Andrean v. Secretary of US Army, 93-2172-JWL.

• Decision Date: 06 December 1993
• Docket Number: No. 93-2172-JWL.,93-2172-JWL.
• Citation: 840 F. Supp. 1414
• Court: U.S. District Court — District of Kansas
• Parties: Donna Margaret ANDREAN, Plaintiff, v. SECRETARY OF the UNITED STATES ARMY; R. Marie Scarborough, Chief, Garnishment Branch Office of General Counsel, Defense, Finance & Accounting Service; and Charles M. Andrean, Defendants.

840 F. Supp. 1414

Donna Margaret ANDREAN, Plaintiff, v. SECRETARY OF the UNITED STATES ARMY; R. Marie Scarborough, Chief, Garnishment Branch Office of General Counsel, Defense, Finance & Accounting Service; and Charles M. Andrean, Defendants.

No. 93-2172-JWL.

United States District Court, D. Kansas.

December 6, 1993.

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John C. Tillotson and Danny K. Wiley, Murray, Tillotson & Nelson, Chtd., Leavenworth, KS, for plaintiff.

Robert A. Olsen, Office of U.S. Atty., Kansas City, KS and Ed Schneeberger, Leavenworth, KS, for defendants.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

This matter is before the court on the motion of defendants Secretary of the Army and R. Marie Scarborough, Chief, Garnishment Branch Office of General Counsel, Defense Finance and Accounting Service, to dismiss or in the alternative for summary judgment (Doc. # 19), the motion of defendant Charles M. Andrean to dismiss (Doc. # 16)¹, and the motion of plaintiff Donna Margaret Andrean, for summary judgment (Doc. # 22). Plaintiff has sued the Secretary of the United States Army and Ms. Scarborough in their official capacities, and asks the court to compel these officials to enforce the provisions of the Federal Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408 ("FUSFSPA") requiring the payment of military retirement pay in compliance with state court orders. The court finds plaintiff is entitled to the relief sought as a matter of law, and, therefore, grants plaintiff's motion for summary judgment (Doc. # 22) and denies the defendants' motions (Docs. # 19 & # 16).

I. Facts

The facts of this case are, for the most part, undisputed, and the following facts are uncontroverted for purposes of this motion. On August 24, 1984, The District Court of Leavenworth County, Kansas issued a journal entry of judgment and decree of divorce ordering the dissolution of the marriage of plaintiff, Donna Andrean, and defendant, Charles M. Andrean. As part of the decree, the court ordered that one-third of Mr. Andrean's retirement benefits be set aside and become the sole and separate property of Ms. Andrean.

Less than a week before the court's decree, on August 19, 1984, the Kansas Court of Appeals, in Grant v. Grant, 9 Kan.App.2d 671, 685 P.2d 327 (1984), held that military retirement income was not marital property with a determinable value under Kansas law, and, therefore, was not subject to division in a divorce decree. Petition for review of the decision was denied by the Kansas Supreme Court on October 2, 1984.

Mr. Andrean did not appeal the Leavenworth County District Court decision, but, rather moved for relief from the judgment under K.S.A. 60-260(b) based on the Grant decision. On January 28, 1985, the Leavenworth Court denied Mr. Andrean's motion stating:

The Court finds that, since the petitioner did not file a motion for new trial or a notice of appeal, petitioner made a free, calculated and deliberate choice not to appeal the judgment ... and that he has failed to establish any of the reasons set forth in K.S.A. 60-260(b) authorizing the Court to relieve a party from a final judgment.

In 1989, Kansas overruled Grant, and under current Kansas law, military retirement pay is considered marital property and is subject to division upon the dissolution of a marriage. In the Matter of the Marriage of Harrison, 13 Kan.App.2d 313, 769 P.2d 678, 680 (1989).

Mr. Andrean retired from the United States Army in November of 1992. Ms. Andrean subsequently served the Secretary of the Army with the Leavenworth County District Court's order and requested direct payments of Mr. Andrean's military retirement pay pursuant to the provisions of FUSFSPA, 10 U.S.C. § 1408. The Secretary denied the plaintiff's request for direct payments on the basis that a division of retired pay, awarded in Kansas before 1987, was not enforceable under Kansas law, and this action ensued.

II. FUSFSPA

In 1982, Congress enacted the Federal Uniformed Services Former Spouses' Protection Act in response to the United States Supreme Court ruling in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), that federal law prohibited the division of military retirement pay in a divorce action. See Goad v. United States, 24 Cl.Ct. 777 (1991), cert. denied, ___ U.S. ___, 113 S.Ct. 814, 121 L.Ed.2d 687 (1992). The FUSFSPA specifically provides that "a court may treat disposable retired or retainer pay payable to a member ... either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court." 10 U.S.C. § 1408(c)(1).

Although the FUSFSPA does not require the division of military retirement benefits, it does provide a mechanism to enforce a valid state court order declaring such a division. See In re MacMeeken, 117 B.R. 642, 646 (D.Kan.1990). The FUSFSPA requires the federal government to make direct payments to a former spouse who presents to the Secretary of the relevant military service a state court order granting him or her a portion of the military retiree's disposable retired pay. 10 U.S.C. § 1408(d)(1). Section 1408(d)(1) reads in full:

After effective service on the Secretary concerned of a court order providing for the payment of child support or alimony or, with respect to a division of property, specifically providing for the payment of an amount of the disposable retired or retainer pay from a member to the spouse or a former spouse of the member, the Secretary shall make payments (subject to the limitations of this section) from disposable retired or retainer pay of the member to the spouse or former spouse in an amount sufficient to satisfy the amount of child support and alimony set forth in the court order and, with respect to a division of property, in the amount of disposable retired or retainer pay specifically provided for in the court order....

The parties contest whether plaintiff properly and effectively served a court order on the Secretary as required by § 1408(d)(1). Specifically, they disagree as to whether the order of the Leavenworth County District Court is a court order "issued in accordance with the laws of the jurisdiction of that court" as required by § 1408(a)(2)(A).² Plaintiff argues that there was a final judgment in accordance with the law of Kansas because Mr. Andrean failed to appeal that judgment, and a subsequent denial of his motion for relief of that judgment ends the day as far as a determination of the issue of that judgments' validity under Kansas law. Defendants counter that the Kansas district court had no subject matter jurisdiction to divide the retirement pay, that the judgment is void and subject to collateral attack at any time, and as a result the judgment was not rendered in accordance with Kansas law.

III. JURISDICTION

Before a court can undertake to examine the merits of a plaintiff's claim, it must have subject matter jurisdiction. Mr. Andrean, as well as the Secretary of the Army and Ms. Scarborough, argue that plaintiff's complaint should be dismissed because this court lacks such jurisdiction to entertain plaintiff's claim for relief. The court disagrees.

In her complaint, Ms. Andrean alleges that this court has jurisdiction pursuant to the Mandamus Act, 28 U.S.C. § 1361. The Mandamus Act, however, merely serves to broaden the venue in which actions against United States officers and agents can be brought, and cannot be relied upon as an independent basis of federal court jurisdiction. Craig v. Colburn, 414 F.Supp. 185, 193 (D.Kan.1976). "It does not confer an independent basis of jurisdiction but rather merely supplies a permissible remedy in actions otherwise properly brought on independent jurisdictional grounds." Id. (citing Udall v. Oil Shale Corp., 406 F.2d 759 (10th Cir.1969); Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364 (10th Cir.), cert. denied, 385 U.S. 831, 87 S.Ct. 70, 17 L.Ed.2d 67 (1966).

The court finds that jurisdiction exists, however, under 28 U.S.C. § 1331,³ for the action is one that "arises under" the laws of the United States.⁴ Although the statutory phrase, "arising under the Constitution, laws, or treaties of the United States" has resisted attempts to frame a single, precise definition for determining which cases fall within, and which cases fall outside, the original jurisdiction of the district courts, certain rules have developed. Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 8, 103 S.Ct. 2841, 2845, 77 L.Ed.2d 420 (1983). The general rule of inclusion is that a suit will "arise under" a federal law if the federal law creates the cause of action. See Zibell v. Brull, No. 93-4057 slip. op. at 8, 1993 WL 192831 (D.Kan. May 20, 1993) (citing Franchise Tax, 463 U.S. at 8-9, 103 S.Ct. at 2845-46). A suit will also "arise under" federal law if the "`plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law,' in that `federal law is a necessary element of one of the well pleaded ... claims.'" Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 808, 108 S.Ct. 2166, 2173, 100 L.Ed.2d 811 (1988) (quoting Franchise Tax, 463 U.S. at 13, 27-28, 103 S.Ct. at 2848, 2855-2856). A district court will have jurisdiction over a plaintiff's claim if it is directly founded on federal law. Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936). "For this court to exercise federal question jurisdiction under 28 U.S.C. § 1331, there must be a constitutional or federal statutory provision under which plaintiffs are aggrieved." Western Shoshone Business Council for and on Behalf of Western Shoshone Tribe of Duck Valley Reservation v. Babbitt, 1 F.3d 1052, 1058 (10th Cir.1993) (citing Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (193...