Marriage of Booker, Matter of

• Decision Date: 07 July 1992
• Docket Number: No. 90SC702,90SC702
• Citation: 833 P.2d 734
• Parties: In the Matter of the MARRIAGE OF Richard L. BOOKER, Petitioner, and Betty K. Booker, Respondent.
• Court: Colorado Supreme Court

Page 734

833 P.2d 734

In the Matter of the MARRIAGE OF Richard L. BOOKER,

Petitioner, and Betty K. Booker, Respondent.

No. 90SC702.

Supreme Court of Colorado,

En Banc.

July 7, 1992.

Rehearing Denied Aug. 17, 1992.

Lozow, Lozow and Elliott, Jon P. Lozow, Denver, for petitioner.

Doris Besikof, Denver, for respondent.

Justice KIRSHBAUM delivered the Opinion of the Court.

In In re Marriage of Booker, 811 P.2d 405 (Colo.App.1990), the Colorado Court of Appeals reversed the trial court's conclusion that it lacked jurisdiction to grant the request of respondent Betty K. Booker (wife) that she be awarded a portion of a military pension owned by petitioner Richard L. Booker (husband) as marital property. Having granted certiorari to consider the propriety of the Court of Appeals ruling, we reverse.

I

The Bookers were married in 1959, at which time the husband was a member of the United States Air Force. Upon his retirement from military service in April 1978, he, the wife and their six children resided in Denver, Colorado, until April 1982, when the Bookers separated. In May 1982, the husband moved to Germany in connection with his employment by the United States government as a civilian engineer.

On June 17, 1983, the wife filed a Petition for Dissolution of Marriage or Legal Separation in the District Court for the Second Judicial District of Colorado, pursuant to section 14-10-106, 6B C.R.S. (1987). When the husband refused to accept service of the summons and complaint, the trial court ordered service by publication, pursuant to C.R.C.P. 4(h). Subsequently, the husband received notice by registered mail that a hearing on the wife's petition would be held on March 1, 1984.

The trial court conducted the hearing on that date and entered permanent orders and a decree of legal separation. The husband was neither present nor represented by counsel at the hearing. The decree contained a finding that the trial court had jurisdiction over the parties and the subject matter of the action, granted custody of the parties' two minor children to the wife, and recited that the trial court retained such jurisdiction of the action "as is provided by law." The permanent orders required the husband to pay child support, found that the husband received "full military retirement pay" at the time, ¹ and provided that the wife, "shall remain entitled to any and all military benefits, annuities, PX privileges, medical care and other incidences that she has enjoyed as [the husband's] wife." The permanent orders also awarded the family residence to the wife and awarded each party a motor vehicle.

On March 5, 1984, and July 23, 1984, the trial court entered judgments in the dissolution proceedings against the husband for child support arrearages and attorney fees. On July 30, 1984, the wife filed a verified request for the entry of a decree of dissolution of marriage. The request stated, inter alia, that the husband "has never entered an appearance or otherwise participated in the action" and recited that a copy of the request had been mailed to the husband.

On October 12, 1984, the trial court entered a decree dissolving the Bookers' marriage, nunc pro tunc to September 7, 1984. The decree ordered the parties to perform the provisions of the permanent orders, which were expressly incorporated therein, and stated that the trial court retained such jurisdiction of the action "as is provided by law."

On July 2, 1985, the trial court issued a contempt citation against the husband for failure to comply with prior orders concerning child support payments and attorney fees. A hearing on the citation was set for September 9, 1985. On September 6, 1985, the husband filed a motion to abate child support payments for a limited period of time and to reduce child support payments. ² The husband appeared at the September 9 hearing, at the conclusion of which the trial court found the husband to be in contempt of court and imposed a sentence with the condition that the husband could purge himself of the contempt by payment of an agreed upon sum into the registry of the court. The husband subsequently reached an agreement with the wife respecting past due child support and attorney fee payments, which agreement was approved by the trial court.

On August 26, 1988, the wife filed a motion with the trial court to divide previously undivided marital property, specifically the military pension, ³ pursuant to section 14-10-113(1), 6B C.R.S. (1987). ⁴ In March 1989, the husband filed a motion requesting the trial court to order the wife to reimburse him for alleged child support overpayments. The trial court conducted an evidentiary hearing with respect to both motions, and on May 8, 1989, entered an order denying the wife's motion for division of property and granting the husband's motion for reimbursement of child support payments. ⁵ The trial court concluded that when the permanent orders were entered in 1984 it had no authority to treat the military pension as marital property and that any change in the law occurring after that date could not be applied retroactively.

On appeal, the Court of Appeals reversed. It concluded that pursuant to section 1408(c)(4) of the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408(c)(4) (1988) (the Act), the trial court did not acquire personal jurisdiction over the husband for the purpose of dividing the military pension until the husband filed his motion for reimbursement of child support payments, and that therefore the trial court lacked personal jurisdiction over the husband for such purpose in 1984. The Court of Appeals also concluded that applying the rule of In re Marriage of Gallo, 752 P.2d 47 (Colo.1988), to this case would not constitute retroactive application of the rule announced therein.

II

A

The husband asserts that the trial court had no authority in 1989 to divide his military pension as marital property. We agree.

In dissolution of marriage proceedings, a trial court must have personal jurisdiction over the parties as well as subject matter jurisdiction to enter orders establishing financial responsibilities and property interests of the parties. People in re Clinton, 762 P.2d 1381 (Colo.1988). See 1 Homer Clark, Jr., The Law of Domestic Relations in the United States, § 13.4 at 756 (2d ed. 1988). Both parties agree that the trial court had requisite personal and subject matter jurisdiction in 1984 to enter binding permanent orders, including awards of maintenance and child support and division of marital property located in Colorado. The parties disagree as to whether the trial court had authority in 1989 to divide the husband's military pension.

The husband contends that the trial court acquired the requisite personal jurisdiction over him in 1983 to consider the status of his military pension by virtue of sections 13-1-124(1)(e) and 13-1-125(1), 6A C.R.S. (1987), and Colorado Rules of Civil Procedure 4(k), relating to refusal of service, and 4(g), relating to service by publication. ⁶ The record does not clearly establish that on August 8, 1983, the process server both stated the name of the process to the husband and offered to deliver a copy thereof to the husband, as required by C.R.C.P. 4(k). However, the record does establish that service on the husband was accomplished in 1983 by publication. Thus the trial court had personal jurisdiction over the husband in 1984 for purposes of determining the status of the marriage; awarding custody of the minor children, child support and maintenance; and dividing marital property located in Colorado. See In re Marriage of Tucker, 226 Cal.App.3d 1249, 277 Cal.Rptr. 403 (1991).

The permanent orders entered by the trial court on March 1, 1984, included a division of the parties' marital property located in Colorado. At that time, pursuant to Colorado common law, the husband's military pension did not constitute divisible marital property. Ellis v. Ellis, 191 Colo. 317, 552 P.2d 506 (1976), overruled by In re Marriage of Gallo, 752 P.2d 47 (Colo.1988). Thus at the time the dissolution decree was entered the wife had no interest in the husband's military pension and the trial court had no authority to award the wife any interest therein. The trial court considered this fact in entering its various orders in 1984. ⁷ The permanent orders entered on March 1, 1984, provided that the wife "shall remain entitled to any and all military benefits, annuities, PX privileges, medical care and other incidences that she has enjoyed as [the husband's] wife." The permanent orders were subsequently expressly incorporated into the ultimate dissolution decree, which decree provided that the trial court retained continuing jurisdiction over the action "as is provided by law."

In our view, the above-quoted language of the permanent orders ensured only that the wife could continue receiving benefits to which she was entitled as a military spouse during the period of the parties' legal separation. We thus construe the language of the permanent orders and the dissolution decree referring to the trial court's continuing jurisdiction in the case to refer only to such authority to divide marital property as the trial court had under Colorado law on the dates the order and decree were entered. Thus, although the trial court retained personal jurisdiction over the husband with respect to all other aspects of the dissolution decree, it did not "retain" jurisdiction to subsequently treat the husband's military pension as marital property of both parties.

The Court of Appeals concluded that the trial court lacked personal jurisdiction over the husband in 1984 and thus, pursuant to section 14-10-113(1), 6B C.R.S. (1987), ⁸ had authority in 1989 to divide marital property. However, as we have indicated, the trial court acquired personal jurisdiction over the husband in 1983 under Colorado Rules of Civil Procedure for purposes of dividing all marital...