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The Marren and Page Case List Cosner v Cosner
Learn more about The Marren and Page Case List Cosner v Cosner.
Custody hearing mastersCases consolidated for disposition only ("Gandee" and "Montelione"). In Gandee, the father wanted to move to Oregon with two daughters (ages four and five, with elder physically disabled) to accept a promotion. The mother refused consent to move, and the father filed a move motion per NRS 125A.350. The district court found that only actual advantage to move was a "few thousand dollars" that would "be eaten up on forfeited child support or transportation costs." In the second case, the district court denied a request to relocate primarily based on the fact the non-primary parent had custody of the child at issue two days each week in addition to holiday and school recess time. The Supreme Court reversed both. If the marriage overlapped service by less than ten years, the right still exists, but the spouse has to obtain the monthly payments from the retired member rather than directly from the military pay center. The mother received primary custody and support of $450 per month. The mother consulted a lawyer, and upon discovering NRS 125B.070 and the 18 percent formula moved for an increase, alleging nonconformity with statute, and based on the father's $6,000 per month income. The district court increased support to $1,000. b) When the most recent support order deviated based on an agreement to use a number of overnights that differed from actual practice, absent some other change warranting modification, credible evidence of changed practices only includes an order Changing the custody or parenting time schedule. The 2001 amendment to UIFSA § 611 changed "remains the residence" to "is the residence" to make it clear the original intent of the drafters that when a party returns to the original issuing state and not other state has modified the order, then the original issuing state’s continuing, exclusive jurisdiction is restored.8 There may be other alternatives, such as substituted service at the member’s "dwelling ro usual place of abode," or even service by publication or by mail if allowed in the rules of the jurisdiction, but these are very State-specific, and their suitability may very well vary with the circumstances. The parties each had substantial separate property interests when they married, and had children from prior marriages. A complaint for divorce was filed January 1984. The character and value of much of the property owned by the parties was established by agreement. The remaining property was divided by the district court. The wife appealed claiming the district court erred by refusing to award attorneys’ fees to her in lieu of reimbursing the community for the husband’s expenditures of community property income during the parties’ separation. The final version of the bill, enacted as NRS 125.155, applies solely to PERS. Section 1(a) requires any divorce order to be based on the "time rule" and Section 1(b) prohibits basing a division "upon any estimated increase" based on post-marital service. Section two states that the divorce court may require that benefits for a spouse not be paid until the participant actually retires, and may safeguard the spousal share, if it does so order, by way of a bond, life insurance, or other security, or (by agreement of the parties only) by increase in the spousal share to compensate for the delay in payments. Section three provides that a spousal share ordered under that statute terminates upon death of either party unless a retirement option providing for survivorship benefits is agreed or ordered, although the phrasing is confusing and appears garbled. In 1995, at the urging of the State Bar of Nevada Family Law Section, the Nevada Supreme Court made compliance with the standards of conduct embodied in the 1991 Bounds an aspirational goal of every lawyer and pro se litigant involved in family law cases in Clark County, by adoption of EDCR 5.04. SUP> This is one of those rules that has not proven problematic to make gender neutral, and in modern property trials, has evolved to the standard approach of placing the burden on the spouse asserting a separate property interest to prove that it exists, with the result being that the property is found to be community if the proof is insufficient, starting with NRS 123.220. Otherwise, Nevada case law appears unremarkable in that, generally, the burden is on the party going forward to make out a prima facie case for any legal proposition asserted. Where the military member is still on active duty, things are more complicated. An order may be obtained specifying that the military pay center, as opposed to the member personally, is required to pay a child support order,2 including an award of arrearages.3 It seems reasonable that an order establishing alimony could be couched as terminating or reducing at the date predicted for work to cease (and alimony payable to be adjusted accordingly), with the burden being explicitly placed on one side or the other to file a motion if the expectation was for some reason not fulfilled. These omission are unfortunate, as is the lack of any actual practical analysis and guidance for attorneys seeking the simplest routes to enforce such orders as they happen to have. For example, there is no known posted guidance of the practicalities of trying to enforce both child support and a property award against a military member when the size of the required monthly payment exceeds 50% of the disposable retired pay that can be reached by direction application to DFAS. First, their retirement benefits multiplier was reduced by one percentage point for each full year less than 30 years of service.1 Under this plan, at age 62, the reduction is removed and the retired pay multiplier is restored to 2.5% per year, yielding the same percentage payable under the earlier system. At the time of the marriage, the wife was working as a receptionist for a doctor’s office and the husband was managing his automobile agency. The wife quit working shortly after the marriage. The husband received $3,000 per month, plus a bonus at the end of each year. The automobile agency was sold in 1966 for $5 dollars, plus the assumption by the purchaser of nearly a million dollars in liabilities. The husband also inherited $750,000 in stock from his father’s estate. In June 1962, the husband purchased a lot for $10,000. He testified that this money came from the sale of stock which he inherited and he took title solely in his name. A loan of $42,400 was obtained for the purpose of constructing a house on the property, which was secured by a deed of trust on the property signed by both husband and wife. The house and lot were transferred by deed from the husband to the wife in October 1965. The district court found that the property had been transferred to the wife avoid its seizure by creditors, and that the wife had orally agreed to hold it in trust for husband and to reconvey it at his request. The district court then went on to find this property to be the sole and separate property of the husband. SUP> The Assembly, however, added a provision indicating that the legislation would only affect cases filed on or after the date of enactment. The "interested parties" turned their efforts to trying to eliminate that provision of the bill,6 with Ms. Cooney stating that the time-rule was adopted from California, but that it "in reality is not well-suited to Nevada."7 Having clarified the circumstances under which a district court may modify a child support order, we note that this case is an example of the immediate and repetitive motions that can plague the district court, even after the parties have stipulated to child support. Less than two months after the district court entered the parties' divorce decree, in which they agreed that neither party would receive child support, Ms. Rivero moved the court for child support. Then she did so again, 11 months later. Such constant relitigation of a court order, especially one to which the parties stipulate, is pointless absent a change in the circumstances underlying the initial order. Statutory and case law throughout the country now recognizes pension benefits as marital property with near uniformity. Stated rationales for that recognition include that the benefits accrued during marriage, that income during marriage was reduced in exchange for the deferred pension benefits, and that the choice was made to forego possible alternative employment which would have paid more in current wages, in order to have the pension. The Court applied Hill for judicial economy and because failure to do so might infringe on the due process rights of juveniles. The Court also ruled out an oral application for continuance per Bustos v. Sheriff, Clark County, 87 Nev. 622, 491 P.2d 1279 (1971) in the case at bar where the district attorney’s office had two weeks to comply with Hill in writing. Anecdotal accounts, however, indicate that some trial courts continue to be misled into ruling to the contrary, based upon an overly-expansive reading of Mansell and misplaced concerns about violating the Supremacy Clause, or simply by seeing the word "disability" and reacting without any sort of adequate inquiry into what the law is, or why. The Supreme Court reversed. The Court saw the question principally on appeal as whether by entering an appearance for child support and custody that appearance supported also the division of property that had not been litigated. The Court noted that a judgment and decree of divorce could not be modified, vacated or set aside except upon the terms or reasons set by rules or statute. The Court saw that pertinent statute in this case was NRS 125.140(2) which allowed the reopening of a judgment and decree of divorce for matters relating to children of a marriage at any time. The Court concluded that the same was not true for property division. The Court noted that neither the defendant nor the property was before the court at the original trial and that no provision for property division could have then been made. The Court held that the issue of property was not adjudicated at the trial, therefore, could not be the subject of a subsequent modification proceeding without an express stipulation. The Court saw this as the net effect of NRS 125.150(5) and cited to Schmutzer v. Schmutzer, 76 Nev. 123, 350 P.2d 142 (1960) and Finley v. Finley, 65 Nev. 113, 118, 189 P.2d 334 (1948). Because there was no stipulation respecting the division of property, the appearance of the husband was limited only to matters concerning the children. After the mediation, but before the next district court hearing, Ms. Rivero served a subpoena on Mr. Rivero's employer for his employment records. The district court granted Mr. Rivero's motion to quash the subpoena, explaining that under the divorce decree, each party had joint physical custody, neither party owed child support, and the only pending issue was whether the parties could agree on a timeshare plan. Ms. Rivero then argued that the district court should reopen the child support issue and allow relevant discovery. iii) pay to that member the amount which is equal to the amount of that member's disposable retired pay(less any amount paid during such month pursuant to legal process served under section 459 of the Social Security Act(42 U.S.C. 659)and any amount paid during such month pursuant to court orders effectively served under this section, other than such conflicting court orders) minus-- Cases consolidated for disposition only ("Gandee" and "Montelione"). In Gandee, the father wanted to move to Oregon with two daughters (ages four and five, with elder physically disabled) to accept a promotion. The mother refused consent to move, and the father filed a move motion per NRS 125A.350. The district court found that only actual advantage to move was a "few thousand dollars" that would "be eaten up on forfeited child support or transportation costs." In the second case, the district court denied a request to relocate primarily based on the fact the non-primary parent had custody of the child at issue two days each week in addition to holiday and school recess time. The Supreme Court reversed both. Notably, the rules governing support and custody operate independently of one another. The courts of this State might be called upon to enforce a child support obligation against someone found here, or filing here, while having no jurisdiction over custody matters.2 The obligor parent can always be sued for child support where that parent lives,3 because child support is set by the court with personal jurisdiction over the paying parent. Hermanson v. Hermanson, 110 Nev. 1400, 887 P.2d 1241 (1994) The parties married while the wife was pregnant. The wife claimed that she told him the father was another man; the husband admitted that wife never told him that he was the father of the unborn child. The parties cohabited intermittently until separating when the child was three. The wife relocated to Iowa, where she raised the child alone, was on welfare, and attended school. The parties discussed reconciliation in 1990, but the attempt, in Las Vegas, lasted only 30 days. The wife filed for divorce. The husband filed a motion requesting that the child be named his "defacto child"; the wife opposed and requested blood tests. A referee heard the motion and recommended an order that the case be found "similar to Frye v. Frye, 103 Nev. 301, 738 P.2d 505 (1987) based on the conduct of the parties," and that the husband "should be declared the real father." The district court sustained the wife’s objection and ordered blood tests, which conclusively proved the husband’s non-paternity of the child. On return, however, the district court found that the wife had failed to rebut a conclusive presumption of California Evidence Code section 621, and further ruled that the wife was equitably estopped from denying the husband’s paternity. In other words, the overwhelming weight of authority indicates that it makes no difference how, or whythe retiree diverts money to himself that had been awarded to the former spouse in a final, unappealed decree; his act of doing so is a violation of the Decree every month he takes and keeps sums awarded to the former spouse, and requires an order of reimbursement. Before June, 1981, the treatment of military retirement benefits upon divorce varied widely from State to State. Many courts in the 1960s and 1970s did not acknowledge such benefits as property, characterizing them as either the sole property of the individual in which they were titled or "mere expectancies."1 Spouses were seldom awarded an interest in military retirement benefits, as such, upon divorce. nbsp;After the report was written, and before the hearing in question, the child stomped at another child’s leg at the ROCK program and exhibited violent behavior toward his foster mother. The social worker called the physician who had been treating the child since February 2000, and requested an emergency evaluation. The recommendation was made that the child entered the Spring Mountain psychiatric facility until his behavior stabilized. At the hearing, DCFS advised the district court about the child’s commitment. The district court orally ordered the DCFS to remove the child from the facility. The DCFS did not release the child and no stay of the order was requested. The child’s attorney requested an order to show cause be issued against the DCFS. An order was issued and at the hearing, DCFS explained that it understood the district court’s oral order to mean that it should release the child as soon as possible but not immediately. The district court indicated that it meant immediate release. The child was still not released. The court orally held the DCFS in contempt and fined DCFS $500 per day for every day the child remained at the facility. The DCFS filed for a writ of mandamus. B> Casas v. Thompson was a clear restatement of the law regarding military retirement benefits division as it had evolved in California prior to 1988, which was followed by several other states. It was a partition case ten years after entry of a divorce decree that had not mentioned the retirement. Ultimately, the spouse was granted partition of the omitted retirement from the date she filed her petition, but no arrears. The Court of Appeals affirmed with a few modifications not important here." SUP> As noted above, a small minority of States, including Texas, have adopted this approach, sometimes in cases that do not appear to have contemplated the actual mathematical impact of the decision reached.5 This minority approach undervalues the spousal interest by giving no compensation for deferred receipt, and also contains a logic problem, at least in a community property analysis, of treating similarly situated persons differently. The Arizona Court of Appeals was more direct in In re Gaddis,7 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.8 This creates a terrible drafting (and calculation) headache for the lawyers, when the divorce occurs while the member is still in service. If the member remains in service for, say, ten years past the eligibility date for retirement, the former spouse should receive the hypothetical COLAs at the beginning of years four, five, and six (2%), seven, eight, and nine (3%), and ten (3.5%), and would have others coming each year thereafter in accordance with the schedule. The member, however, would not receive his first, smallest COLA until four years after his actual retirement. This leads to both practical and mathematical difficulties. In order to set up the best Nevada spousal support, maintenance, alimony and child visitation issues, call on our Nevada separate maintenance expert for help. When you work with our Nevada separate maintenance expert, you will find we are here for your benefit. While common sense and legal analysis do not always necessarily coincide, that analysis is also the reasonable analysis. Dissolution of a cohabitant relationship is far more similar to the breakdown of a marriage than it is to a contract dispute between strangers. As an Illinois court once put it, a property-accrual agreement between cohabitants is "not the kind of arm¡¯s length bargain envisioned by traditional contract principles, but an intimate arrangement of a fundamentally different kind." Hewitt v. Hewitt, 394 N.E.2d 1204 (Ill. 1979). The same year, in Carrell v. Carrell,2 this Court reversed a district court decree characterizing a portion of the husband’s share of pensions as "spousal support" instead of property. Citing Walsh, supra, and NRS 125.150(5)&(7), the Court explained that retirement benefits earned during marriage are community property, and so are not subject to future modifications, whereas spousal support can be modified upon a showing of changed circumstances, remarriage, or death. The Supreme Court affirmed. The Court held that a de Jacto marriage interpretation could not be sustained in a state the did not recognize common law marriage. The Court concluded that the word "remarriage" was easily understood and is not ambiguous. The husband's request to terminate support was denied. You can find The Marren and Page Case List Cosner v Cosner Custody Visitation and Temporary Support Issues Value Altering Possibilities to Anticipate and Plan For in a Military Retir Hague Convention Basics Las Vegas military retirement expert lawyer The Marren and Page Case List Aldabe v Aldabe Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar The Special Problem of Divorce Decrees Entered in Foreign Countries as to D Legal Authority For Use in Requesting Fees in a Pro Bono Case Divison of Military Retirement Benefits In Divorce Section V Subsection C Rivero v Rivero Opinion IV A Subsection Two Checklist for Military Retirement Benefits Cases The Tail Wags the Dog Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Back to Basics Overview of Community Property Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar The Marren and Page Case List Cosner v Cosner available at lvfamilylawyer.com by clicking above. 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