Columnist Sandra Thompson: Jurisdiction at issue in benefits dispute

Sandra Thompson

Friday, April 20, 2001 | 3:24 a.m.

Sandy Thompson is vice president/associate editor of the Las Vegas Sun. She can be reached at 259-4025 or e-mail at thompson@lasvegassun.com

DOES A FAMILY COURT judge have the right to change the designated beneficiary of survivor pension benefits if the plan does not allow it?

Janis Kester says no, and hopes a federal judge will agree. The Henderson woman last week filed suit in U.S. District Court against Family Court Judge Bob Gaston and others. She contends the judge had no jurisdiction to remove her as the beneficiary of her deceased ex-husband's survivor benefits.

The suit is the latest legal action in Janis' fight for $700 a month in survivor benefits she says are irrevocably hers under federal law and according to the pension plan's own rules.

The benefits dispute began after she and Lupe Carmona were divorced in 1997. At the time, Lupe was retired and receiving pension benefits. According to the divorce decree, Lupe's two pensions and Janis' pension were their sole, separate properties. But the decree did not address Lupe's survivor benefits, which he had elected in 1992 to go to Janis, then his wife, after his death.

A few weeks after the divorce, Lupe remarried and wanted his new wife, Judy, to be beneficiary of the survivor benefits. However, the pension plan would not allow the change since Lupe already was retired and receiving his pension. Lupe hired Marshal Willick, a Las Vegas attorney considered in legal circles to be an expert in pension benefits, to ask Gaston to order the change.

Before the case could be decided, Lupe died. Judy vowed to continue the fight to be named beneficiary, according to Lupe's wishes. A day after Lupe's death, Gaston signed an order telling Janis to turn over the expected survivor benefits to Judy. Janis refused, saying the plan did not allow the change. Gaston then ordered that the benefits be placed in a trust for Judy.

Janis contends Gaston has no jurisdiction to decide pension benefits because they are covered by federal law. A U.S. Supreme Court decision last month appears to support her position. The high court said state laws cannot divert a deceased person's employee benefits to someone other than the designated beneficiary. The justices added that federal law governing employee benefits plans takes precedence over state law.

Janis also questions the probate actions in the case. Judy is the executor of Lupe's estate. Although she is a resident of Missouri, Willick filed a probate action here in which the sole assets were Janis' survivor benefits. In what she called an unusual move, Janis said Gaston took control of the probate case, transferring it from the regular probate judge and probate court to Family Court. The probate judge, District Judge Lee Gates, later reassigned the probate action back to his own department.

Willick says it's not unusual to consolidate cases involving the same litigants. That's the idea behind the "one family, one judge" policy approved by the Legislature for Family Court.

The final straw in the case was when Gaston ordered Janis to pay $15,000 in attorney's fees to Willick. This put her over the financial edge; she had amassed $50,000 in legal fees. Janis filed for bankruptcy protection and also filed an appeal with the Nevada Supreme Court. She filed a Family Court motion asking Gaston to stay any further proceedings in the case pending a review by the Supreme Court. Gaston denied the motion and assessed her $300 more in fees -- even though she says he knew she filed for bankruptcy protection.

"I've lost heart with the justice system in this state," Janis says.

Also named in Janis' federal lawsuit are Willick, Judy, the pension plan and others. She is seeking civil damages in excess of $75,000 and to recover the survivor benefits.

A spokesman for Gaston says the judge cannot comment on pending litigation. According to a review of past hearings in the case, the judge believed he could order the beneficiary changed because it was Lupe's wish.

Willick says the case has been "grossly overlitigated," adding that Janis' attorney has attempted to litigate the case "in every court -- Family Court, Probate Court, Bankruptcy Court, the Nevada Supreme Court and now federal court."

Willick considers the suit harassment.

"You don't sue a judge if you don't like a decision; you appeal it," he says.