ROBERT J. POWERS, Appellant, v. CECELIA ANN POWERS, Respondent
Powers v. Powers
Steffen and Springer, JJ., concur.
ROBERT J. POWERS, Appellant, v. CECELIA ANN POWERS, Respondent.
ROBERT J. POWERS, Appellant, v. CECELIA ANN POWERS, Respondent.
No. 18804
September 6, 1989
779 P.2d 91
[Rehearing denied November 30, 1989]
John Peter Lee and Daniel Marks, Las Vegas, for Appellant.
Ecker & Standish, Las Vegas, for Respondent.
OPINION
By the Court,
Young, C. J.:
On June 2, 1962, appellant Robert Joseph Powers and respondent Cecelia Ann Powers were married in the State of New York. In 1968, Robert began working for the New York City Department of Corrections. In 1974, Robert underwent an operation to remove a cyst from his knee. During the operation a nerve was severed in his knee causing him to have a condition known as drop foot. As a result of the injury, a medical board determined that Robert was disabled and he was required to retire from the Department of Corrections in 1979.
Robert was not eligible for retirement benefits, but was eligible for disability retirement benefits. Several different disability retirement options were available. Robert and Cecelia chose the option that paid a benefit for Robert's life. The Powers then moved to Las Vegas. In 1987, Cecelia filed for divorce. The Powers could not agree on the distribution of their assets, including whether the disability retirement benefits were community or separate property and whether Cecelia should receive spousal support.
On December 15, 1987, the district court filed its decision regarding the character of the disability retirement benefits and spousal support. The district court reasoned that the payments appeared to be substantially related to Robert's employment. The district court noted that a portion of the payment could be viewed as compensation for lost earnings, but could not determine the amount. The district court found that the persuasive case law characterized benefits which were products of employment as community property. The district court relied on Simmons v. Simmons, 568 S.W.2d 169 (Texas Civ.App. 1978) and Guy v. Guy, 560 P.2d 876 (Idaho 1977). The district court stated that had it not characterized the disability retirement benefits as community property, it would have awarded alimony. This appeal followed.
Robert contends that New York law should govern whether the disability retirement benefits are divisible upon divorce, because the benefits were earned and awarded in New York. A party may not raise a new theory for the first time on appeal, which is inconsistent with or different from the one raised below. See Tupper v. Kroc, 88 Nev. 146, 494 P.2d 1275 (1972). Robert argued below that the disability benefits were his separate property under New York law and that New York law was in accord with community property laws.
Community property jurisdictions have generally determined that disability retirement benefits may contain two components. New York law also recognizes that disability benefits may contain two components. See Musumeci v. Musumeci, 506 N.Y.S.2d 629 (N.Y.Sup.Ct. 1988). In the instant case, the district court determined that Robert's disability benefits contained two components, one of which was a retirement benefit. Robert did not provide the district court with any authority to the contrary. Robert may not argue for the first time on appeal that the disability benefits did not contain a retirement component, which is subject to distribution upon divorce.
Accordingly, we affirm the decision of the district court.
Steffen and Springer, JJ., concur.
The Honorable Robert E. Rose, Justice, voluntarily recused himself from the consideration of this case and took no part in its disposition.
See In re Marriage of Saslow, 710 P.2d 346 (Cal. 1985) (holding that disability benefits may be part replacement of earnings and part retirement); In re Marriage of Kittleson, 585 P.2d 167 (Wash.App. 1978) (holding that disability benefits may be compensation for injury and part retirement); In re Marriage of Anglin, 759 P.2d 1224 (Wash.App. 1988) (holding that disability benefits may be part replacement of earnings and part retirement); In re Marriage of Kosko, 611 P.2d 104 (Ariz.App. 1980) (recognizing that disability benefits may be part retirement and part replacement of earnings).