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The Marren and Page Case List Dimick v Dimick
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ConveyancesThe Supreme Court affirmed the refusal. The Court noted that NRS 125.150(3) provided that, "´[w]hether or not application for suit money has been made under the provisions of NRS 125.040, the court may award a reasonable attorney’s fee to either party to an action for divorce if those fees are in issue under the pleadings.’" The Court held that "[t]he award of attorney’s fees in divorce actions is made neither automatic nor compulsory by this provision, but is within the sound discretion of the district court," citing to Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103 (1973). Id. at 905. ii) Second, the variable multiplier calculated in subpart (i) above is applied to the amount of the parties' total BCSO, which results in an adjusted BCSO. For example, application of the variable multiplier determined above for ninety-four (94) days of parenting time to a BCSO of one thousand dollars ($1000) would result in an adjusted BCSO of one thousand thirty dollars and fourteen cents ($1030.14) [$1000 x 1.0301366]. Bankruptcy poses many problems in this area. When a member chooses to try to defeat the divorce court’s order in bankruptcy court, the only guarantee is greater expenses for both parties and further litigation. 65279;Where the divorce precedes the time ofthe 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. Neither Truax nor Mosley defines the term "joint physical custody," nor do they provide clear, cogent, and unambiguous analysis or discussion of the meaning of the terms at issue here. 65279;In 2001, the Arizona Court of Appeals again dealt with the contract theory, federal law supremacy assertion, and claims of "involuntariness" that appeared in several of the cases discussed above, in Danielson v. Evans. Because the divorce at issue occurred after Mansell, the prevailing former spouse in Danielson was held to the "higher standard of clarity" in the underlying decree (discussed above) to protect her interests. 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. Specifically, the Alaska joint-custody formula is triggered when the percentage of time (usually, but not always, to be defined as overnights of 110 or more) reaches 30% of custodial time. Trial courts are then to examine the details of the visitation schedule, and the financial disclosures, to determine whether expenses relating to the child divide in the same manner as the time spent with the child are divided. If so, normal guideline support is expanded by 50% to account for "redundant payments" in the two households, before application of Alaska’s deviation factors. In 1999, the parties stipulated to an increase in child support from $3,000 to $4,000, to take effect in 2001, and for the father to pay for private school. In 2000, custody was changed to joint physical, but the support terms remained unchanged, and were stipulated to be "nonmodifiable" unless the mother tried to relocate out of Nevada with the children. The parties entered into a property settlement agreement whereby the father promised to make $200 per month child support payments. The property settlement agreement was adopted by the court and incorporated as a part of the judgment and decree. The father failed to make timely payments. The father was later held in contempt for that failure. The father then made arrangements for making current payments and paying the arrears. The district court then purged the contempt. The father went into contempt again and another order to show cause was issued. The father filed an affidavit setting forth his debts, and his financial difficulties. The father also filed a motion to modify the judgment and decree of divorce asking for a reduction in child support payments. The court refused to modify the payments. The Supreme Court affirmed the refusal. The Court noted that NRS 125.150(3) provided that, "´[w]hether or not application for suit money has been made under the provisions of NRS 125.040, the court may award a reasonable attorney’s fee to either party to an action for divorce if those fees are in issue under the pleadings.’" The Court held that "[t]he award of attorney’s fees in divorce actions is made neither automatic nor compulsory by this provision, but is within the sound discretion of the district court," citing to Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103 (1973). Id. at 905. The actual "equal protection" problems are not addressed anywhere in Welfare’s submissions. As noted in 2004, properly construing the phrase "per annum, or portion thereof" requires assessing the penalty every year. As a basic matter of equal protection, any law that would treat identically being late for a day, and being late for a year - or 10 years - or 100 years - is highly suspect and probably constitutionally infirm. It would not take much effort to put together an equal protection challenge to Welfare’s assessment of the same penalty on arrears owed for greatly disparate periods of time. 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. en partition is unavailable, the only mechanism for recovery for a divested spouse may be a malpractice suit against divorce counsel, in which the potential liability is the value of the benefit lost by the shortchanged spouse. Courts hearing such cases have stated that any attorney practicing divorce law is charged with knowing about the existence, value, and mechanics of dividing any retirement benefits that might exist. 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%.6 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). Further, this Court has repeatedly directed that in examining the law, courts are to look to the "context and policy of the law" and construe legislative enactments "so as to avoid absurd results."6 Any doubt as to legislative intent must be resolved in favor of what is reasonable, as against what Any doubt as to legislative intent must be resolved in favor of what is reasonable, as against what is unreasonable, for that purpose.7 Notably, none of the various time limits and statutes of limitations appear to be applicable to proceedings in the Board for Correction of Military Records, which has "broad remedial and discretionary powers to correct records."28 SUP> In Barnes, once the legislative purpose was determined, the Court examined the actual effect of the statute. In that case, the Court found that meritorious as well as frivolous actions would be blocked, and struck the statute down because the classification scheme created was therefore arbitrary and irrational, and thus violated equal protection.4 The Court held that payments once accrued under a decree, for either alimony or support of a child, become a vested right and cannot thereafter be modified or voided. The Court noted that it was well settled in that a district court was without power to effect a revision or remittance of past due alimony. The Court rejected the husband's claim of an equitable offset and further held the husband was not entitled to retroactive modification of alimony provisions of the decree to give him credit against the amount of arrear ages sought to be recovered by divorced wife because of amounts paid by him directly to the son. The maximum amount of the standard SBP annuity for a beneficiary under age 62 or a dependent child is 55 percent of the elected amount of the member’s base retired pay13 as adjusted from time to time for cost of living increases.14 More specifically troubling, the formulaic approach the majority adopts in this case is inconsistent with the approach the Nevada Legislature in fact chose to take. Thus, in 1987 the Nevada Legislature considered and rejected a proposal that would have established a 40-percent "joint physical custody" timeshare test and tied it to a corollary child support formula. A.B. 424, 64th Leg. (Nev. 1987), discussed in Barbagallo v. Barbagallo, 105 Nev. 546, 548, 779 P.2d 532, 534 (1989). Instead of a mathematical formula, the 1987 Legislature adopted the multifactored approach to determining support found in today's NRS 125B.080. Id. Based on this history, in 1989 this court held that it is "inappropriate for the courts to adopt their own formulas when the mathematical approach to adjusting the formula in joint custody cases has been considered and rejected by the legislature." Barbagallo, 105 Nev. at 550 n.2, 779 P.2d at 535 n.2 (as amended by 786 P.2d 673 (1990)). SPAN> These work-arounds to the ten-year rule are also somewhat philosophically awkward, in that they attempt to satisfy the underlying purpose of the USFSPA by circumventing one of its limitations. It is possible that courts squarely addressing the practices recommended here gave differing opinions of their permissibility. Another trip to the United States Supreme Court (or a congressional revisiting of the issue) is necessary to eliminate the problem in the future. The Supreme Court reversed, concluding that the best interest of the child could not be served by refusing to reduce arrears to judgment as a form of punishment for not allowing visitation. The district court was required to consider the child’s best interest and any other equitable factors consistent with the State child support guidelines in determining what amount of support arrears should be reduced to judgment. The Court stated, "Noble, Melahn and other cases predating adoption of the Nevada child support guidelines are hereby overruled to the extent that they can be read to support a contrary posi tion." Id. at 1381. There is a question whether the "broad discretion" accorded to trial courts in making property distributions under the pre-1993 law has been changed in any meaningful way by the change from "equitable" to "presumptively equal" division. The matter could probably be argued either way. There is plenty of authority for the proposition that the legislative change reduced the scope of judicial discretion to make unequal distributions, since legislative enactments are to be construed so that "no part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly be avoided."6 On the other hand, the new statutory construction still appears to be leave plenty of wiggle room. Normally, when parents live in different places, child support is set in accordance with the law of the residence of the obligor.4 But a military member may have an anomalous status under the Uniform Interstate Family Support Act; if the member maintains his residence or domicile elsewhere than where he is stationed, that State might maintain exclusive modification jurisdiction, and the law of that State might control child support awards and modifications.5 The essential lesson of this jurisdictional point (for the spouse) is to never take a default divorce against an out-of-State military member if seeking to divide the retirement benefits. The resulting judgment will not be enforceable; if valid jurisdiction under both State and federal law cannot be achieved, then the action may have to be dismissed and re-filed in the State in which the military member resides. The non-uniform national law governing partition of omitted assets therefore makes it imperative for counsel to address all pension benefits during the divorce case itself, as a matter of prudent, if not defensive, practice. The parties had an approximately nine year marriage. The husband was ordered to pay alimony and child support and was awarded partial custody of the daughter. The wife requested alimony and support of$1 ,000 per month. The district court awarded alimony of $200 per month until the wife remarried or died, and child support of $150 per month, for three years; then $200 through elementary school, and then $250 per month until the child reaches the age of majority. The wife appealed claiming that the award was grossly inadequate. B) Notwithstanding any other provision of law, the total amount of the disposable ret red pay of a member payable by the Secretary concerned under all court orders pursuant to this section and all legal processes pursuant to section 459 of the Social Security Act (42 U.S.C. 659) with respect to a member may not exceed 65 percent of the amount of the retired pay payable to such member that is considered under section 462 of the Social Security Act (42 U.S.C. 662) to be remuneration for employment that is payable by the United States. Quoting at length from a law review article analyzing the mathematics of the situation, the court found that acceptance of the husband¡¯s argument would have allowed him to collect the entirety of the accumulating "earnings" on the marital property accumulated by both parties. Three judges dissented.5 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. In May 1968, the parties purchased the lot adjoining their residence. The husband testified that he told the wife she would have to get the $750 for the down payment. The wife did so and put the property in her name. The husband claimed the wife used his money to make the purchase, but the wife claimed that she made all of the payments and paid the taxes with money the husband had given her for security. The district court found this lot to be the sole and separate property of the husband. In Sertic v. Sertic,19 the trial court had ordered immediate distribution of the value of the wife’s share of the Civil Service Retirement System (CSRS) pension. The Nevada Supreme Court found that a trial court would only not err in making such an order if certain conditions were met: (1) the present value could be determined with reasonable certainty; (2) there were sufficient existing funds to distribute the retiree’s interest; and (3) both parties agreed that the distribution would be the final distribution regardless of what might occur in the future. The Court ruled that the district court had erred in determining the present value, and it could not be determined from the record whether the parties had agreed that the trial distribution would be final, so the case had to be reversed. The district court had dismissed the woman’s complaint, but the Supreme Court reversed, finding that in a notice-pleading state, an allegation of an agreement to pool income or contract to hold property is enforceable, citing Marvin v. Marvin, 557 P.2d 106 (Cal. 1976). The Court stated that "[i]n the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case." Id. at 199. The Court held that the remedies set forth in Marvin were available to unmarried cohabitants. Unmarried persons who are living together have the same rights to lawfully contract with each other regarding their property as do other unmarried individuals. The agreement may be express or implied from their conduct. The courts will protect their reasonable expectations with respect to transactions concerning property rights. Id. at 199. Each case should be assessed on its own merits with consideration given to the purpose, duration and stability of the relationship and the expectations of the parties. Id. The Court further noted that one party should not be permitted to abscond with the bulk of the assets. Given the Landreth holding, the only apparent way to restore logic to case assignments ¨C and prevent unnecessary malpractice claims against attorneys who guess wrong ¨C is for the Nevada Legislature to amend NRS 3.223 to expressly state that family courts have jurisdiction over the disposition of property accrued during meretricious or quasi-marital relationships. Perhaps someone on the mailing list for these Legal Notes can provide it to a legislator. bsp; d. Also, deviation factors built into the statute for certain listed factors, the most commonly-used of which are the relative incomes of the parents, cost of child care, special educational needs, and the legal responsibility of the parents for the support of others. Transportation expenses can be factored in if the custodial parent relocates with the child away from Nevada and the noncustodial parent remains. You can find The Marren and Page Case List Dimick v Dimick Divison of Military Retirement Benefits In Divorce Section D The Marren and Page Case List Willmes v Reno Municipal Court How Low Does the Bar Go The Marren and Page Case List Pelletier v Pelletier family law jurisdiction Carson City The Marren and Page Case List Dagher v Dagher Sims v Sims Hayes v Gallacher Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Military Retirement Benefits The Marren and Page Case List Laws v Ross Milisch v Hillhouse and Verheyden Division 5050 or Other Rivero State Bar Amicus Brief Part One Subsection I Rivero State Bar Amicus Brief Approaches Relating to Unequal Joint Custody Custody Visitation and Temporary Support Issues The Marren and Page Case List Champagne v Welfare Divorce Geeson v Barnes I Cases and Trends Alternatives and Analogies Federal Courts Early Outs and the Role of Alimon Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Factors to Consider in Deciding Whether to File in Federal or State Court The State Bar Fee Dispute System is Broken The Marren and Page Case List Dimick v Dimick available at lvfamilylawyer.com by clicking above. Site Map Divison of Military Retirement Benefits In Divorce Section X Subsection C The Marren and Page Case List Woods v Bromley and Smolen v Smolen The Marren and Page Williams v Williams The Marren and Page Case List Jensen v Jensen and Sertic v Sertic Military Retirement Benefits Penalty Calculations The Marren and Page Case List Renshaw v Renshaw |