Gowins v. Gowins

• Decision Date: 01 April 1985
• Docket Number: No. 84-CC-1742,84-CC-1742
• Citation: 466 So.2d 32
• Parties: Judith Ann Hoover GOWINS v. Carroll E. GOWINS.
• Court: Louisiana Supreme Court

Page 32

466 So.2d 32

Judith Ann Hoover GOWINS v. Carroll E. GOWINS.

No. 84-CC-1742.

Supreme Court of Louisiana.

April 1, 1985.

Dissenting Opinion April 11, 1985.

Rehearings Denied May 2, 1985.

Howard Nugent, Jr., Alexandria, for relator.

Marsha Hopper, Alexandria, for respondent.

WATSON, Justice.

After Judith Ann Hoover Gowins filed for partition of her former husband's military retirement pay, Carroll E. Gowins filed a declinatory exception of lack of personal jurisdiction which was overruled by the trial court. The Court of Appeal reversed. Gowins v. Gowins, 457 So.2d 685 (La.App. 3 Cir.1984). A writ was granted. 460 So.2d 594 (La., 1984).

FACTS

Mr. and Mrs. Gowins were married on September 8, 1962, in Rapides Parish, Louisiana, and established a matrimonial domicile in Lincoln Parish. Upon graduation from Louisiana Tech in 1964, Mr. Gowins received a commission in the United States Air Force. In 1979, while the family was stationed in Rapid City, South Dakota, Mrs. Gowins and the three children born of the marriage returned to Louisiana.

On July 2, 1979, Mrs. Gowins filed a petition for separation in Rapides Parish, alleging that Major Gowins was a Louisiana domiciliary residing in South Dakota and praying that he be restrained from alienating the community property. Her husband answered the petition and reconvened for a separation based on abandonment.

On July 23, 1979, both parties appeared with their attorneys in the Ninth Judicial District Court, Rapides Parish. Mrs. Gowins received custody of the children and a preliminary injunction against disposal of the community property. Major Gowins was awarded reasonable visitation rights and ordered to pay child support and alimony pendente lite.

On November 16, 1979, Major Gowins filed a rule to obtain visitation rights at his parents' home in North Louisiana during the Christmas holidays, alleging that he was domiciled in Louisiana but stationed in South Dakota. Subsequently, on February 14, 1980, he filed another rule in the Rapides Parish separation proceeding. The trial court set up a specific visitation schedule, and the judgment was affirmed. Gowins v. Gowins, 391 So.2d 48 (La.App. 3 Cir.1980).

On June 23, 1980, Mrs. Gowins filed an amending petition asking for a final divorce. Major Gowins answered the petition. On December 2, 1980, Mrs. Gowins was granted a divorce and awarded permanent custody of the three children. Her former husband's visitation rights were reaffirmed, and he was ordered to pay child support.

On May 7, 1982, Carroll Gowins petitioned for a reduction in child support, alleging that he was a Louisiana domiciliary residing in Alabama. The reduction was denied, but he was relieved from paying support for one child who had reached majority.

On February 6, 1984, in the same suit, Mrs. Gowins filed this petition for partition of the military retirement pay, allegedly omitted from a "partial community property settlement" on June 2, 1981. ¹ Paragraph one of the petition states:

"Defendant, CARROLL E. GOWINS, whose Social Security number is 435-62-5361, was a former domiciliary of the State of Louisiana and is now a resident of Montgomery, Alabama, and is an absentee defendant."

Mrs. Gowins also alleged that her former husband, now a Lieutenant Colonel, listed Louisiana as his home state of record and paid Louisiana State income tax during the sixteen years and four months of their marriage, and became eligible for retirement in August of 1984.

Col. Gowins filed various exceptions to the petition, among them lack of jurisdiction over the person. The trial court dismissed all of the exceptions, stating in reasons for judgment that the court retained jurisdiction on all matters relating to dissolution of the community.

The court of appeal reversed, holding that Louisiana did not have jurisdiction over Col. Gowins for the partition of his military retirement pay, because Col. Gowins is not a domiciliary or resident of the state of Louisiana and did not consent to the court's jurisdiction. 10 U.S.C.A. Sec. 1408(c)(4)(C).

ISSUE

Does Louisiana have personal jurisdiction over Col. Gowins in an action to partition his military retirement pay?

LAW

McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) held that federal law precluded the application of state law to divide military retirement benefits. Before McCarty, Louisiana courts had held that military pensions were an asset of the community of acquets and gains which could be divided upon dissolution of the marriage. Swope v. Mitchell, 324 So.2d 461 (La.App. 3 Cir.1975); Moon v. Moon, 345 So.2d 168 (La.App. 3 Cir.1977), writ den. 347 So.2d 250. After McCarty, Louisiana courts had no authority to order the division of military retirement benefits. Dedon v. Dedon, 404 So.2d 904 (La., 1981).

In 1982 Congress enacted the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C.A. Sec. 1408 to overrule McCarty. Under 10 U.S.C.A. Sec. 1408(c)(1), the states may apply their own marital property laws to military retired pay. ² See Note, Military Retired Pay and Divorce; Congress Retires McCarty v. McCarty --Is that Enough?, 40 Wash. & Lee L.Rev. 271 (1983).

The application of USFSPA is limited to courts with jurisdiction over the military service member. 10 U.S.C.A. Sec. 1408(c)(4) provides:

"A court may not treat the disposable retired or retainer pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court."

Thus, in order for Louisiana to apply its law on matrimonial regimes to military pensions, the service member must be a Louisiana domiciliary, a Louisiana resident, apart from military assignment, or the member must have consented to the Louisiana court's exercise of jurisdiction.

Domicile and residence are two separate concepts. Domicile includes residence but it also includes the added element of an intent to make the residence one's principal establishment. LSA-CC. art. 38; ³ Messer v. London, 438 So.2d 546 (La., 1983); Succession of Rhea, 227 La. 214, 78 So.2d 838 (1955). A person can have several places of residence but only one place of residence can be the domicile. Taylor v. State Farm Mutual Auto. Ins. Co., 248 La. 246, 178 So.2d 238 (1965).

There is a presumption against a change in domicile and one who acquires a new domicile has the burden of proving the change. In Re Adoption of Rials, 220 La. 484, 56 So.2d 844 (1952); Succession of Simmons, 109 La. 1095, 34 So. 101 (1903). A member of the military is presumed to retain the domicile of his home state. LSA-C.C. art. 46; Spring v. Spring, 210 La. 576, 27 So.2d 358 (1946); Walcup v. Honish, 210 La. 843, 28 So.2d 452 (1946); King v. King, 173 So.2d 882 (La.App. 4 Cir.1965).

LSA-C.C.P. art. 6(3) provides:

"Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. This jurisdiction must be based upon:

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"(3) The submission of the party to the exercise of jurisdiction over him personally by the court, or his express or implied waiver of objections thereto."

The actions that do not constitute a waiver of jurisdictional objections are set out in LSA-C.C.P. art. 7 which provides in pertinent part:

"Except as otherwise provided in this Article, a party makes a general appearance which subjects him to the jurisdiction of the court and impliedly waives all objections thereto when, either personally or through counsel, he seeks therein any relief other than:

(1) Entry or removal of the name of an attorney as counsel of record;

(2) Extension of time within which to plead;

(3) Security for costs;

(4) Dissolution of an attachment issued on the ground of the nonresidence of the defendant; or

(5) Dismissal of the action on the ground that the court has no jurisdiction over the defendant."

Thus, by making a general appearance, a party impliedly consents to the exercise of the Louisiana court's jurisdiction.

Once a court obtains jurisdiction, it retains jurisdiction over matters connected with the initial proceeding. Imperial v. Hardy, 302 So.2d 5 (La., 1974); Michigan Trust v. Ferry, 228 U.S. 346, 33 S.Ct. 550, 57 L.Ed. 867 (1913). Such continuing jurisdiction gives a court authority to bind the parties. Imperial v. Hardy, supra.

In re Marriage of Sarles, 143 Cal.App.3d 24, 191 Cal.Rptr. 514 (1983) involved a husband who contested the court's jurisdiction to divide his Marine Corps pension. Because the parties had stipulated, in dissolving their marriage, that the court would retain jurisdiction over the wife's interest in the pension, the husband had consented to the court's jurisdiction under 10 U.S.C.A. Sec. 1408(c)(4)(C).

In re Marriage of Jacobson, 161 Cal.App.3d 465, 207 Cal.Rptr. 512 (1984), concerned an Iowa domiciliary, stationed in California, who contested the California court's jurisdiction over him for division of his military retirement pay. As in Sarles, supra, husband and wife had entered into a stipulation that the court retained jurisdiction as to the wife's rights in the pension. Consent was present under 10 U.S.C.A. Sec. 1408(c)(4)(C).

In Southern v. Glenn, 677 S.W.2d 576 (Tx.App. 4 Dist.1984), the husband, a Mississippi domiciliary stationed in Texas, was divorced in Texas, but the divorce decree did not provide for partition of the husband's military pension. The wife then filed a separate suit to partition the husband's military retirement pay, and the husband contested jurisdiction. It was held that there was no jurisdiction over the husband under 10 U.S.C.A. Sec. 1408(c)(4). The husband had returned to his domicile in Mississippi immediately after the divorce. There was no consent to...