Little v. Little

• Decision Date: 23 September 1987
• Docket Number: No. 18932-CA,18932-CA
• Citation: 513 So.2d 464
• Parties: Wayne Rebecca Eastman LITTLE, Appellee, v. Bill Doo LITTLE, Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 464

513 So.2d 464

Wayne Rebecca Eastman LITTLE, Appellee, v. Bill Doo LITTLE, Appellant.

No. 18932-CA.

Court of Appeal of Louisiana Second Circuit.

Sept. 23, 1987.

Edward Larvadain, Jr., Alexandria, for appellant.

Love, Rigby, Dehan, Love & McDaniel by William G. Nader, Shreveport, for appellee.

Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.

FRED W. JONES, Jr., Judge.

A husband, on active duty with the U.S. Air Force, and his wife were legally separated in 1963 in Bossier Parish, where they were subsequently divorced in 1964. In 1984 the wife, a resident of Texas, sued the husband, a resident of England, in Bossier Parish to partition the defendant's military retirement pay.

Judgment was rendered in favor of the plaintiff wife decreeing her entitlement to a specified portion of the retirement pay beginning June 25, 1981. The defendant appealed, asserting the trial judge erred in 1) ruling it had jurisdiction to hear the case and 2) ruling that the military retirement pay being received by defendant was property of the community which had existed between the parties and was, consequently, subject to division in accordance with Louisiana community property law.

Plaintiff neither appealed nor answered the appeal.

For the reasons hereinafter explained, we affirm.

Factual Context and Procedural History

Bill Doo Little became a member of the U.S. Air Force in 1945. While a domiciliary of Texas he married Wayne Rebecca Eastman Little in 1954. During the legal separation and divorce proceedings in Bossier Parish in 1963 and 1964, initiated by Mrs. Little, personal service was made upon the defendant husband. No mention was made of defendant's military retirement benefits in either proceeding.

After the divorce Mrs. Little moved to Texas where she has resided since 1965. Little retired from the Air Force in 1969. For the last 20 years he has resided in England.

At the trial the parties stipulated that 20 years of active duty in the military or reserve service is necessary to obtain retirement benefits. It was also stipulated that defendant was not entitled to receive military retirement benefits at the time of the legal separation and divorce because he had not yet performed the required 20 years service; that, due to this, the retirement benefits had neither matured nor vested at that time; and that when defendant became entitled to receive the benefits, the parties were divorced.

In response to the suit for partition, defendant filed peremptory exceptions of no cause of action and no right of action, both of which were overruled. The defendant then filed an exception of lack of personal jurisdiction, which was also subsequently overruled. An answer to the suit was filed.

In written reasons for judgment, the trial court first addressed defendant's contention that he was domiciled in South Carolina when he entered military service. It was pointed out that, according to the evidence, prior to this marriage defendant had filed suit for divorce in Texas in 1951 and alleged he had resided in Texas for more than 12 months. He filed another suit for divorce in Texas in 1952 and asserted he was a permanent resident of Texas (though temporarily stationed in Alaska) and that he intended to return to Texas. The trial court concluded defendant was domiciled in Texas at the time of his marriage to plaintiff and this status continued throughout defendant's military career.

The trial court next addressed defendant's argument that plaintiff was not entitled to any portion of the military retirement benefits because they were not vested at the time of their divorce in 1964. Noting the absence of Louisiana authority cited by defendant to support his position, the trial judge ruled that vesting is not a requirement for recovery of retirement benefits by the wife and awarded her a portion thereof. Considering the total military service of 23 years 11 months, and the 9 years 2 months during which the community was in existence, plaintiff's portion of the retirement benefits was calculated to be 1/2 of 38%, or 19%. Consequently, she was held entitled to 19% of all retirement benefits paid since June 29, 1981 ^* and 19% of all future payments.

Jurisdictional Issue

We note first that defendant waived any objection to jurisdiction in the partition proceeding when he filed the exceptions of no cause of action and no right of action. Since this was the seeking of relief other than that allowed by La.C.C.P. Art. 7, it was a general appearance which waived all declinatory exceptions except subject matter jurisdiction. La.C.C.P. Art. 925.

Be that as it may, we also find that the trial court had personal jurisdiction under the doctrine of "continuing jurisdiction".

Gowins v. Gowins, 466 So.2d 32 (La.1985), cited by both parties, held that since a Louisiana court had personal jurisdiction over a husband in the dissolution of his marriage, that jurisdiction continued for the related proceeding to distribute the husband's military retirement pay.

Defendant concedes the existence of this doctrine of continuing jurisdiction, but nevertheless asserts that the lower court erred in taking jurisdiction since both parties left Louisiana after their divorce some twenty years ago and have had no further contact with the state since then. The argument seems to be that in order for a court to exercise continuing jurisdiction at least one of the former litigants must be either currently residing, present, or domiciled in the state. It is also implied in the specification of error that the twenty year gap between the two proceedings precludes the application of this doctrine. No authority was cited to support these contentions.

The court in Gowins relied on Imperial v. Hardy, 302 So.2d 5 (La.1974) and Michigan Trust v. Ferry, 228 U.S. 346, 33 S.Ct. 550, 57 L.Ed. 867 (1913), cases which also stand for the proposition that once a court obtains jurisdiction, it retains that jurisdiction over matters connected with the initial proceeding, and has the power to bind the parties. These cases also involved absent defendants who objected to the court's exercise of jurisdiction over their persons. As Justice Holmes explains in Michigan Trust, supra:

"Ordinarily jurisdiction over a person is based on the power of the sovereign asserting it to seize that person and imprison him to await the sovereign's pleasure. But when that power exists and is asserted by service at the beginning of a cause, or if the party submits to the jurisdiction in whatever form may be required, we dispense with the necessity of maintaining the physical power, and attribute the same force to the judgment or decree whether the party remain within the jurisdiction or not. This is one of the decencies of civilization that no one would dispute. It applies to Article 4, § 1, of the Constitution, so that if a judicial proceeding is begun with jurisdiction over the person of the party concerned, it is within the power of a state to bind him by every subsequent order in the cause." Michigan Trust, supra, 33 S.Ct. at 552.

There is no question that the Bossier Parish court had personal jurisdiction over defendant in the proceeding to dissolve his marriage. He submitted to the jurisdiction of that court by answering both petitions and personally accepting service of Mrs. Little's divorce petition. These actions conferred jurisdiction upon the court through consent, as they constituted general appearances which waived all objections to jurisdiction. La.C.C.P. Arts. 6(3) and 7.

While it is true that the moving party (wife) in Gowins was domiciled in Louisiana when she filed her ancillary proceeding to partition her ex-husband's military retirement pay in Rapides Parish, this fact was neither the basis of, nor essential to, the court's holding. As Justice Lemmon's concurrence in Gowins makes clear, it is the nature of the proceeding, rather than anything about a party, that is determinative of continuing jurisdiction. Once jurisdiction attaches, it continues throughout the entire proceeding, including any additional actions which are "essential concomitant[s]" of the original one. Gowins, supra, at 37 (J. Lemmon, concurring). Therefore, since the dissolution of the community gives rise to the action for dividing and distributing the community property, it is "... within the scope of the jurisdiction originally conferred." Id.

Parrish v. Parrish, 448 So.2d 804 (La.App. 2d Cir.1984), held that a trial court with an independent jurisdictional basis to decide a child custody issue raised in a separation proceeding had continuing jurisdiction over the custody issue raised again in the divorce proceeding, even though the child had by that time been removed from the state. Stevens v. Stevens, 476 So.2d 883 (La.App. 2d Cir.1985), writ denied, 478 So.2d 908 (La.1985), ruled an action by a wife to enforce a community property agreement was within the scope of original jurisdiction obtained by the trial court in the divorce proceeding, despite the fact that the husband had since become a Texas domiciliary.

We conclude, therefore, the trial judge correctly ruled it had personal jurisdiction over the defendant in this partition suit.

Classification of the Military Retirement Pay

Defendant's argument is that his former wife is not entitled to any portion of the military retirement benefits he is now receiving because at the time the community between them terminated he had not yet served the required 20 years of military service or retired, and thus the benefits were neither vested nor matured.

The issue of whether military retirement pay, which is neither vested nor matured at the time of dissolution of a marriage, is properly classified as community property and subject to division in accordance with Louisiana community property law has not been specifically addressed in this state. Military retirement benefits vesting and maturing during marriage are clearly community...