Carrell v. Carrell, 22271
| Decision Date | 01 September 1992 |
| Docket Number | No. 22271,22271 |
| Citation | 108 Nev. 670,836 P.2d 1243 |
| Parties | Aurora CARRELL, Appellant, v. John CARRELL, Respondent. |
| Court | Nevada Supreme Court |
Gerald W. Hardcastle, Las Vegas, for appellant.
Simmons, Madson & Snyder, Las Vegas, for respondent.
On April 20, 1989, respondent, John Carrell, filed for a divorce from appellant, Aurora Carrell. Following a trial on July 30, 1990, the district court entered a decree of divorce and divided the Carrells' community property, including their respective pensions. Aurora disagreed with the district court's property division and subsequently filed a motion for a new trial. Although the district court denied Aurora's motion, it amended its findings of fact and awarded an additional $7,696.69 to Aurora. The district court, however, also ordered Aurora to pay John $6,001.00 for post-trial attorney's fees.
On appeal, Aurora contends that the district court erred in dividing the Carrells' pensions because it erroneously characterized a portion of her share of the pensions as spousal support. Specifically, Aurora points out that the court awarded each party its own pension and, since Aurora's pension was worth less than John's pension, subsequently required John to pay "spousal support" to Aurora in an amount that would result in a fifty/fifty division of the pensions. We agree with Aurora and conclude that the district court erred when it characterized a portion of Aurora's share of the pensions as spousal support.
In Walsh v. Walsh, 103 Nev. 287, 738 P.2d 117 (1987), we held that retirement benefits earned during marriage are community property. As community property, retirement benefits are afforded certain rights which do not attach to spousal support awards. Specifically, community property is not subject to future modification whereas spousal support can be modified upon a showing of changed circumstances, remarriage, or death. NRS 125.150(5), (7). Consequently, the district court erred when it characterized Aurora's community property as "spousal support," thereby subjecting it to possible future modification.
Aurora also contends that the district court abused its discretion when it awarded John $6,001.00 in attorney's fees for post-trial proceedings. We agree. Under NRS 125.150(3), a district court may, in a divorce action, award reasonable attorney's fees to either party. Such an award lies within the sound discretion of the district court and will not be overturned on appeal absent an abuse of discretion. Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991). If the district court awards attorney's fees but makes no findings regarding the award, this court must rely on an examination of the record to determine if the district court has abused its discretion. Schouweiler v. Yancey Co., 101 Nev. 827, 712 P.2d 786 (1985).
In the present case, the district court awarded John $6,001.00 but made no specific findings regarding the award; after reviewing the record, we conclude that the award is not supported. First, we note that in John's opposition to Aurora's motion...
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Wolff v. Wolff
...117, 117 (1987), we stated that "retirement benefits earned during the marriage are community property." In Carrell v. Carrell, 108 Nev. 670, 671, 836 P.2d 1243, 1244 (1992), we were faced with a similar situation as presented by the case at bar. In Carrell, recognizing that the wife's pens......