KRISTIN E. HENSON, Appellant,
HOWARD HALE HENSON, Respondent
Appeal from a district court order modifying a qualified domestic relations order and denying appellant's motion for a judgment on pension payment arrearages. Second Judicial District Court, Family Court Division, Washoe County; Bridget Robb Peck, Judge.
Todd L. Torvinen, Reno; Richard F. Cornell, Reno, for Appellant.
Rodney E. Sumpter, Reno, for Respondent.
Cherry, J. We concur: Gibbons, C.J., Pickering, J., Parraguirre, J., Douglas, J., Saitta, J.
BEFORE THE COURT EN BANC.
In this appeal, we are asked to consider whether a nonemployee spouse is entitled to survivor benefits if, in a divorce decree, he or she is allocated a community property interest in the employee spouse's Public Employees Retirement System (PERS) pension plan. We are also asked to consider whether the nonemployee spouse must file a motion in the district court to immediately begin receiving his or her community property interest in the PERS pension plan when the employee spouse has reached retirement eligibility but has not yet retired.
We hold that, unless specifically set forth in the divorce decree, an allocation of a community property interest in the employee spouse's pension plan does not also entitle the nonemployee spouse to survivor benefits. We further conclude that, because there are varying times at which a nonemployee spouse may elect to begin receiving his or her portion of the community property interest in the employee spouse's pension benefits, the nonemployee spouse must first file a motion in the district court requesting immediate receipt of those benefits.
FACTS AND PROCEDURAL HISTORY
Howard Henson and Kristin Henson were married in September 1984. The parties filed for divorce in November 1992, and in July 1995, the district court entered a divorce decree resolving community property and support issues. Of interest in this case, the court applied the " time rule" and the " wait and see" approach, in accordance with Gemma v. Gemma, 105 Nev. 458, 778 P.2d 429 (1989), and Fondi v. Fondi, 106 Nev. 856, 802 P.2d 1264 (1990), to divide Howard Henson's PERS pension equally between the parties. The parties, however, did not provide to PERS, at that time, documentation or information so that Kristin's interest in Howard's PERS retirement account could eventually be disbursed.
At the request of Kristin and without notice to Howard, the district court entered a qualified domestic relations order (QDRO) pursuant to NRS 286.6768 on January 21, 1999, regarding Kristin's interest in Howard's PERS pension benefits. The QDRO recognized Howard as the participant in PERS, Kristin as the alternate payee, and the existence of the alternate payee's right to receive a portion of Howard's benefits. Paragraph 8, section B of the QDRO also mandated that PERS pay Kristin, in accordance with NRS 286.590(1), " FIFTY PERCENT (50%) multiplied by the number of the Participant's years of credited service in PERS earned during the marriage divided by the number of his total years of credited service." Under paragraph 8, Kristin was allocated a portion of Howard's pension, including a survivor beneficiary interest, upon a selection of Option 2 under NRS 286.590.
Paragraph 10 of the QDRO further provided that " [i]f the Participant dies before the Alternate Payee begins receiving benefits in accordance with the Plan selected and a distribution of contributions is available from the account of the Participant, the Alternate Payee shall receive 50 [percent] of the available distributed refund." Finally, paragraph 11 of the QDRO provided that the district court would retain " jurisdiction to amend th[e QDRO] for the purpose of establishing or maintaining its qualification, or for purposes of subsequent modification or amendment as required."
Howard has remarried, and the language in the QDRO precludes him from designating his current spouse ...