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Peremptory challenges and rule changes a half step
Learn more about Peremptory challenges and rule changes a half step.
How the Nevada Supreme Court has half fixed SCR 48.1In Landreth v. Malik, 125 Nev. ___, ___ P.3d ___ (Adv. Opn. No. 61, Dec. 24, 2009), the Nevada Supreme Court determined that the family courts don¡¯t have jurisdiction to resolve all division-of-property disputes between prior unmarried cohabitants, because the Nevada Legislature has not explicitly said the family courts do have such jurisdiction. In Landreth v. Malik, 125 Nev. ___, ___ P.3d ___ (Adv. Opn. No. 61, Dec. 24, 2009), the Nevada Supreme Court determined that the family courts don¡¯t have jurisdiction to resolve all division-of-property disputes between prior unmarried cohabitants, because the Nevada Legislature has not explicitly said the family courts do have such jurisdiction. Courts have gone to considerable lengths to protect former spouses from the effects of members’ post-divorce waivers of retired pay for disability pay, when such waivers partially or completely divested the spouses of sums that had already been awarded to them. The theory applied was phrased differently from one court to another, but was essentially that of constructive trust. Once a divorce was decreed dividing the "gross" or "total" or "all" military retirement benefits, the money awarded to the former spouse was no longer considered the member’s property to convert. If the member subsequently applied for and received disability benefits, or took any other action to redirect money already ordered paid to the former spouse back to himself, he violated the divorce decree. This thoroughly international case involved a British father and American mother who married in England and had a son born in Hawaii before moving to Chile, where they divorced. The Chilean divorce court awarded the mother primary custody (termed "daily care and control") and provided the father with "direct and regular" visitation rights, every other weekend, and for a month each February. The Court distinguished the doctrine of equitable adoption as used in Frye for child support from its use in establishing legal custody, the Court reversed and held that "for purposes of determining legal parentage in a custody dispute between biological and nonbiological parents, Hermanson holds that NRS 126.051 is the applicable statute." The Court found that the criminal conviction "by definition" met the "clear and convincing evidence" standard, the Court noted the statutory presumption that it would not be in the child’s best interest to be placed in the man’s custody, and found an abuse of discretion. Explicit reservation of jurisdiction for Court to "translate" order to percentage of actual retirement, in case a hypothetical order was made, or an Gillmore election was made, or for any other reason the sums paid are not correctly set out as a percentage of the retirement benefits ultimately paid. It would be an error to directly compare post-Mansell cases with those concerning divorce decrees issued prior to Mansell. Courts that have reviewed decrees issued after 1989 have often held the language used in the decree to a higher standard of clarity. This is reasonable, since after Mansell it would be at least theoretically possible for a divorce court to anticipate the question, and issue an order specifically intending to permit or forbid a post-divorce recharacterization of retirement benefits into disability benefits. In those cases in which there was such an award, no procedural mechanism existed for the enforcement of the interest, leaving spouses to rely upon general state court remedies (e.g., contempt) for enforcement of judgments. is is the scenario focused upon by those who insist the former spouse should pay the entire SBP premium. But the math reveals that it is not really disproportionate to the benefits received, even if left to the "default" premium-payment. pre-emption. It would have required an automatic reversionary interest in the spousal share of the property upon death of the former spouse back to the member, in contravention of this Court’s holding in Wolff, and the very structure of various retirement plans, including ERISA’s divided interest scheme and mandatory spousal survivorship coverage,1 and the heritable spousal share set out in federal law for CSRS and FERS. A dependent child can only be an SBP beneficiary if the child is also one of the following: (1) the child of the former spouse who is the beneficiary; or (2) the child of a current spouse who is the beneficiary, or who has consented to provide the benefit to the child only; or (3) if the previously-named former spouse beneficiary is no longer still alive.6 P> The parties were married for 28 years. The husband earned $31,500 per year, plus supplemental income from teaching and being a referee. The wife had not worked since the last child was born. The wife was, at the time of trial, 47 years old and was unemployed, claiming that she could not work because she suffered from iletis and could not work. The district court was concerned that the wife would be unable to procure health insurance on her own, thus requiring any further medical treatment or surgery to be paid from the alimony she received. The district court awarded $750 per month in permanent alimony. 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." The mother received primary custody of the three children. In June 1977, one of the parties' children moved into the father's home. In response, the father reduced his support payments by $250 per month for the months of June and July, and $474.50 from the payment due for August. In August 1977, the mother filed a motion for judgment for arrearages, requesting a judgment for the amounts withheld from the June and July payments. At the hearing, the father testified that he had in fact reduced the payments for June, July, and August. The father argued that he should be entitled to an "equitable setoff' of the amounts he actually expended on his son while he was living with him. The district court entered judgment for the arrears and held the father in contempt for reducing the payments. PAN style="FONT-SIZE: 12pt"> In a Wright/Wesley situation (50/50 custody), there would be cross-calculations, and the flow of support would be $664 - the presumptive maximum where there is a $5,000 differential in incomes. 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. Comparing the range of possible benefits for spouses, the military system is the most restrictive and limited of all federal and private retirement systems. For example, it is not possible to (in ERISA terms) create a "separate interest" retirement for the spouse (only the benefit stream can be divided), and payments to the spouse are limited to 50% of "disposable pay" (discussed in more detail below). This court gives substantial weight to a judge's decision not to recuse herself and will not overturn such a decision absent a clear abuse of discretion. Goldman v. Bryan, 104 Nev. 644, 649, 764 P.2d 1296, 1299 (1988), abrogated on other grounds by Halverson v. Hardcastle, 123 Nev. 245, 266, 163 PJd 428,443 (2007). A judge is presumed to be unbiased, and "the burden is on the party asserting the challenge to establish sufficient factual grounds warranting disqualification." Id. at 649, 764 P.2d at 1299. A judge cannot preside over an action or proceeding if he or she is biased or prejudiced against one of the parties to the action. NRS l.230(1). To disqualify a judge based on personal bias, the moving party must allege bias that '''stem[s] from an extrajudicial source and result[s] in an opinion on the merits on some basis other than what the judge learned from his participation in the case." In re Petition to Recall Dunleavy, 104 Nev. 784, 790, 769 P.2d 1271, 1275 (1988) (quoting United States v. Beneke, 449 F.2d 1259, 1260-61 (8th Cir. 1971». "[W]here the challenge fails to allege legally cognizable grounds supporting a reasonable inference of bias or prejudice," a court should summarily dismiss a motion to disqualify a judge. Id. at 789,769 P.2d at 1274. Find out where the member last voted; registering to vote usually requires an affirmation of either domicile or residency in the jurisdiction in which the vote is to be cast. Again, when the registration to vote was made could be important, as well as how recently it had last been relied upon. For example, if the registration to vote had been made twenty years ago, and the member last voted years before moving to the forum State, the fact might be of little consequence given events since that time. Joint physical custody may ideally signify something approaching a 50/50 timeshare. However, I am concemed that our judicially mandated 40-percent formula will prove unsatisfactory, especially when used, as intended, to determine support and relocation disputes. Lives change and a child's time is divided, not just between his or her parents, but among friends, school or day care, extended family, sports, and other pursuits. Practical questions seem certain to scuff the bright-line rule-questions like how to count hours the child spends with people besides either parent, or which parent to credit for time the child spends pursuing activities both parents support. Of greater concern, making child support, relocation, and custody determinations depend on parents keeping logs of the number of hours each year a child spends with one parent or the other (leaving aside the calculation and credit questions) detracts from the type of true co-parenting our statutes try to promote. See NRS 125.460; NRS 125.490; see also In re Marriage of Birnbaum, 260 Cal. Rptr. 210, 214-15 (Ct. App. 1989) (dismissing as a "popular misconception" the idea "that joint physical custody means the children spend exactly one-half their time with each parent"; noting that "[p ]arents' demands for equal amounts of a child's time [ can] constitute a disservice to the child"; and that, while "[i]n some cases the nature of the relationship between the parents may necessitate this kind of inflexibility[ u]sually it is temporary, and when the former spouses have adjusted to their new and limited relationship ... mathematical exactitude of time is no longer necessary"); Rutter's, California Practice Guide to Family Law, § 7:358 (2009) (noting that "[a] joint custody order does not mean the child must equally split all of his or her time between the parents"); see also Mosley, 113 Nev. at 60,930 P.2d at 1116 (noting that "NRS 125.460 dictates the public policy of this state in child custody matters [which is] that the best interests of children are served by frequent associations and a continuing relationship with both parents and by a sharing of parental rights and responsibilities of child rearing") (internal citations omitted). SUP> Among this Court¡¯s rules for statutory construction are the principles that if a statute is ambiguous, courts should attempt to follow the legislature¡¯s intent, and "no part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly be avoided."7 Here, the legislative history states that the provision was only intended to guide what PERS should do, not alter substantive divorce law. Further, as discussed below, reading the provision expansively to prohibit orders directed to members personally, as well as to PERS, would create an equal protection nullity, to be avoided if possible. As used in this section, shared responsibility means a parenting plan whereby each parent provides a suitable home for the child of the parties, the court order allows the child to spend at least one hundred twenty days in a calendar year in each home, and the parents have agreed in writing to share the duties, responsibilities, and expenses of parenting, including expenses for the child's education, recreation, and entertainment activities. In a shared responsibility situation, unless the parties otherwise agree and the agreement is approved by the court, the court may, if deemed appropriate under the circumstances, order a shared responsibility cross credit. The cross credit shall be calculated by multiplying the combined child support obligation using both parents' monthly net incomes by 1.5 to arrive at a shared custody child support obligation. The shared custody child support obligation shall be apportioned to each parent according to his or her net income. A child support obligation is computed for each parent by multiplying that parent's portion of the shared custody child support obligation by the percentage of time the child spends with the other parent. The respective child support obligations are offset, with the parent owing more child support paying the difference between the two amounts. It shall be presumed that the shared responsibility parenting plan is exercised. If the parenting plan exercised substantially deviates from the parenting plan ordered, either party may file a petition for modification without showing any other change in circumstances. You can find Peremptory challenges and rule changes a half step The Marren and Page Case List Ormachea v Ormachea Murphy v Murphy and Kern The Marren and Page Case List Forrest v Forrest OHara v Stat ex rel Pub Emp Las Vegas expert pay child support Automatic Temporary Restraining Orders Temporary Domestic Orders What is Or Divison of Military Retirement Benefits In Divorce Section V Subsection D Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Conclusion What Almost Happened to Child Support in Nevada and Why We Still Have to Fi Th Marren and Page Case Lisst Ogawa Amicus Brief Governing Law and Analysis Mathematical Mechanics of the SBP Who Gets How Much If the Other Party Dies The Deflected Attempt to Conform the Law to Error An Introduction to Pensions in Nevada Divorce Law Section I Subsection B Special Problems and Considerations in International Military-related Cases Peremptory challenges and rule changes a half step available at lvfamilylawyer.com by clicking above. 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