WALSH VS. WALSH (RETIREMENT DIVISION)

Key holdings

Practitioner summary

The court construed the divorce decree rather than modifying it (modification being barred by the six-month limit of NRCP 60(b); see Kramer v. Kramer, 96 Nev. 759, 616 P.2d 395 (1980)). Applying the settled rule that only retirement benefits earned during the marriage are community property (Forrest v. Forrest, 99 Nev. 602, 668 P.2d 275 (1983); In re Marriage of Gillmore, 629 P.2d 1 (Cal. 1981)), the court held that benefits earned after divorce are the employee spouse's separate property. Absent express language to the contrary, the phrase awarding "one-half of [James's] pension" did not unambiguously reach the post-divorce portion; read as a whole - dividing other assets equally and preserving jurisdiction to enforce payment of the wife's "community interest" - the decree evinced intent to award only the community (pre-divorce) share. The decree could be interpreted from its own language without extrinsic evidence, so remand for an evidentiary hearing was unnecessary.

In plain language

James and Lee Walsh were divorced in 1980. Lee's attorney drafted the divorce decree, and James had no lawyer. The decree gave Lee "one-half of [James's] pension with the United States Government." Five years later, when James retired and began drawing his federal pension, Lee claimed she was entitled to half of the entire pension - including the part James earned during the five years he kept working after the divorce. James asked the court to clarify what the decree meant. The referee and trial court concluded that the decree unambiguously gave Lee half of the whole pension and that they had no power to change the decree because more than six months had passed since it was entered. The Nevada Supreme Court reversed. It explained that only retirement benefits earned during the marriage are community property, so James was entitled to keep, as his own separate property, benefits he earned after the divorce. The court held that the phrase "one-half of [James's] pension" did not clearly entitle Lee to a share of post-divorce earnings, and that reading the decree as a whole showed the opposite intent - the decree divided other assets equally and referred to Lee's "community interest" in the pension. Because the decree could be interpreted from its own language, no further hearing was needed; Lee was entitled only to one-half of the portion of the pension earned before the divorce.