, in Norris, the motion to modify was filed after the parties’ child turned 18. Because NRS 125.510 was amended after Norris to allow for child support to continue until a child either completed high school or turned 19, the district court erred by ruling that it lacked jurisdiction to modify the support obligation. The Court also distinguished the case from Day v. Day, 82 Nev. 317, 417 P.2d 914 (1966) concerning retroactive modification of a child support obligation. The Court held that it was not retroactive modification of child support to go back to the date of the filing of the motion for modification. The Court stated that " . . . the court may make the modification effective either as of the time of filing the petition or as of the date of the decree of modification, or as a time in between, but it may not modify the decree retroactively." Id. at 532. Even where disability payments are considered "exempt," the U.S. Supreme Court has ruled that a member can be imprisoned on a contempt charge for failing to pay child support, despite his claim that payments could be made only from his VA disability award, which was exempt from execution.1 The holding has been extended to alimony cases as well, on the basis of the holding in Rose that: "It is clear veteran’s benefits are not solely for the benefit of the veteran, but for his family as well."2 P> During the same hearing, the district court also addressed the custody timeshare arrangement because the parties had been unable to reach an agreement in mediation. Although the divorce decree provided Ms. Rivero with custody five days each week and Mr. Rivero with custody two days each week, the district court concluded that the parties actually intended an equal timeshare. The district court noted that it was "just trying to find a middle ground" between what the divorce decree provided and what the parties actually wanted regarding a custody timeshare. Further, the court found that the decree's order for joint physical custody was inconsistent with the decree's timeshare arrangement because the decree's five-day, two-day timeshare did not constitute joint physical custody. In its order, the district court concluded that the parties intended joint physical custody and ordered an equal timeshare. der the federal Defense of Marriage Act (DOMA), the Federal Government is barred from providing eligibility for health care benefits, pension benefits, and survivorship benefits under Federal employment. DOMA has been challenged as unconstitutional in the 9th Circuit, but OPM - the Federal Governments Human Resources Department - has held strong that they can’t comply with the Court’s Order. Obviously, there will be further developments as this matter moves through the various courts, and in Congress, and changes could (and probably will) happen quickly. P> NRS 125.155, enacted in 1995, establishes a set of special rules applicable only to PERS retirement benefits in divorce. Officers of the Family Law Section did not discover the proposal until nearly the last day of the legislative session, which in its original form would have significantly altered several spousal protections built into Nevada’s community property laws.5 It was quickly altered, but even the remaining portion contains provisions that either appear to run afoul of Nevada Supreme Court holdings,6 or otherwise appear to raise equal protection issues, since they treat participants in PERS differently than participants in all other pension plans. B> The Nevada child support guidelines were initially derived from the Wisconsin Guidelines, making Nevada one of half a dozen "percentage of income" guideline states. 18 This theoretical model presumes a contribution from the custodial parent, and calculates a contribution from the non-custodian as a percentage of income to support the child in the primary household. While application of such a formula provides consistent and predictable outcomes, thus reducing litigation, strict application of the formula may cause inequity under the unique facts and circumstances of some cases. Thus, in order to balance adequacy in every case versus consistency and predictability, while keeping the formula simple, the Nevada statutory guidelines evolved to combine both a formulaic approach, 19 and discretionary deviation factors that can be tailored to the facts of certain cases, as necessary.20 B> Discovery conducted in some Hague Convention cases reveals a number of actionable tort claims against the kidnaper, going to the kidnap itself (and any torts committed during its accomplishment, such as assault), the resulting deprivation of companionship of a child, infliction of emotional distress, etc. In the experience of the author, circumstances amounting to independently compensable wrongs are the exception, but a simple fee award in a kidnap may fall far short of actually compensating the left-behind parent for all of the economic and other damages suffered, even when such an award can actually be collected. This Court’s resolution of this appeal should include the direction that when dividing retirement benefits, absent findings of a compelling reason under NRS 125.150(1)(b) to do otherwise, if only one survivorship interest requires the payment of a premium, that premium cost should presumptively be divided between the spouses as part of the equal division of their property. The primary purpose of the USFSPA was to define state court jurisdiction to consider and use military retired pay in fixing the property and support rights of the parties to a divorce, dissolution, annulment, or legal separation.5 By fits and starts, every State in the Union eventually permitted military retirement benefits to be divided as property in at least some circumstances. You can find The Marren and Page Case List Arnold v Arnold The Marren and Page Case List First National Bank v Wolff Lam v Lam Canul v Public Employees Retirement System PERS Benefits Section I Subsection A Court Ordered Divisions of the TSP Survivorship Benefits for the TSP The Marren and Page Case List Kerley v Kerley and Sprenger v Sprenger If As When a Monthly Annuity The Ubiquitous Time Rule More Flavors than You Might Expect Legal Separation Allowed Time to distinguish enterprise and personal goodwill Las Vegas public employees retirement lawyer The Service Members Civil Relief Act of 2003 Coping with COLAs Nevada QDRO lawyer Introduction to Nevada law of relocation move cases The Marren and Page Case List Arnold v Arnold available at lvfamilylawyer.com by clicking above. Site Map Exhibits on Rivero Exhibit Three Section Four Las Vegas FERS expert lawyer The Marren and Page Case List Bemis v Estate of Bemis Siragusa v Brown QDRO checkup Rivero v Rivero Opinion Subsection Three An Introduction to Pensions in Nevada Divorce Law Conclusion The Marren and Page Case List Johnson v Johnson Pereira v Pereira Van Camp |