Schatz v. Schatz ( 2013 )

 from respondent's military retirement benefit. On March 15, 2012, the
district court dismissed the motion with prejudice on the basis that the
court lost jurisdiction because neither party had resided in Nevada since
October 2011. The court stated that the parties may seek the requested
relief in the county of the state where they reside. This appeal followed.
In her civil proper person appeal statement, appellant
contends that the district court improperly dismissed the entire divorce
action, and erred in failing to acknowledge the omitted asset. Appellant
further contends that the district court retained jurisdiction over the
matter and that Nevada was the most convenient forum to resolve the
issue. Appellant does not dispute that neither party resides in Nevada.
Initially, we take this opportunity to address appellant's
concern that the district court's order improperly dismissed the entire
divorce decree. Although the order refers to the "case" being dismissed
with prejudice, it is clear that the court intended to dismiss appellant's
motion, and did not vacate the divorce decree. Thus, the divorce decree
remains in effect.
Further, having reviewed the record, we conclude that the
district court properly dismissed the motion to divide the military pension.
It appears that the military pension was an omitted asset under the
divorce decree. In fact, in her motion, appellant asserted that the pension
was an omitted asset and requested that respondent be ordered to execute
a Qualified Domestic Relations Order to divide the pension under 10
U.S.C. § 1408(c)(4) (2009). An omitted asset is subject to division by way
of an independent action. See Arnie v. Arnie, 106 Nev. 541, 796 P.2d 233(1990). A state court has jurisdiction to divide a military retirement
benefit if the military spouse is domiciled in the state, is a resident of the
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state, or consents to the court's jurisdiction. See 10 U.S.C. § 1408(c)(4)
(2009). At the time the motion was filed, respondent no longer lived in
Nevada. Moreover, respondent's consent to the initial divorce proceeding
does not constitute consent to jurisdiction over the division of an omitted
asset in an independent action brought in Nevada. See Messner v.
District Court, 104 Nev. 759, 761, 766 P.2d 1320, 1321 (1988) (recognizing
that a Nevada court may not assert jurisdiction in an action to divide a
military benefit based on the military member's consent to jurisdiction in
a separate divorce proceeding). Thus, appellant's remedy is by way of an
independent action to divide the omitted asset in the state where
respondent resides. As the district court properly dismissed the motion
for lack of jurisdiction, we
ORDER the judgment of the district court AFFIRMED.
,J
Hardesty
Pkok4
Parraguirre
Ckt
Cherry
cc: Hon. Jennifer Elliott, District Judge, Family Court Division
Nancy Marie Schatz
Robert A. Schatz
Eighth District Court Clerk
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