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The Marren and Page Case List Carlson v Carlson
Learn more about The Marren and Page Case List Carlson v Carlson.
Pensions fraudThe 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. The parties held a deed to property in joint tenancy. The district court found that the lot was community property and ordered it sold at fair market value with the proceeds divided equally between the parties. The husband never objected to the characterization of the lot as being community property. The parties divorced October 1991. There were two children. The father received primary custody. Both of the parties worked at the same company. After they were laid off, the father secured employment in Oregon and a residence in Idaho. The parties met to discuss the father moving to Idaho. The father was unaware that he needed written consent to move because it was not in the decree. The mother verbally consented to the move. The parties also discussed a new visitation schedule and lowering the support payments. In November 1998, the father, the children and his girlfriend moved to Idaho. The parties were unable to finalize an agreement concerning visitation and child support. The father left the child alone one day while laying sheet rock, however, the child was trained in how to contact the father. The mother called and found out the child was home alone. The mother called the police who conducted a welfare check and who found the child was fine, not scared, was watching television and doing a project. The mother then filed a motion to modify custody asserting that the father had not complied with the move statute and that the father left the child alone. The district court granted the motion finding that both prongs of the Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968) standard had been met. Our statute is based upon the Wisconsin formula, the underlying concept of which is that children should benefit from a noncustodian's income to the same extent that a percentage of that income would be spent on them if the household were intact. That underlying purpose is not one of "need," but of income sharing, so that the child's lifestyle reflects that of both parents. Essentially, a Wisconsin-type formula tends to produce orders that provide children with a standard of living that PAN style="FONT-FAMILY: Times New Roman; FONT-SIZE: 14pt"> Some courts are loathe to engage in any of the speculation set out above, and so tend to just enter "wait and see" orders, reserving jurisdiction to enter an order regarding the retirement benefits until the member is eligible for retirement (or actually retires). Such a non-resolution avoids all of these difficulties, but has its own down-side, in terms of the making it certain that there will be later legal expenses, jurisdictional complications if one or both parties relocate, and the emotional cost of not achieving closure on an issue of primary importance. From there, it is not much of a stretch to say that the judicially-created cause of action belongs in the court assigned the tasks to which the analogy applies. Community property is dealt with in NRS Chapter 125, for which the family courts have exclusive jurisdiction. Cases involving disposition of property "by analogy" to that chapter likewise belong in family court. 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 B> Again, the vagaries of the facts presented (and the realities concerning local courts) will drive the determination, but international child abduction cases are likely, by their nature, to give rise to both diversity of jurisdiction and to satisfy amount-in-controversy limitations. Counsel should give serious consideration to filing in federal court. Figuring reserve retirement pay is complex. The total retirement points earned is divided by 360 to yield "years of service" for retired pay purposes. That figure is multiplied by 2½ percent; the resulting percentage is multiplied by the active duty basic pay payable to an active duty member with the same grade and number of years creditable for retirement. As with active duty members, there is a distinction between reservist retirees depending on the date they entered service. For members who first entered service before September 8, 1980, the figure for "base pay" in the above calculation is the active duty basic pay in effect for the retiree’s grade and years of service in effect when the retired pay begins. For members who first served after September 8, 1980, "base pay" is the average basic pay for the member’s grade in the last three years that the member served. Perhaps the clearest expositions of the reasoning behind the two approaches are found in those cases in which a reviewing court splits as to which interpretation is most correct. The Iowa Supreme Court faced such a conflict in the case of In re Benson.4 The trial court had used a time-rule approach, with the wife¡¯s percentage to be applied to the sum the husband actually received, whenever he actually retired. This conclusion is supported by footnote four, noting that when a different district court judge in another case found that Davidson had acted within the scope of the authority granted him (i.e., "fraud on the court" had not been made out), the Nevada Supreme Court affirmed that decision, as well. The Supreme Court reversed. The Court noted that the law favors hearing cases on the merits, if possible. The Court further noted that this policy is heightened in cases involving termination of parental rights. In considering a motion per NRCP 60(b)(1) asking to set aside an order terminating parental rights without appearance of a party, the district court must analyze whether the movant: (1) promptly applied to remove the judgment; (2) lacked intent to delay the proceedings; (3) demonstrated good faith; (4) lacked knowledge of procedural requirements; and (5) tendered a meritorious defense to the claim for relief. 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. Courts were often most forceful where the member chose to take the substitute benefit after the divorce decree (which, of course, therefore did not mention the benefit). In In re Crawford, the court specifically quoted and analogized to In re Marriage of Strassner, which addressed disability benefits. The Arizona court held that in both situations, the spousal interest was "finally determined" on the date of the decree, and the member would not be permitted to effectively make the spouse¡ s property his own merely by recharacterizing it in some way. The court explicitly held that enforcing divorce decrees by ordering that the spouse receive a portion of the benefit taken by the member in lieu of the regular retirement did not violate Mansell. Finally, we address Ms. Rivero's motions for recusal and disqualification, and the district court's award of attorney fees to Mr. Rivero arising from those motions. SPAN> The Supreme Court affirmed. The Court held a district court acquiring jurisdiction in a divorce matter may award such alimony and make such dispositions of community property "as shall appear just and equitable, having regard to the respective merits of the parties and to the condition in which they will be left by such divorce." Id. at 59. Here, the parties were both represented by counsel, the husband testified that the agreement was fair and just, and reviewing court will give great deference in how the lower court reviews its decrees citing to Wilde v. Wilde, 74 Nev. 170, 326 P.2d 415 (1958). The husband agreed to pay $750 for life as property settlement. The Court held that the payments did not cease because, pursuant to statute, the district court "otherwise ordered," and they were in lieu of property rights rather than alimony. The husband’s failure to appeal or otherwise modify the terms, is an indication of his consent and that he intended the payments to continue during the lifetime of the wife, regardless of her marriage or the maturity of the child. b) Multiply the number of joint minor children by 365 to arrive at a total number of minor child overnights. Add together the total number of overnights the parent is allowed with each joint minor child and divide the parenting time overnights by the total number of minor child overnights. 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. UP> The arrangement can be set up at the time of divorce. In Waltz v. Waltz,1 the Nevada Supreme Court approved a decree which awarded the entire military retirement to the retiree, but ordered him to pay the former spouse, by military allotment, $200 plus cost of living adjustments on that sum, as "permanent alimony." The military service had overlapped the parties’ marriage by just less than ten years, precluding direct payment of a property award through the military pay center, and the appellate court found that in the context of the case, the parties’ use of phrase "permanent alimony," in conjunction with the COLA clause, showed an intent to link it to the military retired pay. Further, the court held that payments to a former spouse do not terminate upon her remarriage when the payments were clearly intended to achieve a property settlement. 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. Divisions of retired pay as property may be made by percentage or dollar sum. Cost-of-living adjustments (COLAs) apply only when dividing the retirement benefits by percentage, so if a dollar sum is used, inflation will greatly reduce the intended award over time. For example, a 59-year-old airline pilot has an effective work life of just one year, as a matter of federal regulation. While such a person is not foreclosed from other work, even in the same industry (say, as a flight instructor), it would not be appropriate, no matter the length of the marriage, to create a permanent or long term alimony award based on a career asset which has been almost completely converted at the time of divorce from potential income to realized income. You can find The Marren and Page Case List Carlson v Carlson Love me Love My Dog Mathematical Mechanics of the SBP Who Gets How Much If the Other Party Dies Analysis of Hypothetical Fact Pattern The Marren and Page Case List Peters v Peters Actual Calculation Diffrences Custody Visitation and Temporary Support Issues Joint Titling Gift or Separate Claims Still Allowed Tracing Rivero State Bar Amicus Brief The Marren and Page Case List Barrett v Franke In re Wilsons Estate Peters How is Property Acquired in Diffrent States Treated Public Employees Retirement System PERS Benefits The Marren and Page Case List Engebretson v Engebretson Hybarger v Hybarger Penalty Calculations Exhibits on Rivero Exhibit Three Section Four Continued Family Law and Contingency Fees Time to Reconsider Family Law The Marren and Page Case List Carlson v Carlson available at lvfamilylawyer.com by clicking above. 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