CARRELL VS. CARRELL (RETIREMENT DIVISION)

Statutes cited

Key holdings

Practitioner summary

Per Curiam. Retirement benefits earned during marriage are community property, Walsh v. Walsh, 103 Nev. 287, 738 P.2d 117 (1987). As community property, they carry rights that do not attach to spousal support - most importantly, community property is not subject to future modification, whereas spousal support may be modified on a showing of changed circumstances, remarriage, or death, NRS 125.150(5), (7). The district court, having awarded each spouse his or her own pension and then ordered the husband to pay 'spousal support' to equalize the pensions 50/50, erred by characterizing the wife's community-property interest as spousal support, thereby subjecting it to possible future modification. On attorney's fees, NRS 125.150(3) permits a discretionary award of reasonable fees, reviewed for abuse of discretion, Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991); where the district court makes no findings, the reviewing court examines the record, Schouweiler v. Yancey Co., 101 Nev. 827, 712 P.2d 786 (1985). The $6,001 award was unsupported - the husband's own filing stated he had spent only $2,101 in post-trial fees, and no findings were made - so the award was an abuse of discretion.

In plain language

John and Aurora Carrell divorced in 1990. Both had pensions. The trial court let each spouse keep their own pension, but because Aurora's pension was worth less than John's, it ordered John to pay her 'spousal support' in an amount that would even out the two pensions to a 50/50 split. The Nevada Supreme Court held this was error. Retirement benefits earned during a marriage are community property. Calling Aurora's share 'spousal support' was a problem because spousal support can later be modified or ended if circumstances change, if the recipient remarries, or on death - while a share of community property is fixed and cannot be modified later. By mislabeling her community-property pension share as support, the trial court wrongly exposed it to possible future reduction. The Court also reversed a $6,001 award of post-trial attorney's fees to John. A court can award reasonable attorney's fees in a divorce, but here the court made no findings to support the amount, and the record did not support it - John himself had stated he spent only $2,101 in post-trial fees. The Court sent the case back to recharacterize Aurora's pension as community property and to make proper findings on any attorney's fees.