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The Marren and Page Case List Rosenbaum v Rosenbaum
Learn more about The Marren and Page Case List Rosenbaum v Rosenbaum.
Separate PropertySUP> The true breakthrough came with the National Defense Authorization Act for Fiscal Year 2004.3 Two programs were passed in tandem. First, CRSC was expanded to include all combat-related disabilities or operations-related disabilities, from 10% to 100% ratings, effective January 1, 2004, and extended to Guard and Reserve members. PAN style="FONT-FAMILY: Times New Roman; FONT-SIZE: 14pt"> In post-Mansell divorces, the same result has sometimes resulted from different logic. "Safeguard" clauses and "indemnification for reduction" clauses are permissible, and have the result of protecting spouses from the members’ unilateral recharacterization of benefits. The theory is essentially that of constructive trust; once the divorce goes through, the retirement money is considered no longer the member’s property to convert. See Johnson v. Johnson, 37 S.W.3d 892 (Tenn. 2001); In Re Marriage of Harris, 991 P.2d 262 (Ariz. 1999); In re Strassner, 895 S.W.2d 614 (Mo. Ct. App.1995); see also Owen v. Owen, 419 S.E.2d 267 (Va. Ct. App. 1992); Dexter v. Dexter, 661 A.2d 171 (Md. App. 1995); McHugh v. McHugh, 861 P.2d 113 (Idaho Ct. App. 1993). SPAN> 125.460, which seeks to ensure that a child maintains frequent, meaningful and continuing contact with both parents, and recognizes that parents may have joint physical custody without having an exactly equal time share. However, the definition lends itself to vagueness and the Court should give guidance as to when an unequal time share may be characterized as one of joint physical custody. 3. All courts having jurisdiction under those two rules have declined to exercise jurisdiction on the basis that Nevada is the more appropriate forum based on Nevada being the more "convenient" forum, or based on the "unjustifiable misconduct" of the party seeking jurisdiction in the other States.4. No court of any other State would have jurisdiction based on any of the above three rules. The legislature did not define what is meant by a "compelling reason" which would permit an unequal division of community property, and no existing body of statutory or case law provides a reliable precedent. In Lofgren v. Lofgren,7 the Nevada Supreme Court identified one "compelling reason" which would justify an unequal division of community property as the financial misconduct of one of the parties, such as waste or secretion of community assets in violation of court order.8 P> If the order establishes payment to the alternate payee based on the period of marriage, the years of service credit earned during the marriage must be either: 65279;As to both loans and withdrawals, the Federal Retirement Thrift Investment Board will honor "most" court orders restricting distribution (such as preliminary injunctions prohibiting withdrawals) or safeguarding funds for other purposes (such as child support or alimony awards). Thus, in divorce cases or successive spouse cases, there could be some element of a "race to the courthouse," with one party trying to get a restraining order on file and served on the TSP before the employee can withdraw the funds. SUP> In O’Hara v. State ex rel. Pub. Emp. Ret. Bd.,10 the employee spouse was a Nevada State employee and PERS participant who had chosen the maximum monthly annuity, which provided no survivor’s benefits. She died shortly after retirement, and her widower sued the retirement board, seeking to alter the benefit option selection to include a survivorship benefit for himself. Finding that the "community property interests of a nonemployee spouse do not limit the employee’s freedom to agree to terms of retirement benefits," the court ruled that the employee may choose any available options so long as "the community property interest of the nonemployee spouse is not defeated." Perhaps most unsettling, from a malpractice perspective, is the length of time such a claim can lay dormant. Several courts have adopted a "discovery rule" for attorney malpractice cases.3 In other words, divorces involving pensions, but in which no provision was made for survivorship interests, are malpractice land mines, lying dormant for perhaps many years until the right combination of events sets them off. The lesson relating to defined contribution plans is thus to consider whether the "usual way" of dividing benefits in a given jurisdiction is the right way to divide those particular benefits, and in any event, to be sure to specify with precision what is being divided as of when. Arriving at a "hard number" for the value of military retirement benefits is not, however, that simple. There are three different non-disability benefit formulas within the military retirement system. The first group is composed of members who entered service before September 8, 1980, the second consists of those who entered between that date and July 31, 1986, and the third is for those who entered service on or after August 1, 1986. 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. They say that a dog is "Man’s Best Friend." But what happens when "Fluffy" was obtained during the course of a marriage that has ultimately (ahem) "gone to the dogs." As family law attorneys, we have all been faced with clients willing to give up their entire nest egg to keep "Fluffy" from their evil soon to be ex-spouse. The Supreme Court rejected the father’s petition as well. The Court noted that in McGlone v. McGlone, 86 Nev. 14, 464 P.2d 27 (1970), that a fit parent is to be preferred over nonparents in child custody cases and that custody may not be given to a nonparent unless the parent is found to be unfit. The Court concluded that the presumption of parental preference as a matter of law had been overcome. The Court found that the father’s attitude and conduct was one of callous indifference and abandonment. The Court found that the record presented conclusive evidence of husband’s unfitness. The Court noted that the best interests of the children were paramount citing to NRS 125.140; Cooley v. Cooley, 86 Nev.220, 467 P.2d 103 (1970); Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969); Timney v. Timney, 76 Nev. 230, 351 P.2d 611 (1960) and that those interests would best be served by placing the care and custody of the two children with their grandparents. The amounts withheld were based on the member’s pay period and exemptions. This led to widespread anecdotal accounts of abuse by members, who manipulated their tax status so as to maximize withholding and minimize disposable income available for division with former spouses. There has been an administrative ruling from the Comptroller General prohibiting this practice since 1984, but enforcement of the prohibition was uneven, since the pay centers had no uniform policy on how to handle accusations of such manipulation.2 How then to explain the series of bad choices and misfires in the decisions being issued? Not perceiving the practical unworkability of Rivero I. The missed opportunity to clarify the mess of NRS 125.155, in Hedlund. Undermining the uniformity of the uniform act in Ogawa. Making it nearly impossible in many divorce cases to get paid, through Argentena. Needlessly mucking up the law governing dissolution of cohabitant relationships (while demoting family court judges to the rank of "junior grade") in Landreth. If the Court is reluctant to adopt a specific percentage of time as the threshold to consideration of joint physical custody as a possible custody award, it is requested that the Court give clear guidance that if joint physical custody is to be considered an option in a less than equal time share, the time share must be close to equal. Without this clarification, the definition becomes meaningless, leaving the parties to argue over and the trial court to figure out what constitutes"significant periods of time." A member declaring bankruptcy does not lose the right to receive future retired pay based upon prior or future military service. In cases decided prior to enactment of the USFSPA, an order to pay a portion of retired pay to a former spouse (or a sum of money in lieu of such a portion) was often considered a "debt" dischargeable in bankruptcy rather than a property interest. Since enactment of the USFSP A, courts have generally held awards to former spouses of a portion of military retired pay to be non-dischargeable. SPAN> Oren v. Dept. of Human Resources, 113 Nev. 594, 939 P.2d 1039 (1997)The judge had been previously employed as a deputy district attorney and had given advice regarding which crimes to charge the father in neglect proceedings. The judge had also represented the state in the father’s first protective custody hearing. It was held to be inequitable that the motion had to be field 20 days prior to the date set for trial when the disqualifying information was not available to the father’s counsel at the time. It was also held that the termination proceedings and the neglect proceedings were properly considered the "same action or proceeding" as the parental termination case and the judge should have been disqualified. The Supreme Court affirmed. The Court concluded that there was nothing in the order which indicted that the district court did anything more than construe the provision. The Court held that it is well settled that a court of general jurisdiction had jurisdiction to construe its judgments and decrees at any time. The Court discussed how agreements should be construed. The Court noted that agreements in such cases should be construed fairly and reasonably, and not too strictly or technically. The Court further noted that agreements were to be construed as meaning what it could reasonably be inferred the parties intended. The Court noted that "equity regards the substance, and not the form" which it found applicable here. Useful language used in the opinion: "equity regards the substance, not the form," and "de minimis non curat lex" which means the law cares not for small things. 65279;In the cases cited above, and others, the post-divorce disability award sought and awarded to the retiree was not allowed to block the spouse's right to continued payments under the terms of the decree. Even if Mansell does have to be considered in post-divorce recharacterization cases, courts have mandated that former spouses must be compensated, by awards of other property, or alimony, or (most commonly) dollar-for-dollar compensation of all amounts that would have been paid but for the recharacterization. Halbrook v. Halbrook, 114 Nev. 1455, 971 P.2d 1262 (1998) The mother had slight advantage in custody time, the child spent 4.25 more days per month with the mother, neither was the designated primary custodian. The mother received a career-advancing job offer. The district court denied the mother’s request to move. The complaint alleged and the answer admitted that there was no community property belonging to the parties. The matter came on for trial in September 1948, and a divorce was granted. No issue concerning property was raised and except for the finding "that there is no community property belonging to the parties," no mention of property was made either in the findings or decree. The wife requested a new trial which was denied. The husband died in October 1948. The administrator sought to dismiss the appeal. The Court held where a party to a divorce action dies pending an appeal from the decree, the appeal abates unless property rights are involved. The Court cited to Lemp v. Lemp, 62 Nev. 91, 141 P.2d 212 (1945), and Morrow v. Morrow, 62 Nev. 492, 156 P.2d 827 (1945). The Court further stated at 55, that "it is fundamental that where property rights are not in issue in a divorce action, a decree which is limited to granting a divorce in no way prejudices such rights. Upon the entry of such a decree the former separate property of the husband and wife is his or her individual property, and the property formerly held by the community is held by the parties as tenants in common." The Court found that no property rights were involved and the appeal was dismissed. This will usually be a straight-forward factual inquiry. However, certain scenarios can create legal uncertainty, as in the case of a left-behind non-custodial parent who has little contact, or no physical or legal custody, of the child at issue. The Hague Convention also makes an explicit distinction between rights of custody and rights of access, which "include the right to take a child for a limited period of time to a place other than the child’s habitual residence,"1 but which do not give rise to a right to seek return of the child to the left-behind parent’s country.2 What I advised the judge to do was review his old former case list, and figure out whether he might have prepared similar retirement orders (PERS, military, Civil Service, regular QDRO) - both for the benefit of his former clients, and in an effort to reduce his exposure to possible future malpractice claims. As seen in the "early out" cases discussed above, however, and (generally) in the disability cases discussed below, precedent supports a couple of general propositions. First, that the military member may usually choose any legitimate retirement option available under law. Second, that it makes no difference how or why the member reduces the sum of retirement benefits otherwise payable to a former spouse - the fact of doing so mandates that compensation be provided to the former spouse.1 This can play out in a number of ways, depending on the timing of events. Upon separation from service, a tangle of other rules spring into effect. First, TSP accounts of less than $200 are automatically distributed at the time of separation. If between $200 and $3,500, the sums may be left in the TSP, or withdrawn in a single payment or multiple payments (cashed, or rolled over into an IRA or other retirement account). For accounts containing more than $3,500, the TSP balance can be partially or fully withdrawn in a single payment, or by way of a series of monthly payments, or by way of a life annuity. Any combination of the full withdrawal options is called a "mixed withdrawal." Despite this, a number of Nevada attorneys have attempted to manipulate matters by having their clients flee the State after registration of a child support order and filing of a modification motion here, and have actually gone into court claiming that the post-commencement relocation of their clients has an effect on the jurisdiction of the court. Mystifyingly, at least a couple of judges in this State have actually entertained such arguments, and resolved the question of jurisdiction based on the post-commencement relocation of the party resisting the support modification. P> One important clarification in the new Act, is applicability of the UCCJEA to international cases. NRS 125A.225 provides that "A court of this state shall treat a foreign country as if it were a State of the United States for the purpose of applying NRS 125A.305 to NRS 125A.395." In other words, a Court is required to treat the child’s residence in another country precisely the same as it would treat the child’s establishment of a different home State. The wife was 20 years younger than the husband, was working in a bowling alley, and had an eighth grade education when they met. The husband had a post graduate education and had retired from his family’s insurance business. The district court determined that the wife had almost no assets. The district court further determined that the husband was worth approximately $2,000,000 and had monthly income of nearly $10,000 per month. The district court awarded the wife alimony of $1,250 per month. The wife appealed. On the eve of oral argument, the husband passed away. The Court noted that at the time of the divorce, the husband who was much older than the wife, was in poor health and had a much shorter life expectancy. 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 left her with few means of support, and she had a greater life expectancy. An award of alimony to extend beyond the husband’s death would have been just and equitable. The Court held that the district court abused its discretion in not awarding permanent or lump sum alimony. The Court further held that an appeal does not abate when permanent or lump sum alimony is involved and the district could have awarded lump sum alimony. The Court reversed and remanded for a determination of the proper amount of permanent or lump sum alimony to be awarded. The "presumptive maximum" never did make theoretical sense, and artificially reducing child support so that children don’t share in the income of both their parents violates the principle on which our child support statute is based. The entire "presumptive maximum" structure should be tossed. In its place, Nevada should enact a Wisconsin- like universal application of a percentage of income to everyone (up to an income level high enough to encompass most of the population), with a permissive percentage application above that threshold for the relatively few extraordinary-income earners. A deviation because of extraordinary visitation can lead to the interesting result that the custodial parent must pay the non-custodial parent support. This occurred in Little v. Little, 441 Pa. Super. 176,657 A.2d 12 (1995). In that case, after a modification of custodY proceeding, the father was awarded custody of the parties' two children and the father's obligation to pay child support was vacated. The mother later requested modification of the support order, requesting that the custodial father pay her support for the time she exercised her visitation. The trial court denied the request, but the superior court reversed, holding that visitation with the mother was so extensive, it should be more properly labeled "shared custody." Given the extensive amount of time the children are in the custodY of the mother, the mother's limited income versus the father's $20,000 per month income, an award of support to the non-custodial parent was proper. Accord Clarke v. Clarke, 619 So. 2d 1046 (Fla. Dist. ct. App. 1993) (although mother was non-custodial parent, visitation was so substantial that it was like shared custoov: given disparities in income, mother properly received support); LeBlanc v. LeBlanc, 597 A.2d 62 (Me. 1991) (where mother and father shared parental rights, mother had child more than 30% of time, even though father was designated as primary residential care provider, father was properly ordered to pay support to mother); Matz v. Matz, 166 Wis. 2d 326, 479 N.w.2d 245 (Cl. App. 1991) (in joint legal custody situation, there is no rule that parent with primary physical placement cannot be ordered to pay support to the non-primary parent). See also Sillis v. Hernandez, 608 So. 2d 289 (La. Ct. App. 1992) (mother had right to receive support from father during three summer months father was domiciliary parent in absence of judgment stating support would cease for those months); Leone v. Leone, 917 S.W.2d 608 (Mo. Ct. App. 1996) (mother gets support during school year, father gets support during summer months). The Supreme Court reversed. The Court noted that NRS 125B.070(1) set forth the formula in setting child support. The Court also noted that under NRS 125B.080(6), if a court deviated from the formula amount, findings of fact had to be set forth which established the basis for deviation. The Court concluded the district court erred in ordering an abatement in the father’s support obligation for months in which travel expenses for visitation occurred as per NRS 125B.080(9)(i), an abatement in child support should be given when the non primary parent relocates. SUP> The true breakthrough came with the National Defense Authorization Act for Fiscal Year 2004.3 Two programs were passed in tandem. First, CRSC was expanded to include all combat-related disabilities or operations-related disabilities, from 10% to 100% ratings, effective January 1, 2004, and extended to Guard and Reserve members. an appreciable portion of the public that would want to keep some form of presumptive maximum to a potential child support obligation, even though it was philosophically inconsistent with the rest of the child support guideline, and that therefore no improvements were likely unless some realistic alternative limiting mechanism was proposed in place of the existing presumptive ceiling. Where the spouse did not consent to non-coverage, and no "special circumstances" are present, the spouse can petition for "instatement" of the benefits later, even after the member’s death.8 The spouse can be named SBP beneficiary even where he or she has little or no time-rule percentage of the retired pay itself.9 There is no apparent reason why the longstanding authority on statutory interpretation should not continue to be recognized and applied. In fact, the Nevada Legislature has adopted exactly the reading set out in Payne, and has acted to amend the relevant Constitutional provisions consistent with that authority, to ensure this problem does not recur.11 The United States Congress determined that as of November 14, 1986, a court with jurisdiction is explicitly empowered to order members to elect to provide SBP annuities to former spouses, irrespective of the date of divorce, or retirement.1 The only limitation is that if the member refuses to submit the required paperwork, the former spouse must file a written request with the appropriate Service Secretary requesting that the election be deemed to have been made. The written request must be filed within one year of the date of the court order.2 We are increasingly troubled by the trend of parties to leave divorce court with an agreement that settles property and alimony matters, only to immediately walk down the street to the federal courthouse and attempt to relitigate those issues. Such actions call into question the good faith of the parties and their counsel and raise thorny issues of comity and finality of judgments, to say nothing of attempting to make the bankruptcy court into some type of appellate divorce court. We do not think Congress intended this result when it enacted § 523(a)(5). While we recognize that certain marital debts and obligations are and should be dischargeable, we do not believe that § 523(a)(5) gives one spouse carte blanche to retain marital property at the other spouse’s expense. You can find The Marren and Page Case List Rosenbaum v Rosenbaum Is There a Pocket Where to File and Litigation Section V Subsection D Disability Benefits Legal Separation Allowed Part Two of Two The Marren and Page Case List Davis v Davis Primm v Lopes and Mason v Mason Coping with COLAs Awarding Fees Where Jurisdiction is Contested Court-Ordered Divisions of the TSP and Survivorship Benefits for the TSP Divorcing the Military and Serving the Civil Service Section II Subsection Rivero State Bar Amicus Brief Part Two The Marren and Page Case List Mizner v Mizner Simpson v ODonnell Barelli v What is Considered Community Property Rivero v Rivero Opinion Pickerings Discussion Divison of Military Retirement Benefits In Divorce Section X Subsection D Uniform Child Custody Enforcement Act Legal Authority For Use in Requesting Fees in a Pro Bono Case The Marren and Page Case List Rosenbaum v Rosenbaum available at lvfamilylawyer.com by clicking above. Site Map Las Vegas family law advocate The Marren and Page Case List Davis v Davis Primm v Lopes and Mason v Mason How is Property Acquired in Diffrent States Treated Death of Member Before Retirement and After Divorce Teuton Amicus Brief Factual History Rivero State Bar Amicus Brief CONCLUSION Protecting the Interest of and Getting Money from People in th Military Wha Reciprocal Links: The Marren and Page Case List Rosenbaum v Rosenbaum The Marren and Page Case List Rosenbaum v Rosenbaum The Marren and Page Case List Rosenbaum v Rosenbaum The Marren and Page Case List Rosenbaum v Rosenbaum |