POWERS VS. POWERS (RETIREMENT DIVISION)

Key holdings

Practitioner summary

The court affirmed the district court's characterization of the husband's disability retirement benefits as containing a community-property (retirement) component subject to division on divorce. The husband's disability retirement arose from a work-related injury that forced his retirement from the New York City Department of Corrections; he was ineligible for ordinary retirement but eligible for disability retirement, electing a life-benefit option. On appeal the husband argued for the first time that New York law should govern divisibility because the benefits were earned and awarded in New York. The court declined to consider the argument, holding that a party may not raise a new theory on appeal that is inconsistent with or different from the one raised below. Tupper v. Kroc, 88 Nev. 146, 494 P.2d 1275 (1972). Below, the husband had argued the benefits were his separate property under New York law and that New York law accorded with community property principles. The court observed that community property jurisdictions generally recognize that disability retirement benefits may contain two components - replacement of lost earnings and a retirement benefit - and that New York law likewise recognizes this dual character. See Musumeci v. Musumeci, 506 N.Y.S.2d 629 (N.Y. Sup. Ct. 1988). The district court found the husband's benefits contained a retirement component, and the husband supplied no contrary authority and could not argue for the first time on appeal that the benefits lacked a divisible retirement component. Affirmed.

In plain language

Robert and Cecelia Powers married in New York in 1962. Robert began working for the New York City Department of Corrections in 1968. In 1974, a knee operation severed a nerve, leaving him with a condition called drop foot, and a medical board found him disabled, forcing his retirement in 1979. Robert was not eligible for regular retirement benefits, but he was eligible for disability retirement benefits, and he and Cecelia chose an option that paid a benefit for Robert's life. The couple then moved to Las Vegas, and Cecelia filed for divorce in 1987. They disagreed about whether the disability retirement benefits were community property (to be divided) or Robert's separate property, and about spousal support. The district court found the benefits were community property because they appeared substantially related to Robert's employment. It noted that part of the payment could be seen as replacing lost earnings, but it could not determine how much. The court added that if it had not treated the benefits as community property, it would have awarded Cecelia alimony instead. On appeal, Robert argued for the first time that New York law should govern whether the benefits could be divided. The Nevada Supreme Court refused to consider that new theory, because a party cannot raise on appeal a theory different from the one argued below; in the trial court, Robert had argued the benefits were his separate property under New York law and that New York law agreed with community property principles. The court explained that community property states - and New York - recognize that disability retirement benefits can have two parts: one replacing lost earnings and one that is a retirement benefit. The district court had found Robert's benefits included a retirement component, and Robert offered no authority to the contrary. Because he could not argue for the first time on appeal that the benefits contained no divisible retirement component, the court affirmed.