Brown v. Harms

• Decision Date: 26 September 1994
• Docket Number: Civ. A. No. 94-901-A.
• Citation: 863 F. Supp. 278
• Parties: Jill M. BROWN, Plaintiff, v. Thomas Eugene HARMS, Defendant.
• Court: U.S. District Court — Virgin Islands

863 F. Supp. 278

Jill M. BROWN, Plaintiff, v. Thomas Eugene HARMS, Defendant.

Civ. A. No. 94-901-A.

United States District Court, E.D. Virginia, Alexandria Division.

September 26, 1994.

Philip Schwartz, Schwartz, Ellis and Moore, Arlington, VA, for plaintiff.

William Edward Hassan, Duvall, Harrigan, Hale & Downey, Fairfax, VA, for defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

This is an action for partition of a military officer's retirement pay. It is brought by the retired officer's spouse following the dissolution of the marriage by a German court. The question presented is whether the Uniformed Services Former Spouses Protection Act (the "Act")¹ creates federal subject matter jurisdiction. For the reasons that follow, the Court concludes that it does not.

I.

Defendant, a career military officer, and Plaintiff married in 1967. By 1984, the marriage had deteriorated and the parties were living separately in Germany. On March 30, 1984, Plaintiff filed for divorce in the Circuit Court of Champaign County, Illinois, apparently because this venue was then Defendant's legal residence of record. A month later, Defendant, having received notice of the Illinois divorce action, wrote to the court requesting a stay of the proceedings until July 1984, by which time he would have returned to Illinois. This request was apparently granted; the Illinois action was thereafter dormant until April 1987, when the court sua sponte, dismissed the case for want of prosecution.

In October 1984, while plaintiff and defendant were living apart in Germany, a German court, at their instance, dissolved their marriage. In this connection, the parties reached agreement on issues of child support, custody and division of certain property, which agreement was embodied in the German court decree.² Deliberately omitted from the German court decree was any partition of defendant's military retirement pay. Instead, the decree explicitly contemplated that the parties would pursue this issue in another forum.³ The reason for this deliberate omission, it appears, is the German court's belief that it had no power to effect a binding partition of defendant's retirement income. The Act confers this power on "any court of competent jurisdiction of a foreign country with which the United States has an agreement requiring the United States to honor any court order of such country." 10 U.S.C. § 1408(a)(C) (1988). The United States has no such agreement with Germany.

Following the German divorce, approximately five and a half years passed without relevant activity in this matter. Then, in April 1990, Plaintiff filed a Petition for Registration of Foreign Judgement and for Supplemental Relief in the Circuit Court of Champaign County, Illinois. Through this petition, Plaintiff sought to register the German decree and to obtain an order partitioning Defendant's retirement pay. A year later, in April 1991, the court dismissed this petition with prejudice for lack of subject matter jurisdiction. On appeal, the Illinois intermediate appellate court affirmed the ruling, holding (i) that "judgements of foreign countries cannot be registered in Illinois under the Uniform Enforcement of Foreign Judgments Act," which Illinois had adopted, and (ii) that the Act conferred no jurisdiction on Illinois courts over the subject matter of the petition. In re Marriage of Jill Brown, 225 Ill.App.3d 733, 737-38, 167 Ill.Dec. 379, 383-84, 587 N.E.2d 648, 652-53 (1992).⁴ Plaintiff took no appeal from this ruling, apparently because she lacked the funds to do so.

Approximately two years later, Plaintiff filed this action for partition of Defendant's military pension. Conceding that no diversity of citizenship exists among the parties, Plaintiff contends that there is federal question jurisdiction, as this is an action "arising under" the laws of the United States, namely the Act. Defendant disagrees, arguing that the Act creates neither jurisdiction nor a federal cause of action.

II.

Analysis properly begins with the recognition that federal district courts are "courts of limited jurisdiction and are empowered to act only in those specific instances authorized by Congress." Goldsmith v. Mayor & City Council of Baltimore, 845 F.2d 61, 63 (4th Cir.1988) (quoting Bowman v. White, 388 F.2d 756 (4th Cir.1968)). Put another way, "federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress." Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986)). It follows, then, that when jurisdiction is challenged, the proponent of jurisdiction must be able to point to some federal statute that confers jurisdiction in the particular case. And, while Congressional grants of power to adjudicate claims can be express or implied, it is settled that "such grants are not to be lightly inferred." Nieto v. Ecker, 845 F.2d 868, 871 (9th Cir. 1988).

These principles, applied here, point convincingly to the conclusion that there is no federal jurisdiction, expressed or implied, to adjudicate Plaintiff's request to partition Defendant's military retirement pay. To begin with, an express grant of jurisdiction is nowhere to be found in the Act. Indeed, the Act does not purport to confer subject matter jurisdiction on any court. Instead, the Act merely allows a court of "competent jurisdiction" to treat military retirement pay as spousal or community property "in accordance with the law of the jurisdiction of that court." 10 U.S.C. of 1408(c)(1).⁵ In other words, the Act does no more than make clear that courts of competent jurisdiction, namely courts that already have subject matter jurisdiction from some proper source extrinsic to the Act,⁶ may treat a military pension as the property of the retiree or as the joint property of the retiree and the retiree's spouse, depending on the legal rules of the court's jurisdiction. Thus, the Act empowers, for example, Illinois state courts to reach and partition military retirement pay, provided the Illinois court has jurisdiction over the matter pursuant to pertinent Illinois jurisdictional statutes, and provided further that the substantive legal rules the Illinois court would apply⁷ allow or require partition in the circumstances. In sum, the Act only allows courts to apply state divorce laws to military pensions. It does not purport to do more. Nowhere does it expressly or impliedly grant any court the power to adjudicate any cause, nor does it provide any substantive rule for the treatment of military pensions in divorce or domestic relations contexts.

This conclusion is firmly supported by the Act's history. In 1981, the Supreme Court held that the existing federal laws granted husbands and wives no right to their spouses' military pensions, and that state courts were precluded from applying their community property laws to such pensions. McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). Congress, dissatisfied with this state of affairs, passed the Act, making unmistakably clear in the process that it intended the Act "to restore the law to what it was when the courts were permitted to apply state divorce laws to military retirement pay." S.Rep. 502, 97th Cong., 2d Sess. 5, reprinted in 1982 U.S.C.C.A.N. at 1599-1600. Congress' purpose in passing the Act was simply to allow courts to reach a military officer's retired pay, provided the court was already empowered by a state statute to adjudicate property division disputes between members of the military and their spouses or former spouses. Nothing in the Act's language or its legislative history suggests that congress, in passing the Act, intended to expand the jurisdiction of federal courts to hear divorce-related matters they were not previously competent to adjudicate.⁸

Pertinent authority is sparse. The parties cite only two decisions, neither of which is squarely on point. The first is a Ninth Circuit decision where, consistent with the result reached here, the panel noted, in dicta that the Act "does not create jurisdiction, but grants power to courts once they have jurisdiction." Steel v. United States, 813 F.2d 1545, 1548 (1987).

The second is Kirby v. Mellenger, 830 F.2d 176 (11th Cir.1987), cited and heavily relied on by the plaintiff. There, the Eleventh Circuit, in circumstances quite different from those at bar, reversed a district court's dismissal of a suit to partition military pay. Kirby is inapposite here because it is a diversity case, not a federal question case, and because it involves the applicability of the "domestic relations exception" to diversity jurisdiction,⁹ not the question whether the Act creates or expands federal court jurisdiction. Read carefully, therefore, Kirby offers no support for defendant's argument.¹⁰

Plaintiff next argues that even if the Act, by itself, does not expand or create jurisdiction, there is federal subject matter jurisdiction nonetheless because, pursuant to 28 U.S.C. § 1331, this is an action "arising under" federal law, namely the Act. Settled principles scuttle this argument. An action does not arise under federal law unless "a federal right, privilege, or immunity ... is an essential element of the plaintiff's cause of action." McCorkle v. First Pennsylvania Banking & Trust Co., 459 F.2d 243, 250 (4th Cir.1972), (citing Gully v. First Nat'l Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936)). And, it is not enough for federal matters to be introduced "only in anticipation of a defense." Id.

Here, no "federal right, privilege or immunity" is an essential element of Plaintiff's action for partition of Defendant's military retirement pay. Instead, her action is founded either on her alleged contract with Defendant in connection with the German divorce or on the divorce and community property laws of an appropriate state. The Act, by itself,...