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Kilgore v. Kilgore

Supreme Court of Nevada

October 3, 2019

RICHARD KILGORE, Appellant/Cross-Respondent,
v.
ELENI KILGORE, Respondent/Cross-Appellant.

          Appeal and cross-appeal from orders resolving a motion to allocate omitted assets and modifying a divorce decree as it relates to PERS retirement benefits. Eighth Judicial District Court, Family Court Division, Clark County; Cheryl B. Moss, Judge.

          Law Office of Betsy Allen and Betsy Allen, Las Vegas, for Appellant/Cross-Respondent.

          Page Law Office and Fred Page, Las Vegas, for Respondent/Cross-Appellant.

          BEFORE PICKERING, PARRAGUIRRE and CADISH, JJ.

          OPINION

          PARRAGUIRRE, J.

         In this appeal, we review the district court's distribution of community property upon Richard Kilgore and Eleni Kilgore's divorce. Specifically, we consider whether the district court abused its discretion or' otherwise erred when it concluded that Eleni was entitled to her community property share of Richard's pension benefits even though Richard had not yet retired, reduced this amount to judgment, and ordered Richard to pay Eleni a monthly amount it deemed fair. We also consider whether the district court erred when it concluded that Richard's vacation and sick pay were omitted from the divorce decree and thereafter divided them equally between Richard and Eleni.

         We hold that a district court has significant discretion when determining whether to grant or deny a non-employee spouse's request for pension payments before the employee spouse has retired and conclude that the district court did not abuse that discretion here. Further, the district court did not err in considering the omitted assets and dividing them equally between the parties.

         FACTS

         Richard Kilgore and Eleni Kilgore were married in December 1992. During their marriage, both worked for Clark County-Richard as a marshal and Eleni as a teacher-and received retirement benefits through the Nevada Public Employees' Retirement System (PERS). They divorced in March 2013, and the divorce decree provided for the division of each party's PERS benefits in accordance with applicable caselaw.[1] The decree did not address vacation or sick pay earned and accrued during the marriage.

         In March 2015, Eleni moved the district court to compel Richard to begin paying her share of his PERS benefits because he had become eligible for retirement. She also requested a one-half interest in Richard's vacation and sick pay earned and accrued during their marriage, noting that such assets were omitted from the divorce decree. In June 2015, the court temporarily denied Eleni's request for payment because Richard had been terminated from his position as a marshal and earned no other income. The court also deferred resolving the vacation and sick pay issue.

         Also in June 2015, the district court entered a qualified domestic relations order (QDRO) dividing Richard's PERS benefits and a QDRO dividing Eleni's PERS benefits. The QDRO dividing Richard's PERS benefits recognized Richard as the participant in PERS and Eleni as the alternate payee. It "assign[ed] to Eleni [ 1 the right to receive a portion of the benefits payable to a plan Participant" "at the first possible date."

         Richard was reinstated as a marshal in January 2016. Shortly thereafter, the district court ordered him to start paying Eleni $1, 200 per month toward her share of his PERS benefits. Richard argued that he planned to work until his PERS account reached full maturity and should not be obligated to pay until he retires. Over the course of 2016 and 2017, the court held a series of evidentiary hearings and status checks to resolve the dispute, and spent a significant amount of time reviewing Richard's financial situation.

         In July 2017, the district court concluded that because Richard was eligible to retire in 2011, Eleni was entitled to her share of Richard's PERS benefits even though he had not yet retired. It acknowledged, however, that PERS would not pay Eleni anything until Richard retired. It therefore calculated the amount Richard owed to Eleni, retroactive to the date of Eleni's motion in March 2015, and reduced that sum to judgment, collectible by any lawful means. Having extensively reviewed Richard's financial situation, it ordered Richard to pay Eleni $350 per month toward the judgment, instead of the $2, 455 per month it calculated Eleni would have received from PERS had Richard retired.[2] The district court also ordered Richard to pay Eleni for vacation and sick pay that he earned during their marriage.[3] Richard's timely appeal and Eleni's cross-appeal followed.

         DISCUSSION

         Richard challenges the district court's finding that Eleni is entitled to PERS benefits even though he has not yet retired. On cross-appeal, Eleni challenges the district court's reduction of monthly payments. Richard also challenges the district court's ruling on vacation and sick pay.

         This appeal requires review of the district court's distribution of community property and its factual findings and conclusions of law. We review the district court's distribution of Richard's PERS benefits and vacation and sick pay deferentially for an abuse of discretion. See Wolff v. Wolff, 112 Nev. 1355, 1359, 929 P.2d 916, 919 (1996). "This court's rationale for not substituting its own judgment for that of the district court, absent an abuse of discretion, is that the district court has a better opportunity to observe parties and evaluate the situation. Id. Further, we review a district court's factual findings deferentially and will not set them aside unless they are clearly erroneous or not supported by substantial evidence. Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). Conclusions of law, however, we review de novo. Dewey v. Redev. Agency of Reno, 119 Nev. 87, 93, 64 P.3d 1070, 1075 (2003).

         The district court's distribution of ...


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