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The Marren and Page Case List Truax v Truax
Learn more about The Marren and Page Case List Truax v Truax.
Custody best interest standard test in joint physical custody casesThe Court noted the father of a child has a legal duty to support his child under NRS 125B.020. The father is entitled to no "tangible benefit" for fulfilling this responsibility. The father has no greater right than the mother to have a child bear his surname. The only factor relevant to the determination of what surname a child should bear is the best interest of the child. The burden is on the party seeking the name change to prove, by clear and compelling evidence, that the substantial welfare of the child necessitates a name change. B> Most States that have brought themselves to issuing any guidelines at all for the distribution of pension plans have espoused rules for the division of the case at issue, without limiting language concerning whether different rules might be better applied if the retirement plan was some other kind of retirement plan. The Court noted that the deed contained no recital that the property was from that day forward to be her separate estate. The parties resided on the premises from the time of marriage to death. The Court first noted that from the time the property was deeded to the husband until the time he deeded to the wife the property was presumptively community property citing to In re Wilson’s Estate, 56 Nev. 353, 53 P.2d 339 (1936); , 49 Nev. 299, 245 P. Jones v. Edwards, 292 (1926), and Milisich v. Hillhouse, 48 Nev. 166, 228 P.307 (1924). The Court then noted that by the deed of January 1924, the property became, presumptively, the separate property of the wife. The Court noted the presumption was rebuttable. The Court additionally noted that the district court found that the property was paid for with community funds, and that it was community property at the time of the wife’s death. The Court found that there was ample evidence in the record to support those findings and concluded that any presumption that the premises were separate property was satisfactorily overcome. If it was more than six months, it might not make any difference what other conversations the parties might have allegedly had,1 even if the argument was made in a court which could make a relevant determination, because a court could determine that she was on notice and had an obligation to commence proceedings within the six month period allowed by the UCCJEA. That has now changed. The Servicemembers Civil Relief Act ("SCRA") has been amended by the new "Military Spouses Residency Relief Act" to essentially extend to spouses of military personnel the protections previously afforded just to military members. It is easiest to think of the new law in the negative; boiled down, it says: NRS 125.155(2)(b) actually does something - it explicitly permits a court to order private life insurance to make up for the lack of any "pre-retirement survivor annuity" in the PERS system.2 In 1938, the wife secured an interlocutory decree of divorce in California. The husband was ordered to pay $50 a month in child support. In April 1950, an action was brought in Las Vegas against the husband to secure the$3,145 in accrued support payments. Judgment was rendered in that amount following trial. The husband contended that payments accruing prior to April 1944, were barred by the statute of limitations since a cause of action arose on each payment as it became due. Out of a total sum of $6,900 accruing under the California decree, $3,755 had been paid. It did not appear that any specific application of these payments was made by either party. The Court held that in the absence of such application, the general rule is that the court will make application to the oldest debt. Andrew and Judy Tomkins divorced in 1973 after an ii-year marriage. Their stipulated decree divided property and contained a convoluted provision paying principal and interest on a note payable to Judy, with the interest denominated "alimony," apparently for tax reasons. Under the agreement, Judy could delay taking principal indefinitely, thus prolonging the payments of interest/alimony. Despite the "will at least afford an opportunity" language in the legislative history, however, courts in some 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 in some of those States, specifically permitting those divorced during the gap a limited time to relitigate the division or non-division of the retirement benefits.3 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. The Court noted the father of a child has a legal duty to support his child under NRS 125B.020. The father is entitled to no "tangible benefit" for fulfilling this responsibility. The father has no greater right than the mother to have a child bear his surname. The only factor relevant to the determination of what surname a child should bear is the best interest of the child. The burden is on the party seeking the name change to prove, by clear and compelling evidence, that the substantial welfare of the child necessitates a name change. 6) The term "spouse or former spouse" means the husband or wife, or former husband or wife, respectively of a member who, on or before the date of a court order, was married to that member. SPAN> Regarding a related question, a spouse can generally receive a share of any early retirement taken by a member under the Variable Separation Incentive (VSI) or Special Separation Benefit (SSB) or the early (15-19 year) retirement program known as the "Temporary Early Retirement Authority" (TERA).21 The first two programs were offered to members in "selected job specialties" who had accrued between six and twenty years of service. Some were required to serve in Reserve units, as well, after leaving active duty. The early retirement option for members with more than 15 but fewer than 20 years of service is similar to "regular" military retirement, except that the sum paid contains an actuarial penalty. All three of these programs have been repeatedly re-authorized by Congress, although they were supposed to expire after the military "draw-down" of the 1990s. The Nevada Supreme Court finally decided the Rivero Opinion on Rehearing (Rivero v. Rivero, 125 Nev. ___, ___ P.3d ___ (Adv. Opn. No. 34, Aug. 27, 2009), altering the applicable standards for making custodial determinations. Adopting the bright line test suggested by the State Bar’s Family Law Section working group (Ray Oster, Jennifer Abrams, Mary Anne Decaria, and Marshal S. Willick), a custodial time share of anywhere from 50/50 to 60/40 is now "joint custody." This replaces the far more cumbersome (and uncertain) analysis in the original Opinion. The standard "time rule" formula seems simple enough ¨C the spousal share is determined by taking the number of months of service during marriage as a numerator, and the total number of months of service as a denominator, and multiplying the resulting fraction by first one-half (the spousal share) and then by the retirement benefits received. The Supreme Court affirmed. The Court noted that district courts have broad discretion concerning child custody citing to NRS 125.510; Culbertson v. Culbertson, 91 Nev. 230, 533 P.2d 768 (1975) and Paine v. Paine, 71 Nev. 262, 287 P.2d 716 (1955). Given that level of discretion, the Court adopted an adequate cause standard. The Court held that a district court has the discretion to deny a motion to modify custody without holding a hearing unless the moving party demonstrates adequate cause for holding a hearing. UP> In 1986, the California Supreme Court had held in Casas1 that the USFSPA direct payment limitation on state courts was strictly procedural. At least one California case went further, declaring that where the original divorce decree predated McCarty (i.e., June 26, 1981), the existence of a disability is simply irrelevantto the divorce court’s equal division of retirement (and disability) benefits.2 The 1989 United States Supreme Court decision in Mansell3 made all such prior authority questionable. At its heart, this case asks how we should interpret the parties' stipulated divorce decree. Historically, this court defers to a trial court's interpretation of its own decrees. "It is the province of the trial court to construe its judgments and decrees." Grenz v. Grenz, 78 Nev. 394, 401, 374 P.2d 891,895 (1962). Further, "[w]here a judgment is susceptible of two interpretations, that one will be adopted which renders it the more reasonable, effective and conclusive, and which makes the judgment harmonize with the facts and law of the case and be such as ought to have been rendered." Aseltine v. District Court, 57 Nev. 269, 273, 62 P.2d 701, 702 (1936) (internal quotation omitted). It would be foolish to propose conforming the formal orders of court to what a non-attorney clerk thought he or she heard and scratched a note about while attending to multiple other matters. Specifically, it has been noted in the Bar that under the original Rivero formulation, it is relatively easy to posit facts under which child support would flow from a majority time share custodian to a minority time-share custodian. This was considered significant, because long-standing practice in the Nevada Family Courts did not permit support except from a secondary physical custodian to a primary physical custodian, following Barbagallo, and because the Court did not announce that it was changing its direction in the original Opinion. 65279;A former spouse who negotiated beneficiary status for SGLI in exchange for giving up other rights, or even obtained an order to receive beneficiary status under that plan, thus has no direct remedy if the member dies having named someone else anyway; a member is free to change beneficiaries, and such a named beneficiary is free from suits from the former spouse for a portion of the proceeds. So what to make of district court judges who do not sanction, or even report, "data mining" of paralegals from one firm by another, when it is blatantly obvious? What to make of a Bar disciplinary process that fails to investigate and punish admitted and deliberate mis-use by a lawyer of confidential information for advantage in a case, or even personal gain? Normally, a person’s State of residence is where that person is actually living, but State laws diverge surprisingly widely on the meaning of the terms "residence" and "domicile." In the apparent majority, "residence" is a physical question of location at the time of filing, while "domicile" is that permanent home "to which one returns." 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 the non-employee spouse trying to get a restraining order on file and served on the TSP before the employee can withdraw the funds.4 The Texas cases provide a good example. If the original decree contained a residuary clause stating that un-mentioned property belonged to the non-member former spouse, then she could get her share of benefits silently omitted from decree.5 At least one intermediate appellate court held that the same result followed from total silence of the decree without a residuary clause, since Texas statutory law held that undivided assets were "held" by the parties as tenants in common.6 In 1999, however, the Texas Supreme Court "disapproved" a) The petition or comparable pleading in this state is filed before the expiration of the time allowed in the other state for filing a responsive pleading challenging the exercise of jurisdiction by the other state; The Supreme Court affirmed. The Court stated the mother did not "impliedly acquiesce in the reduction in support by waiting several years to file a claim," in distinguishing why the father could not use an equitable offset, the Court also advised that there was no express agreement, written or oral, that custody could be changed and the payments reduced. Id. at 662. This implies that if the mother had acquiesced for a period of time or there had been an agreement, the father may have had a viable defense. The case was cited approvingly in Parkinson v. Parkinson, 106 Nev. 481, 796 P.2d 229 (1990). The Court also found the compulsion of circumstances where one parent abandoned the child as a reason for not paying support to be inapplicable. The Fifth Circuit has simply held that an award to a former spouse of a portion of the retired pay as property made it her separate property from that day forward, leaving no "debt" to be discharged or otherwise addressed by the bankruptcy court. See In re Chandler, 805 F.2d 555 (5th Cir. 1986), cert. denied, 481 U.S. 1049 (1987). The Ninth and Eighth Circuits have generally agreed with this principal, although their opinions diverge on the question of arrearages. The Court first noted that because the husband never supplied a hearing transcript, it must assume the evidence supported the court’s implicit determinations, meaning "that monies ordered for child support were ´necessary or proper’ for care of the children, and that the $2,500 awarded as suit money was needed so respondent might pay her counsel without diminishing the care the court contemplated for the children." Id. at 532. The Court affirmed, noting that in 1961, NRS 125.150 was amended to facilitate the poorer party in obtaining legal aid, and "to enable attorneys to defer fee claims until the end of divorce proceedings when our courts can most fairly evaluate the worth of services and the impact of fees on the situation of the parties." Id. at 534. The Court then quoted what was then NRS 125.150(2) (now 125.150(3)) "[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 attorneys’ fees are in issue under the pleadings." Id. at 534. The Court held that in divorce matters, since 1961 the wife "may defer adjudication of her claim, for the convenience of the parties, their counsel, and the court." Id. at 534. 6) Nothing in this section shall be construed to relieve a member of liability for th e payment of alimony, child support, or other payments required by a court order on th e ground s that payments made out of disposable retired pay under this section have been made in the maximum amount permitted under paragraph (1) or subparagraph (8) of paragraph (4). Any such unsatisfied obligation of a member may be enforced by any means available under law other than the means provided under this section n any case in which the maximum amount permitted under paragraph (1 )has been paid and under section 459 of the Social Security Act (42 U.S.C. 659) in any case in which the maximum am aunt permitted under subparagraph (8) of paragraph (4) has been paid. SUP> The history of the evolution of "marriage" as an institution is beyond the scope of this work, but in broad strokes it may be said that even ancient societies needed a secure environment for the perpetuation of the species, a system of rules to handle the granting of property rights, and the protection of bloodlines. The parties married in 1970. In 1990, husband developed a brain tumor. On advice of counsel, parties divorced to salvage assets. The house was retained in joint tenancy. By August 1994, husband had greatly deteriorated, and the former wife obtained legal guardianship. She put him in a group home against his wishes in December 1994; he had his nephew hire a lawyer, and the guardianship was terminated in April 1995, finding him competent. In May, the former husband established a revocable trust leaving all his assets to his nephew, and transferred his interest in the house into the trust. The former wife moved to set aside the conveyance, which the district court did as of February 1996, canceling the 1995 transfer deed. 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. SUP> Case law from the time period where the husband was the manager of the community property held that the managing spouse must keep the community and separate property segregated.6 If community and separate property becomes intermingled, it is the managing spouse’s burden to prove the separate nature of the property so claimed.7 Absent such proof, the entire property will be presumed to be community.8 Former spouse coverage was not possible before 1983, and has evolved considerably over the years, as it was made no more expensive than current spouse coverage, and then stipulations to provide such coverage were made enforceable. The Supreme Court affirmed. The Court noted the district court had broad discretion to accept or reject the master’s report. The Court concluded that both Pereira and VanCamp had vitality and could be applied as circumstances warranted. The Court noted that the Van Camp method was inherently fair, and held that the district court’s application of the Van Camp method was substantially supported by the evidence. The case also gave tacit recognition to the proper methodology for conducting a Pereira calculation. The separate property portion is allocated a fair return. This fair return is the multiplied against the separate property portion. This number is then multiplied against the years of the marriage. Every single mediator and arbitrator now involved with the fee dispute system should be contacted in the next ten days and asked to commit to performance standards at minimum in accordance with those suggested above. Those not responding, or unwilling to act, should be dropped from the rolls and the matters previously assigned to them should be immediately reassigned. Decisions should be demanded within 72 hours as to all disputes that have already been heard. Shared physical care", for the purposes of the child support guidelines and schedule of basic child support obligations specified in this section, and as further specified in paragraph (b) of subsection (8) of this section, means that each parent keeps the children overnight for more than ninety-two overnights each year and that both parents contribute to the expenses of the children in addition to the payment of child support. Because shared physical care presumes that certain basic expenses for the children will be duplicated, an adjustment for shared physical care is made by multiplying the basic child support obligation by one and fifty hundredths (1.50). In cases of shared physical care, each parent's adjusted basic child support obligation obtained by application of paragraph (b) of subsection (7) of this section shall first be divided You can find The Marren and Page Case List Truax v Truax Exhibits on Rivero Exhibit Five The Marren and Page Case List Schwartz v Schwartz Jones v Jones Trent v Tre Marren and Page Case List Divison of Military Retirement Benefits In Divorce Section C The Marren and Page Case List Hermanson v Hermanson The Marren and Page Case List Milender v Marcum The Marren and Page Case List Foster v Washoe County and Duff v Lewis The Marren and Page Case List Harris v Harris Libro v Walls and Love v Love child support expert Nevada UCCJEA expert Exhibits on Rivero Exhibit Three Section Two Las Vegas spousal law expert Las Vegas QDRO expert The Marren and Page Case List Truax v Truax available at lvfamilylawyer.com by clicking above. 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