KRISTIN E. HENSON, 

Appellant, 

vs. 

HOWARD HALE HENSON, 

Respondent. 

No. 62654 

AL 

OCT 02 2614 

CL 

BY 

It .0i ti RA 

C it uE 

130 Nevi, Advance Opinion 71 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

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. 

Affirmed. 

Todd L. Torvinen, Reno; Richard F. Cornell, Reno, 

for Appellant. 

Rodney E. Sumpter, Reno, 

for Respondent. 

BEFORE THE COURT EN BANC.' 

OPINION 

By the Court, CHERRY, J.: 

In this appeal, we are asked to consider whether a 

nonemployee spouse is entitled to survivor benefits if, in a divorce decree, 

'The Honorable James W. Hardesty, Justice, voluntarily recused 

himself from participation in the decision of this matter. 

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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) 

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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 as his survivor 

beneficiary. Therefore in 2011, Howard filed a motion to modify the 

QDRO. Howard argued that the QDRO originally entered by the district 

court in 1999 did not effectuate the division in the divorce decree because 

it gave Kristin a survivor beneficiary interest. Kristin opposed the motion 

and moved for a judgment awarding her the community property pension 

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payments she could have received since the time Howard became eligible 

to retire. Kristin claimed that Howard was eligible to retire and receive 

his PERS benefits in June 2003 but he elected not to retire at that time, 

and therefore, he was required to pay her the portion of his PERS benefits 

that she would have received since June 2003. The district court granted 

Howard's motion to modify the QDRO and denied Kristin's motion for 

judgment. This appeal followed. 

DISCUSSION 

In resolving this appeal, we must consider whether the district 

court's amended QDRO was an impermissible modification of the divorce 

decree's division of community property. We further consider whether the 

district court erred when it denied Kristin's motion to reduce to judgment 

the amount she could have received as her community property interest in 

Howard's PERS pension benefits since he was eligible to retire in 2003. 

The amended QDRO was not an impermissible modification of the divorce 

decree's division of property 

The parties disagree over whether the divorce decree allowed 

Kristin to be named as Howard's survivor beneficiary, and thus, the 

parties disagree whether the district court's modifications to the QDRO 

impermissibly altered the divorce decree's property division. Kristin 

argues that the divorce decree intended her to be the alternate payee and 

the survivor beneficiary because the order specifically applied the "time 

rule" and "wait and see" approaches. Kristin further contends that NRS 

286.6703, the statute setting forth the requirements for a QDRO, permits 

a former spouse to be named as a survivor beneficiary and that NRS 

286.6768, which addresses the PERS requirements for survivor benefits, 

only requires that the employee spouse have 10 years of service at death, 

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not at the time the QDRO is entered. 2Howard argues that the divorce 

decree did not designate Kristin as the survivor beneficiary, and that the 

district court's order amending the QDRO effectuated the divorce decree. 3 

Howard further contends that the first QDRO did not conform to the 

divorce decree because the election of Option 2 under NRS 286.6768(1)(b) 

expanded Kristin's interest into a lifetime benefit and precluded him from 

designating his new spouse as his survivor beneficiary. 

2NRS 286.6768 states, in pertinent part, as follows: 

1. Except as otherwise provided in 

subsection 2 and as limited by subsection 4, the 

survivor beneficiary of a deceased member who 

had 10 or more years of accredited contributing 

service is entitled to receive a monthly allowance 

equivalent to that provided by: 

(b) Option 2 in NRS 286.590, if the deceased 

member had 15 or more years of service on the 

date of the member's death. 

3Howard also argues on appeal, and the district court found, that 

Kristin failed to serve him with proper notice when the QDRO was 

initially entered. We agree. NRCP 5(a) requires that "every written 

motion. . . , and every written notice, appearance, demand, offer of 

judgment, designation of record on appeal and similar paper shall be 

served upon each of the parties." And, while the district court entered the 

amended QDRO because it concluded that Howard did not receive proper 

notice or have time to respond when the QDRO was entered, that the 

QDRO contained legal and factual errors, and that PERS was enforcing 

the QDRO in a manner that was both inequitable and outside the scope of 

the divorce decree, "[t]his court will affirm a district court's order if the 

district court reached the correct result, even if for the wrong reason." 

Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. „ 245 P.3d 

1198, 1202 (2010). 

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The relevant portion of the divorce decree provides as follows: 

[Ti he PERS account is divided equally between 

the parties. Unless the parties agree otherwise, 

the pension will be divided in accordance with the 

"time rule" and the "wait and see" approach set 

forth in Gerund v. Gemma, 105 Nev. 458, 778 P.2d 

429 (1989) and Fondi v. Fondi, 106 Nev. 856, 802 

P.2d 1264 (1990). 

Because a district court's interpretation of a divorce decree 

presents a question of law, this court reviews such an interpretation de 

novo. See Ormachea v. Ormachea, 67 Nev. 273, 291-92, 217 P.2d 355, 364- 

65 (1950) (providing that a district court's construction and interpretation 

of the legal operation and effect of one of its divorce decrees presents a 

question of law); Nev. Classified Sch. Emps. Ass'n v. Quaglia, 124 Nev. 60, 

63, 177 P.3d 509, 511 (2008) ("We review questions of law de novo."); see 

also In re Georgakilas, 956 A.2d 320, 321 (N.H. 2008) ("In interpreting the 

meaning of a divorce decree, we review the decree de novo."). 

Pursuant to the "time rule" set forth in Gemma, the district 

court must state in the divorce decree what interest, if any, the 

nonemployee spouse is to receive in a nonvested retirement pension and 

must "direct[} when the interest shall be paid." 105 Nev. at 461-62, 778 

P.2d at 431. The "time rule" permits the nonemployee spouse to receive 

his or her community share of the employee spouse's pension based upon 

the percentage of time the employee spouse was married and earning the 

pension. 4 Id. at 461, 778 P.2d at 431. The "wait and see" approach 

4The community share of retirement benefits under the "time rule" 

is usually calculated by taking the actual pension plan, multiplying it by a 

fraction—the numerator is the number of months married and the 

denominator is total number of months worked and earning the pension— 

continued on next page... 

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dictates that the community receives "an interest in the pension 

ultimately received by the employee spouse, not simply the pension that 

would be recovered were the spouse to retire at the time of divorce." 

Fondi, 106 Nev. at 859, 802 P.2d at 1266 (citing Gemma, 105 Nev. at 462, 

778 P.2d at 432). Thus, the formula provided for under the "time rule" 

does not apply until the pension is distributed. Id. 

When modifying the QDRO here, the district court cited NRS 

125.155(1) in concluding that the value of the community property interest 

in the PERS pension benefits must be based upon the number of years 

Howard was employed and earning the pension and not on the value of 

"any estimated increase in the value" (quoting NRS 125.155(1)). The 

district court further reasoned that, pursuant to NRS 286.6768, Kristin 

could not have a survivorship interest in the pension because Howard did 

not accrue a survivor beneficiary interest during the marriage. Therefore, 

the amended QDRO provides that PERS is to pay Kristin "as if [Howard] 

selected 'Option 1' with regard to his pension benefit. However, [Howard] 

can choose a retirement option and beneficiary, upon retirement, with the 

benefit to [Kristin] being calculated based on an unmodified benefit." 

Initially, we note that the district court improperly relied on 

NRS 125.155(1) in amending the QDRO because that statute was not in 

effect when the divorce decree was entered. 5Therefore, we must consider 

...continued 

and then dividing the resulting number by two. Gemma v. Gemma, 105 

Nev. 458, 460 n.1, 461, 778 P.2d 429, 430 n.1, 431 (1989). 

5NRS 125.155 became effective on July 5, 1995, which was after the 

parties' divorce decree was entered in June 1995 but before entry of the 

QDRO in January 1999. 1995 Nev. Stat., ch. 576, § 1, at 1968. NRS 

125.155(3) provides that "Rif a party receives an interest in or an 

continued on next page... 

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whether the divorce decree awarded Kristin a survivor beneficiary interest 

because a QDRO must conform to the divorce decree. Shelton v. Shelton, 

201 S.W.3d 576, 580 (Mo. Ct. App. 2006). We have previously concluded 

that a former spouse is entitled to a percent of the pension "ultimately 

received by the employee spouse," Fondi, 106 Nev. at 859, 802 P.2d at 1266, 

and neither the divorce decree nor the QDRO here based its award on an 

"estimated increase in value." The divorce decree did not specifically 

award Kristin a survivor beneficiary interest; rather, the divorce decree 

specified that the pension would be "divided in accordance with the 'time 

rule' and the 'wait and see' approaches pursuant to Gemma and Fondi." 

Thus, Kristin would have only been entitled to a survivor beneficiary 

interest in Howard's pension under the divorce decree if we were to 

...continued 

entitlement to a pension or retirement benefit which the party would not 

otherwise have an interest in. . . if not for a [divorce] disposition ... , that 

interest or entitlement terminates upon the death of either party." The 

only exceptions to this rule are when, pursuant to "[a]n agreement of the 

parties[,] or. ... [a]n order of the court, a party who is a participant in 

[PERS] ... provides an alternative to an unmodified service retirement 

allowance." NRS 125.155(3)(a)-(b). Thus, under NRS 125.155(3), any 

interest in a PERS pension plan will terminate upon death unless a 

survivorship interest is specifically awarded. 

Nevertheless, because statutes apply prospectively unless clearly 

indicated otherwise by the Legislature, Madera v. State Industrial Ins. 

Sys., 114 Nev. 253, 257, 956 P.2d 117,120 (1998), and nothing in the 

legislative history suggests that the Legislature intended NRS 125.155 to 

apply retrospectively, NRS 125.155 does not apply here, and the division 

of the community property interests in the PERS pension benefits is 

controlled by the divorce decree. Therefore, the underlying issue of 

whether a former spouse can take a survivor beneficiary interest in a 

PERS pension plan only arises in divorce decrees entered before July 5, 

1995. 

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interpret the term "pension" in this case to also include a survivor 

beneficiary interest. We decline to do so. 

Pursuant to NRS 286.551, PERS first calculates the employee 

spouse's unmodified service retirement allowance—the amount the retired 

employee will receive monthly from PERS for the rest of his or her life. 

The employee spouse is permitted, as was the case in 1995, to select a 

number of alternatives to the unmodified service retirement allowance, 

some of which may include a survivor beneficiary interest. NRS 286.590. 

If the employee spouse selects an option with a survivor beneficiary 

interest, then the employee spouse's monthly retirement allowance 

decreases. See, e.g., NRS 286.590(1) (providing that an employee can 

choose a reduced monthly service retirement allowance that will continue 

to be paid to the employee's beneficiary after the employee's death). The 

employee spouse, however, is not required to select an option with a 

survivor beneficiary interest. See NRS 286.590. Thus, neither the 

employee nor the nonemployee spouse automatically receives a survivor 

beneficiary interest, and the only pension benefit the nonemployee spouse 

is guaranteed to receive is his or her community property interest in the 

unmodified service retirement allowance calculated pursuant to NRS 

286.551 and payable through the life of the employee spouse. 

In this situation, in order for the QDRO to effectuate the 

divorce decree, Kristin's community property interest in Howard's pension 

should have been calculated pursuant to the formula set forth in Gemma, 

105 Nev. at 461, 778 P.2d at 431. If Howard elects to choose an option 

that includes a survivor beneficiary other than Kristin, and therefore 

lower his monthly retirement allowance, it should have no impact on the 

amount Kristin receives as her portion of the community property interest 

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in Howard's PERS benefits. Because the divorce decree did not explicitly 

provide Kristin with a survivor beneficiary interest, she is not entitled to 

one, and thus, the original QDRO improperly designated Kristin as 

Howard's survivor beneficiary. Therefore, we conclude that the amended 

QDRO correctly effectuates the divorce decree's division of property. 6 

The district court did not err in denying Kristin's motion for judgment 

Kristin argues that the district court erred when it denied her 

motion to reduce to judgment the amount that she was entitled to receive 

of her interest in Howard's PERS pension benefits since 2003. She 

contends that Howard was required to pay her those benefits upon his 

retirement eligibility pursuant to Sertic v. Sertie, 111 Nev. 1192, 1194, 901 

P.2d 148, 149-50 (1995) (stating that an alternate payee former spouse 

may claim his or her interest in the employee spouse's pension when the 

employee spouse is eligible to retire). Howard argues that Sertic is 

inapplicable because Kristin was asking for arrearages in payments that 

Howard was not required to pay. 

This court has previously addressed when a nonemployee 

former spouse has a right to his or her share of the community property 

6Because we conclude that the district court's amended QDRO did 

not modify the parties' interests in the community property as provided in 

the divorce decree, we need not address Kristin's argument that the 

district court lacked jurisdiction to enter the amended QDRO. See 

generally In re Water Rights of the Humboldt River, 118 Nev. 901, 906, 59 

P.3d 1226, 1229 (2002) (explaining that a court has an inherent power to 

enforce its orders); see also Smith v. Smith, 100 Nev. 610, 614, 691 P.2d 

428, 431 (1984). Further, as the district court has jurisdiction to enter an 

order enforcing its previous orders, we need not address Kristin's 

argument regarding the timeliness of Howard's motion to modify the 

QDRO. 

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portion of the employee former spouse's pension and concluded that the 

nonemployee spouse may receive his or her share at the time of the 

divorce trial, when the employee spouse is eligible to retire even if the 

employee spouse does not retire, or when the employee spouse actually 

retires. Gemma, 105 Nev. at 460 n.1, 778 P.2d at 430 n.1; Fondi, 106 Nev. 

at 860, 802 P.2d at 1266; Sertic, 111 Nev. at 1194, 901 P.2d at 149. In 

Sertic, this court considered whether the district court erred when it 

valued and distributed to the nonemployee spouse his community property 

interest in the employee spouse's pension at the time of the divorce trial 

instead of valuing the pension as received by the employee spouse when 

she first became eligible to retire. 111 Nev. at 1194, 901 P.2d at 149. The 

Sertic court concluded that the district court may allow a nonemployee 

spouse to receive his or her community property interest in the pension 

plan at the time of the divorce trial if: (1) the district court can determine 

with reasonable certainty the party's present community share of the 

pension plan, (2) the district court can determine whether there are 

sufficient existing funds, and (3) the parties agree that the distribution 

would be the final distribution. Sertic, 111 Nev. at 1194, 901 P.2d at 149. 

Because in Sertic the district court failed to consider these requirements, 

this court remanded the matter to the district court, stating that, if the 

court determined that the requirements were not met, it 

may order distribution to [the nonemployee 

spouse] his community share of the pension as 

received by [the employee spouse] upon her first 

eligibility to retire. If she does not elect to retire 

when she first becomes eligible, she shall be 

obligated to pay to [the nonemployee spouse] what 

he would have received if she had retired. 

111 Nev. at 1194, 901 P.2d at 149. 

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In remanding, the Sertic court relied on this court's conclusion 

in Gemma that upon the employee spouse's eligibility to retire, "[the 

employee spouse] must pay to the [nonemployee former spouse], if [the 

nonemployee former spouse] so demands at that time and whether or not 

the [employee spouse] has retired. . . , the [nonemployee former spouse's] 

community property interest in the subject pension plan." 105 Nev. at 460 

n.1, 778 P.2d at 430 n.1 (emphasis added). Because the nonemployee 

spouse is required to demand payment if the employee spouse has yet to 

retire, the employee spouse does not have to pay the nonemployee spouse 

his or her interest in the pension plan until such demand is made. Id. 

Further, because the pension benefit at the time of the employee spouse's 

retirement will have likely increased, see Fondi, 106 Nev. at 860, 802 P.2d 

at 1266, the nonemployee spouse may choose to wait until the employee 

spouse retires to share in the increased value of the pension plan. See In 

re Marriage of Gillmore, 629 P.2d 1, 7 (Cal. 1981) (explaining that the 

nonemployee spouse may choose to wait and "thereby ensure some 

protection for the future and may be able to share in the increased value of 

the pension plan"). 

Therefore, the value of the pension plan is calculated at the 

time of distribution. Because the nonemployee spouse may elect to receive 

his or her community interest in the pension plan at different times, we 

now take this opportunity to clarify in what manner a former nonemployee 

spouse can elect to immediately begin receiving his or her portion of the 

employee spouse's pension benefits upon the employee spouse's retirement 

eligibility, and how the district court should determine the community 

property interest in the employee spouse's pension plan. 

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The California Supreme Court has concluded that a 

nonemployee spouse has no right to payment of his or her community 

interest in the employee spouse's pension benefits prior to making a 

motion for disbursement of these benefits. In re Marriage of Cornejo, 916 

P.2d 476, 479 (Cal. 1996). The Cornejo court considered four possible 

dates upon which the nonemployee spouse would be entitled to immediate 

payment of his or her share of the pension benefits: 

(1) the date of the employee spouse's eligibility to 

retire; (2) the date of a demand by the nonemployee spouse preceding the filing of a motion 

seeking immediate payment; (3) the date of the 

filing of such a motion; and (4) the date of the 

issuance of an order passing thereon. 

Id. The court reasoned that the employee spouse will be liable for pension 

payments to the nonemployee spouse on the date that the nonemployee 

spouse files a motion with the court seeking immediate payment of his or 

her portion of the benefits because the motion "clearly constitutes the nonemployee spouse's choice of immediate payment. And it clearly puts the 

employee spouse on notice." Id. The court concluded that filing the 

motion was a formal, unambiguous act, which would provide a fixed date 

from which the court could order direct immediate payment. Id. at 479-80. 

We are in agreement with California's approach to the 

distribution of a nonemployee spouse's portion of his or her community 

interest in an employee spouse's pension plan benefits. We thus conclude 

that the nonemployee spouse must file a motion in the district court 

requesting to immediately begin receiving payment of his or her portion of 

the employee spouse's pension benefits. The district court must then 

determine the present value of the employee spouse's pension plan 

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benefits, depending upon when the nonemployee makes his or her election, 

before determining the amount the nonemployee spouse will receive. 

In this case, Kristin never filed a motion in the district court 

requesting immediate payment of her portion of Howard's pension benefits 

before she moved for judgment based on Howard's failure to pay those 

benefits. 7Because Howard was under no duty to pay Kristin her portion 

of his pension benefits until she filed a motion to receive her share, the 

district court did not err in denying Kristin's request to reduce to 

judgment the amount of Howard's PERS pension benefits she would have 

received since June 2003. 

CONCLUSION 

We conclude that the district court's amendment of the QDRO 

was not an impermissible modification since it correctly effectuates the 

divorce decree's division of property. We also clarify that the nonemployee 

spouse must file a motion in the district court requesting immediate 

payment of his or her portion of the employee spouse's pension benefits 

before he or she is eligible to receive payment, if the employee spouse has 

yet to retire. Thus, we conclude that the district court correctly denied 

Kristin's motion for judgment because Howard was under no duty to pay 

Kristin her portion of his pension benefits until Kristin filed a motion 

requesting immediate payments. 8 

7Based on our conclusions in this opinion, we do not address 

Howard's arguments regarding Kristin's miscalculation of her portion of 

his pension. 

sHaving considered the parties' remaining arguments concerning 

waiver, the lack of an evidentiary hearing, Howard's failure to join PERS 

as a party to his motion, and the parties' prior settlement agreement, we 

conclude that they lack merit. 

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Accordingly, we affirm the district court's order modifying the 

QDRO and denying Kristin's motion for judgment. 

We concur: 

Gibbons 

CA. 

1 IC 

Pickering 

tiCtic 

Parraguirre 

J. 

, J. 

Saitta 

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