Bullis v. Bullis

• Decision Date: 12 March 1996
• Docket Number: No. 2265-94-4,2265-94-4
• Citation: 467 S.E.2d 830,22 Va.App. 24
• Court: Virginia Court of Appeals
• Parties: Daniel Joseph BULLIS v. Regina BULLIS. Record

Page 830

467 S.E.2d 830

22 Va.App. 24

Daniel Joseph BULLIS v. Regina BULLIS.

Record No. 2265-94-4.

Court of Appeals of Virginia Alexandria.

March 12, 1996.

Rehearing En Banc Granted Feb. 27, 1996.

Edward A. Shackelford, Fairfax, for appellant.

Gwendolyn Jo M. Carlberg, Alexandria, for appellee.

Present: BENTON, COLEMAN and FITZPATRICK, JJ.

BENTON, Judge.

This appeal arises from a circuit court judgment entered in an action brought pursuant to the Uniform Enforcement of Foreign Judgments Act.Code §§ 8.01-465.1 to 8.01-465.5. The appellant, Daniel Joseph Bullis, contends that the trial judge erred in converting to a Virginia judgment an Arizona judgment that awarded his former wife, Regina Bullis, a portion of his military retirement pay. For the reasons that follow, we affirm the circuit court's judgment.

I.

The appellee, a resident of Arizona, commenced this action in 1994 in the Circuit Court of Fairfax County, Virginia, against appellant, a resident of Virginia, to obtain a Virginia judgment based upon a judgment she obtained in the Superior Court for the County of Maricopa in the State of Arizona. See Aetna Casualty & Surety Co. v. Whaley, 173 Va. 11, 3 S.E.2d 395 (1939). In her "Petition for Judgment," appellee alleged jurisdiction "pursuant to the Uniform Enforcement of Foreign Judgments Act, § 8.01-465.1, et seq., of the ... Code of Virginia," pursuant to " § 8.01-466, et seq., of the ... Code of Virginia," and pursuant to "the Uniform Services Former Spouse's Protection Act (USFSPA), 10 U.S.C. [s] 1401 et seq."

Appellee also alleged that the parties were divorced July 6, 1982, in Arizona and that the divorce decree equitably divided all their community, joint, and common property. She further alleged that on September 24, 1992, a court of record in Arizona entered an order that modified the 1982 divorce decree pursuant to the USFSPA and awarded her "one half of the community interest in the disposable military retirement pay of the [appellant]." Appellee alleged that appellant resided in Fairfax County, was retired from active duty with the United States Army, and was receiving military retirement benefits.

Appellant filed a demurrer in which he alleged that relief was not available under 10 U.S.C. § 1408(a)(4) because he retired from the military under Chapter 61 disability and that appellee had been denied payment when she forwarded her claim to the Defense Finance and Accounting Service. When a judge overruled the demurrer, appellant filed an answer generally denying the allegations in the petition.

II.

The parties agree upon the essential facts. The appellant joined the United States Army in December 1961 and married appellee in November 1964. They were divorced in Arizona by a final decree entered July 6, 1982. The decree equitably divided between them all community, joint, and common property without any reference to retirement pay.

On September 24, 1992, an Arizona superior court granted appellee's petition to modify the final divorce decree and awarded appellee "one-half of the community interest in the disposable military retirement pay of ... Daniel Joseph Bullis, upon his retirement." The order also stated the following:

The community interest is to be determined by the fraction whereby the numerator is the number of months that [Daniel Joseph Bullis] was in the service during the marriage of the parties, or 212 months, over the denominator, which will be the total number of months that [he] has been The order further stated that "[appellant was] neither ... present [nor] represented by counsel, although counsel for ... [appellant had] been previously notified of this hearing;" that federal legislation enacted after McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), entitled appellee to file a claim for a portion of appellant's disposable military retirement payments; that the court observed and complied with the Soldiers and Sailors Civil Relief Act of 1940; and that the court had jurisdiction under Arizona law to modify the final decree and order a division of the retirement payments. Appellant did not appeal from the Arizona order modifying the final divorce decree.

and will remain in the Armed Services until retirement.

The trial judge found the Arizona judgment to be valid and entered a Virginia judgment awarding appellee "a sum equal to one-half ... of the disposable interest of [appellant's] nondisability, nonexempt military retired pay on a monthly basis pursuant to the percentage formula under the amended law of 1986 of 10 U.S.C. [s] 1408, Uniformed Services Former Spouses Protection Act." Based upon a finding that appellant retired from the military in March 1993 with a permanent disability rating of 60% and received $596.85 per month "nondisability, nonexempt, disposable portion of retired pay," the trial judge entered judgment awarding appellee $294.43 monthly and $4,774.80 in arrearages, computed from the date of appellant's retirement. The trial judge retained jurisdiction "pending [appellee's] first receipt of payment for her portion in monthly retired pay, the sum certain amount to be determined by the Defense Finance and Accounting Service in Indianapolis, Indiana according to the formula established by the Arizona court." In addition, the trial judge retained jurisdiction "to reflect any increase in the cost of living adjustment (COLA) which [appellant] may have received pending first payment to [appellee]" and ordered other relief. This judgment order is the subject of this appeal.

III.

Appellant has not addressed in his brief the statute that confers jurisdiction in this Court to entertain his appeal. Appellee does not contest jurisdiction. We are required, however, to ascertain our jurisdiction before proceeding. West v. Commonwealth, 18 Va.App. 456, 445 S.E.2d 159 (1994), appeal dismissed, 249 Va. 241, 455 S.E.2d 1 (1995); In re O'Neil, 18 Va.App. 674, 446 S.E.2d 475 (1994). In Virginia, "[t]he general appellate jurisdiction ... is in the Supreme Court and not in the Court of Appeals." West, 18 Va.App. at 458, 445 S.E.2d at 160. This Court's appellate jurisdiction in civil cases "is limited to the subject matter set forth in Code §§ 17-116.05 and 17-116.05:1." West, 18 Va.App. at 457, 445 S.E.2d at 159. In pertinent part, Code § 17-116.05 provides as follows:

Any aggrieved party may appeal to the Court of Appeals from:

* * * * * *

3. Any final judgment, order, or decree of a circuit court involving:

a. Affirmance or annulment of a marriage;

b. Divorce;

c. Custody;

d. Spousal or child support;

e. The control or disposition of a child;

f. Any other domestic relations matter arising under Title 16.1 or Title 20; or

g. Adoption under Chapter 11 (§ 63.1-220 et seq.) of Title 63.1;

4. Any interlocutory decree or order entered in any of the cases listed in this section (i) granting, dissolving, or denying an injunction or (ii) adjudicating the principles of a cause.

In Carlton v. Paxton, 14 Va.App. 105, 415 S.E.2d 600, aff'd, 15 Va.App. 265, 422 S.E.2d 423 (1992) (en banc), the appellant appealed to this Court from a chancery court proceeding that was instituted as an independent action pursuant to Code § 8.01-428 to set aside an order of adoption. The trial judge had refused to set aside a final decree of adoption after the evidence proved the child's father had not received notice. Relying upon the literal language in Code § 17-116.05(3)(g), this Court ruled by order that jurisdiction did not lie because "the appeal is The rulings in Carlton and Khanna suggest that jurisdiction over this appeal lies in this Court. Although this action was instituted in the circuit court for the purpose of domesticating and enforcing a judgment of another state, the subject matter of the underlying issue involved a domestic relations matter. As in Khanna, we conclude that jurisdiction over an appeal from a final judgment must be based upon an assessment of the underlying cause. See 18 Va.App. at 357 n. 1, 443 S.E.2d at 925 n. 1. Because the underlying cause in this case is a decree involving a divorce, we hold that this Court has jurisdiction to review the final judgment.

                not from a final decree involving adoption."   [22 Va.App. 31]  (Unpublished order, May 1, 1991).  When the appeal was transferred to the Supreme Court, that Court ruled by order that a decree refusing to vacate or set aside an order of adoption is a final decree involving adoption.  See Carlton v. Paxton, Record No. 910689 (May 15, 1991).  Applying that ruling, this Court held in a later case that an appeal from a final order entered in an independent action brought pursuant to Code § 8.01-428 to set aside a decree for fraud was appealable to this Court.   Khanna v. Khanna, 18 Va.App. 356, 357 n. 1, 443 S.E.2d 924, 925 n. 1 (1994).  The Court reasoned that the underlying cause was an annulment and, therefore, jurisdiction was proper under Code § 17-116.05(3)(a).   Id.
                

IV.

Appellant raises the following issues on this appeal:

1. Whether the Court erred in determining that there was any military retired pay which fell within the definition of "disposable" under 10 U.S.C. [§ ] 1408 when the parties were divorced on July 6, 1982 and Appellant was later retired under Chapter 61, 10 U.S.C. for disability.

2. Whether the Court erred in determining that the November 16, 1986 amendment to 10 U.S.C. [§ ] 1408 was controlling, rather than the original September 8, 1992 Act (retroactive to June 25, 1981) which was the controlling statute fixing the definition of "disposable retired pay" at the time of the divorce order.

3. Whether the Court erred in awarding the appellee a sum equal to one-half (1/2) of the disposable amount of the husband's military retired pay in disregard of Code of Virginia, 1950, as amended, § 20-107.3(G)(1).

4. Whether the Court erred in awarding an amount certain in monthly entitlement and arrearages, without hearing evidence and applying all applicable...