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The Marren and Page Case List Peardon v Peardon Rush v Rush Applebaum v App
Learn more about The Marren and Page Case List Peardon v Peardon Rush v Rush Applebaum v App.
nbsp; G. Some Practical Points to Actual Collection of Child Support, Alimony, and Property Divisions From Military Members The Supreme Court held that where a party to a divorce suit dies pending an appeal from a decree of divorce the appeal, according to the great weight of authority, abates with respect to the marital status, but not so far as property interests are involved. The wife contended that the district court striking of her affirmative defenses and cross-complaints was error that therefore in determining whether property rights are involved, the Court should consider the question as if the husband’s motion to strike had been denied. The Court held that the district court’s action in granting motion to strike was correct. An example helps illustrate. Presume a worker who was in service for exactly 20 years, who was married to wife one for the first ten, and wife two for the next ten, retiring on the day of divorce from wife two. Presume he had started work at $20,000 per year, and had enjoyed 5% raises every year. That would make his historical earnings look like this: UP> NRS 123.220 allows spouses to agree to the characterization of property as community or separate by entering into a written agreement. Separate statutory provisions govern Premarital Agreements.4 Agreements as to transmutation can be complex and are beyond the topic of this paper, and so generally are not discussed further here. The Court commented that the Jones decision "clarifies the weight to be given to the factors set out in the Schwartz opinion." Id. at 761. Denial based solely on disruption of weekly visitation places an "unfair burden" on the custodial parent." Id. at 761. The Court reiterated its position in Jones that custodial parent is the one who has to "arrange his or her day-to-day life in a manner consistent with the burdens of raising the child." Id. at 761. The Court held that district court abused its discretion in failing to consider alternative schedule and denying request to move. In summary of both of these cases, the Court concluded that, Castle v. Simmons, 86 P.3d 1042, 120 Nev. Adv. Rep. 15 (April 1, 2004)The parties divorced August 1998. There were six children from the marriage. The decree incorporated a settlement agreement that awarded "full legal and physical" custody of the children to the mother and the father’s obligation to pay support. After the divorce, the father learned from his two oldest children that the mother, before and after entry of the decree, engaged in acts of domestic violence against them and their younger siblings, the extent of which he was previously unaware. The father sought to modify custody, relying on the alleged instances of domestic abuse before and after the divorce. The district court granted father’s ex parte application for temporary custody. The parties then stipulated to share custody of the three remaining minor children pending a final ruling on the motion to modify. Extensive testimony was given. The district court found that clear and convincing evidence supporting the claims of the mother’s abuse. In concluding that a change in custody was warranted, the district court followed NRS 125C.230(1), which created a presumption that when a parent engages in domestic violence, that parent’s sole or joint custody of the children is not in the children’s best interest. The district court found that the mother had not rebutted the presumption. The district court ordered that custody of the three minor children be changed from the mother to the father. The Supreme Court affirmed. The Court held that res judicata principles applied in custody matters only to matters which were raised and litigated. The Court noted that it recognized this principle long ago in Abell v. District Court, 58 Nev. 89, 96-97, 71 P.2d 111, 113 (1937) when it concluded that a change of custody may be based on material facts that existed when the decree was entered but were unknown to either the moving party or the court. North Carolina went further than any other State in 2007 when it passed fairly sweeping legislation designed to "protect servicemembers."4 The new law allows expedited hearings upon the request of a servicemember, lets a court use electronic testimony when the servicemember is unavailable, allows a court to delegate the visitation rights of the servicemember to another family member, and requires that any temporary custody order entered upon a member’s deployment end within ten days of the member’s return, and that his or her absence due to deployment may not be used against the servicemember in a change of custody hearing. Other States are considering and passing similar laws. The district court judge vacated the master’s recommendation concluding the district attorney had no authority to represent a custodial parent in child support modification proceedings when the non-primary parent is current on child support payments. The Supreme Court affirmed stating: This is another area in which confusion seems rampant. It is not unusual for a party to have moved here and initiated litigation here, requesting among other things a fee award against an out-of-State opposing party. Nevada may not order any such economic relief against a defendant over whom the court lacks personal jurisdiction. Nev. 1367, 1368, 970 P.2d 1071, 1072 (1998) (using the terms joint physical custody, equal physical custody, and shared physical custody); Barbagallo, 105 Nev. at 547-48, 779 P.2d at 533-34 (utilizing the terms joint or shared custody). Given the various terms used to describe joint physical custody and the lack of a precise definition and timeshare requirement, we now define joint physical custody and the timeshare required for such arrangements. This appeal is occasioned solely by the filing practices of the Clerk of the Eighth Judicial District Court. Once again, a litigant has fallen victim to the faulty internal procedures of that office. Courts in other states, such as California and Idaho, ruled that no common law remedy existed for such persons. These rulings led to passage of "window" statutes specifically permitting those divorced during the gap a limited time to relitigate the division or non-division of the retirement benefits.12 Nevada passed the first such statute, which expired after only six months, in 1983. Illinois enacted the most recent window period, which closed in January, 1989. Illinois X is a Participant hereunder and his/her last known mailing address is ______________________________ and his/her date of birth is _______________ and his/her social security number is _______________. b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. 65279;The Supreme Court reversed. The Court held that an appeal does not abate when permanent or lump sum alimony is involved. The Court noted that it would not a district court's grant or denial of permanent or lump sum alimony absent an abuse of discretion, citing to Fenkell v. Fenkell, 86 Nev. 397, 402, 469 P.2d 701,704 (1970). The Court further noted that under NRS 125.150(4) provided that the court may set apart a portion of the husband's property for the wife's support as is deemed just and equitable, which allows a lump sum award, citing to Sargeant v. Sargeant, 88 Nev. 223, 229, 495 P.2d 618, 622 (1972). The Court then looked at the factors in the case. At the time of the divorce, the husband was in poor health and had a much shorter life expectancy. Because of his substantial wealth, an award of permanent or lump sum alimony would not have substantially depleted his assets. The wife had few assets or hopes of employing herself. The husband's death would have left her with essentially no means of support, while she likely had many more years to live. The Court found that an award of alimony to extend beyond the husband's death would, under the circumstances of the case, have been just and equitable. The Court held that the district court abused its discretion in not awarding permanent or lump sum alimony. It is not necessary that the date of a certification of the authenticity or completeness of a copy of a court order for child support received by the Secretary concerned for the purposes of this section be recent in relation to the date of receipt by the Secretary. For attorney’s fees, the Court concluded that Leeming v. Leeming, 87 Nev. 530, 490 P.2d 342 (1971) was controlling and held that the power of the court to award attorney’s fees in divorce actions remained a part of the continuing jurisdiction of the in appropriate postjudgment motion relating to support and child custody. Duff v. Foster, 110 Nev. 1306, 885 P.2d 589 (1994), was overruled to the extent that the earlier decision held that attorney’s fees could not be awarded in post-divorce proceedings. The Court held that under NRS 125.150(3), attorney’s fees can be awarded. However, because the district court’s decision concerning relocation was reversed, the Court concluded the award of attorney fees must also be reversed. Ironically, given the enormous amount of litigation regarding disability benefits and military retirement benefits during the past fifteen years or so, it appears that many of the specificissues at The Supreme Court reversed. The Court noted that its recent decision in Gemma v. Gemma, 105 Nev. 458, 778 P.2d 429 (1989), controlled the issue. The Court noted that in Gemma, it held that the "time rule" should be used by the district court in determining the community interest in a retirement plan. The Court also noted that it required that the community share of benefits had to be measured using the "wait and see" approach. The Court additionally noted that it held in Gemma that the community gains an interest in the pension ultimately received by the employee spouse, not simply that the pension that would be recovered were the spouse to retire at the time of divorce. The district court improperly applied the principles set out in Gemma. The district assumed that reelection would require extraordinary effort and therefore improperly placed the burden on the wife to show that those efforts were not extraordinary. Next door in Nevada, community property ceases to accrue on the "date of divorce" There, the math would be 12 (years of marriage) ÷ 20 (years of service) x .5 (spousal share) x $1,000 (pension payment) = $300. The court rejected the members’ "equal protection" attacks on partition of pensions omitted from the initial decrees of some of the plaintiffs, recounting the retirees’ "odysseys through the state and federal courts challenging state court decrees dividing their retirement pay" and noting that the retirees "were unable, as a final matter, to convince any of these courts that division of their retirement pay was unconstitutional or legally improper." The court found that partition of military retirement benefits is precisely the sort of "economic adjustments to promote the common good" that legislatures properly perform, and that any retroactive effect of USFSPA is curative, accomplishes a rational purpose, is entitled to be liberally construed, is shielded from constitutional attack, and served public policy. It rejected the contract clause and due process arguments as well. For example, in In re Marriage of McGhee,1 the court approved compensation to the former spouse by means of alimony, as set out in the agreement between the parties, when it was imposed by the dissolution court after the member halted the flow of military retirement benefits to former spouse after the McCarty decision. The court termed use of such "back-up" clauses to be making the property award "supportified." Similarly, in deciding In re Marriage of Sheldon,2 the court noted the "close relationship between the amount of a property division and the entitlement, if any, of a spouse to spousal support." In In re Marriage of Mastropaolo,3 the court "conditionally" reversed an alimony award "on condition" that the court’s affirmance of the retirement division became final. We now discuss primary physical custody to contrast it with joint physical custody and to clarify its definition. A parent has primary physical custody when he or she has physical custody of the child subject to the district court's power to award the other parent visitation rights. See, e.g., Ellis, 123 Nev. at 147, 161 P.3d at 240. The focus of primary physical custody is the child's residence. The party with primary physical custody is the party that has the primary responsibility for maintaining a home for the child and providing for the child's basic needs. See Barbagallo, 105 Nev. at 549,779 P.2d at 534 (discussing primary custodians and custodial parents in the context of child support); see Tenn. Code Ann. § 36-6-402(4) (2005) (defining "primary residential parent" as the parent with whom the child resides for more than 50 percent of the time). This focus on residency is consistent with NRS 125C.01O, which requires that a court, when ordering visitation, specify the "habitual residence" of the child. Thus, the determination of who has primary physical custody revolves around where the child resides. In determining custody of a minor child ... the sole consideration of the court is the best interest of the child." NRS 125.480 (1). The Legislature created a presumption that joint legal and joint physical custody are in the best interest of the child if the parents so agree. NRS 125.490(1). The policy of Nevada is to advance the child's best interest by ensuring that after divorce "minor children have frequent associations and a continuing relationship with both parents ... and [t]o encourage such parents to share the rights and responsibilities of child rearing." NRS 125.460. To further this policy, the Legislature adopted the statutes that now comprise NRS Chapter 125 to educate and encourage parents regarding joint custody arrangements, encourage parents to cooperate and work out a custody arrangement before going to court to finalize the divorce, ensure the healthiest psychological arrangement for children, and minimize the adversarial, winner-take-all approach to custody disputes. Mosley, 113 Nev. at 63-64,930 P.2d at 1118; Hearing on S.B. 188 Before the Senate Judiciary Comm., 61st Leg. (Nev., Feb. 12, 1981) (Senator Wagner's comments) (discussing parents reaching an agreement before coming to court); Hearing on S.B. 188 Before the Assembly Judiciary Comm., 61st Leg. (Nev., Apr. 2, 1981) (summary of supporting information) (enumerating flaws in the old statute). The provisions of the UCCJA are not in conflict; they provide that "reasonable notice and an opportunity to be heard" must be give to any person who has physical custody of the child before entry of a final decree. [Insert local cite, or alter to refer to UCCJEA, if applicable]. Of course, such notice will be given under our proposed order, since notice of the substantive hearing will be given at the same time as the child is placed into temporary protective custody.2 NRS 130.204 directs the court what to do in the specific circumstance of a "simultaneous proceeding" in two States. The statute has two parts, depending on which State’s case was filed first, and it sounds a bit confusing, because so much of it is framed in the negative, but the rules actually do make sense. 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 deprived of contact with the subject child for months, or even years.2 Denial of contact has, however, been deemed important when it is the member making that assertion, requesting a stay of proceedings under the SCRA when the non-military spouse is the child’s custodian.3 65279;Additionally, as of October 8, 2001, military members were authorized to begin participating in the same Thrift Savings Plan ("TSP") that has been in effect for civil service employees since 1987, but the military chose to call its accounts "UNISERV" accounts. The California Court of Appeals echoed the Emard reasoning in its post-Egelhoff decision in Araiza-Klier v. Teachers Insurance and Annuity Association,5 which imposed an equitable constructive trust on pension plan benefits. The Araiza court acknowledged the expansive reading often given to ERISA, but found that as a matter of both logic and law, "the term ´relate to’ cannot be taken ´to If we adjusted our retainer agreement to include language that we can pursue judgment of a lien through the case for which we are retained, will that be adequate to allow pursuit of the judgment without the necessity of filing an independent action? nbsp; G. Some Practical Points to Actual Collection of Child Support, Alimony, and Property Divisions From Military Members There are a couple of work-arounds for this trap, however. If the former spouse’s interest is small, the present value of that interest could be determined and offset against other marital property or cash to be paid off. If the interest is larger, the situation is more difficult, since most parties lack sufficient assets to permit such an offset.4 The options available to a former spouse’s attorney seeking an enforceable order are then reduced to attempting to persuade the court to impose an irrevocable alimony obligation or seeking a stipulation to secure that interest. Both options have drawbacks. You can find The Marren and Page Case List Peardon v Peardon Rush v Rush Applebaum v App Rivero v Rivero Opinion II B Family Law and Contingency Fees Time to Reconsider Section IV Rivero Family Law and Contingency Fees Time to Reconsider Section III Divorcing the Military and Serving the Civil Service Section II Subsection Las Vegas annulment The Marren and Page Case List Chesler v Chesler and Prins v Prins Rivero State Bar Amicus Brief Part Two Subsection III C The Marren and Page Case List Oren v Deptartment of Human Resources Actual Policy Based Comparison of Calculations Cases and Trends Initial Petition for Return Divison of Military Retirement Benefits In Divorce Section B Rivero v Rivero Opinion Las Vegas family law jurisdiction Las Vegas child support expert Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar After Retirement Use and Abuse of Court Minutes Exhibits on Rivero Exhibit Four A The Marren and Page Case List Peardon v Peardon Rush v Rush Applebaum v App available at lvfamilylawyer.com by clicking above. Site Map Rivero State Bar Amicus Brief Subsection II A Joint Titling Gift or Separate Claims Still Allowed Tracing Legal Authority For Use in Requesting an Emergency Pick up The Marren and Page Case Russo v Gardner McDermott v McDermott and Hayes v The Marren and Page Case List Aldabe v Aldabe Nevada separate maintenance expert The Marren and Page Case List Engebretson v Engebretson |
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