Mack v. Estate of Mack

• Decision Date: 26 March 2009
• Docket Number: No. 49754.,49754.
• Citation: 206 P.3d 98
• Parties: Darren Roy MACK, Appellant, v. ESTATE OF Charla MACK, Respondent.
• Court: Nevada Supreme Court

206 P.3d 98

Darren Roy MACK, Appellant, v. ESTATE OF Charla MACK, Respondent.

No. 49754.

Supreme Court of Nevada.

March 26, 2009.

Law Offices of Mark Wray and Julia Vohl Islas and Mark Wray, Reno, for Appellant.

Kreitlein & Walker, Ltd., and Egan K. Walker, Reno, for Respondent.

BEFORE THE COURT EN BANC.¹

OPINION

By the Court, CHERRY, J.:

In this appeal we address four issues. First, we will examine whether we may take judicial notice of the outcome of proceedings in which one spouse was adjudged to have murdered the other. Next, we will discuss whether a nunc pro tunc order² was appropriate in this case when one spouse died before the oral record was memorialized in an order, and we examine whether the procedure of entering the oral order nunc pro tunc was appropriate and the merits of the underlying order. We next address whether the district court issued a Qualified Domestic Relations Order (QDRO) during Charla's lifetime. Last, we will discuss the effect of the Employee Retirement Income Security Act of 1974 (ERISA) on the district court order being appealed, namely, whether the order is a QRDO under ERISA and whether ERISA preempts application of Nevada's slayer statute.

We conclude that: (1) we may take judicial notice of appellant Darren Mack (Darren) being adjudged his wife Charla Mack's (Charla) killer, (2) the nunc pro tunc order was proper to memorialize Judge Weller's oral orders, (3) the district court properly issued the QDRO during Charla's lifetime, and (4) Nevada's slayer statute is not preempted by ERISA. As such, we affirm the district court's order.

FACTS AND PROCEDURAL HISTORY

This is an appeal of a district court's nunc pro tunc order memorializing an oral order entered by the former presiding judge, Judge Weller, in the divorce of Charla and Darren. Charla and Darren were married on May 13, 1995, in Lake Tahoe, California. Their union produced one child, Erika Nicole Mack, born on December 22, 1997. Charla filed the initial divorce complaint on February 8, 2005. Darren filed an answer and counterclaim on March 23, 2005. One of the main areas of contention between Charla and Darren was the distribution of property upon their divorce.

On January 9, 2006, the district court held a hearing on the issue of property settlement. During the hearing, the district court recited several oral orders. In part, the district court mandated that within 48 hours of the agreement being reduced to writing, Darren must pay Charla $480,000; of that amount, $50,000 was made available to be used for whatever purpose Charla desired, with the balance going towards the purchase of a vehicle and a home for herself. The district court also mandated that a QDRO was to be executed, which would result in Charla receiving spousal support from Darren's pension fund in the amount of $10,000 per month for a period of five years.

The court also entered several orders regarding certain other issues. The only issue worthy of note is as follows: releases would be signed between and among Charla, Darren's mother Joan Mack (Joan), and the entities owned by Darren and Joan—Palace, Mack & Mack I, and Mack & Mack II— waiving their respective rights to sue.

At the conclusion of the court's oral orders, Darren stated that he needed to take the agreement "to the people I'm borrowing it from and I can get it within forty-eight hours. I don't have any money." The court approved and asked that Charla's attorney, Shawn Meador, write up the agreement by January 20, 2006, so that the parties could sign it. Thereafter, the court paused the proceedings to ensure that each spouse had the opportunity to discuss the terms of the agreement with their counsel.

Finally, the court canvassed the parties as to their understanding of the court's order. Because the issue of understanding is at the heart of this appeal, we include the entire colloquy:

THE COURT: All right.

Mr. Mack, have you had an opportunity to discuss this property agreement that we've been talking about here on the record with your attorney to the full extent that you would like?

MR. MACK: Yes.

THE COURT: Do you have any remaining questions?

MR. MACK: I don't, your Honor.

THE COURT: Is there anything you wish to add?

MR. MACK: Huh-uh. No, sir.

THE COURT: Is there anything you wish to subtract?

MR. MACK: No.

THE COURT: Do you agree to be bound by this agreement?

MR. MACK: I do.

THE COURT: Ma'am?

MRS. MACK: Yes.

THE COURT: Mrs. Mack, have you heard the entire agreement spoken on the record?

MRS. MACK: I have.

THE COURT: Do you understand it?

MRS. MACK: Yes, I do.

THE COURT: Have you had an opportunity to discuss it with your attorney to the full extent that you would like?

MRS. MACK: Yes, I have.

THE COURT: Do you have any remaining questions?

MRS. MACK: Let me just check. Let me just check, look at this. (Reading.)

No.

THE COURT: Is there anything you would like to add?

MRS. MACK: No.

THE COURT: Is there anything you would like to take away?

MRS. MACK: No.

THE COURT: Do you agree to be bound?

MRS. MACK: Yes.

THE COURT: Okay.

Next the court ensured that counsel had a clear understanding of the agreement and adequately informed their clients about the agreement.

THE COURT: ...

Counsel for Mr. Mack, have you heard the agreement?

MR. SHAW: I have, your Honor.

THE COURT: Okay.

Do you think it is in your client's best interests to enter into this agreement?

MR. SHAW: Yes.

THE COURT: Okay.

Counsel for Mrs. Mack, have you heard the entire agreement?

MR. MEADOR: I have, your Honor.

THE COURT: Do you think it's in your client's best interests to enter into this agreement?

MR. MEADOR: Yes, I do.

THE COURT: Then this agreement is accepted by the Court and shall be the order of the Court and shall be binding on the parties.

Following the hearing, each party submitted a proposed order, and the proposed orders were inconsistent with each other. Charla filed a formal objection on the record in order to preserve her objections to Darren's proposed order. Among other issues, Charla objected to Darren's post-hearing contention that he did not have authority to bind Palace or Joan to a release agreement; Charla contended that if Darren did not have the authority to make such an agreement at the time, he should not have indicated he did.

In turn, Darren's attorney, Jan Shaw, filed an affidavit in response to Charla's formal objection. In his affidavit, Shaw conceded that the parties submitted different versions of a written form of the agreement to the court and asserted that the problem was whether Joan, Palace, and the Mack & Mack entities would or would not sign waivers and releases of all claims against Charla, with Charla waiving the same. Moreover, Shaw attested that, "[t]he parties have done all that they are required to do, and your Affiant believes both assume this case is settled. Certainly it is the belief of [Darren] that this case is settled; that there is a binding agreement between the parties that he is to honor." Finally, Shaw contended that, "all the Plaintiff [Charla] had to do was get appropriate releases and waivers to counsel for the non-parties, do so promptly, and determine whether or not they were going to be executed ... [Charla's contentions have] nothing to do with the Defendant [Darren] who wanted this case settled, who believes it is settled, and who is prepared to comply with the settlement."

Thereafter, Charla filed an emergency motion for order to show cause or, in the alternative, to enforce the settlement agreement, motion for order shortening time to respond, and a motion for an award of attorney fees and costs. In her motion, Charla argued that Darren was carrying out the exact threat he previously posed to her, which was to create delay and problems post-settlement and to force Charla to spend as much as possible out of the settlement awards on attorney fees and costs. Further, Charla argued that there was no support in the record that the responsibility for procuring waivers from Joan, Palace, and the Mack & Mack entities was Charla's obligation, although she diligently pursued obtaining the waivers.

Darren responded via another affidavit filed by Shaw on February 15, 2006. Darren contended that the proposed written orders of both parties clearly stated that the waivers are an issue between Charla and the third parties of Joan, Palace, and the Mack entities, without Darren's involvement.

Thereafter, several motions were filed by both parties. Charla filed a notice of acceptance of settlement and request for entry of order. In her motion, Charla asked that the court finalize the settlement, with Charla agreeing to waive the requirement that Joan and Palace dismiss their lawsuits³ and, in turn, Charla would reserve any claims or defenses she may have against Joan and Palace because they seemed unwilling to enter into mutual waivers and releases. However, Charla also offered that if Joan and Palace were willing to sign the releases, she would honor that part of the agreement and in turn execute waivers. Darren filed an objection to Charla's request for entry of order on the basis that: (1) the offer of settlement was an earlier version of a settlement offer that was no longer in Darren's best interest; (2) the motion did not comply with the Nevada Rules of Civil Procedure, the District Court Rules, or the Local Rules of Practice for the Second Judicial District Court as to motion pleading; and (3) the court was without jurisdiction to issue the requested relief based on caselaw. Charla thereafter replied, refuting Darren's claims.

The district court held a hearing regarding the issues hindering settlement on May 24, 2006. At this hearing, Judge Weller reaffirmed his oral order of January 9, 2006. As to the issue regarding settlement of claims between Charla and Joan, Palace, and the Mack & Mack entities, the court stated that it read the settlement to be as follows:

That there's a requirement that...