Marriage of Brown, Matter of

• Decision Date: 13 July 1990
• Docket Number: No. 63771,63771
• Citation: 247 Kan. 152,795 P.2d 375
• Parties: In the Matter of the MARRIAGE OF Sarah BROWN, Appellee, and Willie Brown, Appellant.
• Court: Kansas Supreme Court

Page 375

795 P.2d 375

247 Kan. 152

In the Matter of the MARRIAGE OF Sarah BROWN, Appellee,

and

Willie Brown, Appellant.

No. 63771.

Supreme Court of Kansas.

July 13, 1990.

Syllabus by the Court

In an action under K.S.A. 60-1611 brought by the plaintiff wife against her ex-husband for support, the record is examined and it is held: (1) The district court did not err in finding that it had in personam jurisdiction over the ex-husband, and (2) the district court erred in awarding the plaintiff past due support.

David P. Troup, of Weary, Davis, Henry, Struebing & Troup, Junction City, argued the cause and was on the briefs for appellant.

Charles W. Harper, of Harper, Hornbaker & Altenhofen, Chartered, Junction City, argued the cause and was on the briefs for appellee.

ALLEGRUCCI, Justice:

This is a domestic relations action in which appellee Sarah Brown is seeking spousal support from appellant, Willie Brown. This action was originally filed as a divorce action but became a K.S.A. 60-1611 action after a Georgia court granted appellant a divorce. The district court found that it had jurisdiction and granted Sarah a judgment for past due support. The Court of Appeals affirmed the district court in an unpublished opinion and remanded with directions. 785 P.2d 183 (1989). We granted Willie Brown's petition for review.

Sarah and Willie Brown were married in Adams County, Mississippi, on January 29, 1977. Both were residents of Mississippi. Willie was on leave from the United States Army as an enlisted E-4, stationed in Germany. He completed his Germany tour in October 1977 and was reassigned to Fort Stewart, Georgia. The parties lived together in Hinesville, Georgia, until March 1980, when Willie was transferred back to Germany. Sarah returned to Mississippi, where she had a job.

Willie was transferred to Fort Riley, Kansas, in April 1982. He leased an apartment in Junction City and Sarah joined him in June 1982. In October 1982, Sarah got a job with the Army Air Force Exchange Service (AAFES) at Fort Riley, working full time as an hourly employee. Problems in the marriage developed by 1984. Sarah claimed that Willie was acting "funny," was smoking marijuana on a daily basis, and was having an affair with their next door neighbor, Earlene Beasley, who was a widow with two children.

Sarah testified that, in June 1984, Willie came home angry one night and told her to get out of his house. According to Sarah, she left that night and returned for only one night during the next 16 months. When she left, she took a large suitcase with clothes and personal belongings. During the next year, she stayed with their friends, the Parkers, at Fort Riley.

Willie indicated Sarah left in June 1984 of her own accord and returned several times during the next 16 months to spend two or three days with him. In March 1985, Sarah moved in with a girlfriend. In April 1985, Willie moved to a two-bedroom house in Junction City, where he lived until he left for Korea in October 1985. During this time, Willie did not give Sarah any financial help although he received more than $300 per month in Basic Allowance for Quarters (BAQ) from the Army, ostensibly for the support of his wife, Sarah. Willie contended that, during this time period, Sarah left her personal belongings and clothing at the marital residence and that he at no time excluded her from the house.

A few days before leaving for Korea, Willie told Sarah to get her things from the house. She went, accompanied by Sergeant Major Parker. She took a few boxes of clothing that Willie had packed. When she asked for the car, household goods, and furniture, Willie acted as if he had not heard her. Earlene drove the Thunderbird during Willie's one-year tour of duty in Korea. He put the furniture and household goods in storage in Junction City.

In December 1985, Sarah filed for divorce in Geary County District Court, Case No. 85-D-521. A temporary support order was entered but service was not made on Willie in Korea. The divorce was eventually dismissed in February 1986.

Some time after departing for Korea, Willie learned that Sarah had filed for divorce and that temporary support had been ordered ex parte, requiring him to pay $200 per month, although he was never served with the order. Willie insisted that, after learning of the support order, he mailed Sarah $200 a month by money order, beginning in December 1985. Sarah never received any of these payments. She did admit that Willie used money orders to send her $200 a month when he was stationed in Germany after they were first married and she was living in Mississippi. Willie insisted he continued to send $200 a month to Sarah through February 1987 but he no longer had any money order receipts. The envelopes containing the money orders were not returned to Willie.

Willie completed his assignment in Korea in November 1986 and returned to Junction City for a few days to arrange shipment of his stored furniture and household goods to Fort Stewart, Georgia. Willie did not contact Sarah while he was in Junction City. On February 28, 1987, Sarah received a bank money order in an amount equal to Willie's BAQ, $348.48. Sarah received a second money order from a Hinesville, Georgia, bank in the sum of $348 in April 1987. Both money orders were sent by certified mail.

Meanwhile, on July 27, 1987, Willie filed for divorce in Liberty County, Georgia, Case No. 87-V-16492. Sarah was served in Geary County, Kansas, on July 31, 1987, but did not file an answer or participate in the Georgia proceedings. She filed this action on August 27, 1987. Willie was personally served on September 16, 1987, in Liberty County, Georgia. A general answer and denial was filed by the attorney appointed on Willie's behalf.

Trial on the Kansas action was postponed when Willie's present attorney entered his appearance, filed a motion for continuance, and, later, a motion to quash the service of process and to dismiss the Kansas action for lack of jurisdiction over Willie and the subject matter. A motion for summary judgment was filed on Willie's behalf on March 22, 1988. On May 25, 1988, the court overruled Willie's motions to quash and dismiss, and for summary judgment. The court found that Willie lived in the marital relationship with Sarah within the State of Kansas, and Sarah continues to reside within the state; that the court has jurisdiction over the parties and subject matter; that service was sufficient and appropriate under K.S.A. 60-308; and that the extension of personal jurisdiction over Willie is not contrary to the Fourteenth Amendment to the United States Constitution and does not deprive Willie of due process of law.

A telephone discovery deposition was taken of Willie on May 11, 1988. In his deposition, Willie testified that he maintains Mississippi as his domicile and home of record for military purposes, has never paid state income tax to the State of Kansas, has never registered to vote in Kansas, and has never been issued a Kansas driver's license or registered a car in Kansas. The case was tried to the court on April 17, 1989.

In its findings of fact, the district court found that Sarah and Willie had lived in the marital relationship in Kansas from March 1982 until June 1984. The court found that Sarah and Willie were residing separately and apart from July 1984 through October 1987. The court further found that Sarah and Willie were divorced on October 30, 1987, which is presumably in reference to the Georgia default divorce which was granted on November 12, 1987. Then the court found as follows:

"10. From July 1984 through October 1987 the respondent received a total of $14,005.00 United States Army BAQ Dependent Support allowance.

"11. From July 1984 through October 1987 the respondent paid to the petitioner for her support the sum of $2,028.48.

"12. The respondent received the sum of $11,976.52 for the support of the petitioner and from which the petitioner received no benefit."

In its conclusions of law, the court held that it had jurisdiction of the parties and the subject matter. It also held that the provisions of United States Army Regulation 608-99-1-8 require the minimum support of a dependent to be equal to the soldier's BAQ. Finally, the court concluded as follows:

"3. As a minimum level of support the petitioner herein is entitled to those amounts received by the respondent as BAQ for her support.

"The court finds that to prevent the unjust enrichment of the respondent and to provide the past due support to which the petitioner is entitled the petitioner is hereby granted judgment for past due support in the amount of $11,976.52."

Following the judgment, Willie filed a notice of appeal on May 1, 1989, and a motion for stay pending appeal and determination of a supersedeas bond. Sarah then filed a wage garnishment to enforce the judgment against Willie's employer, the United States of America. Willie opposed the garnishment, arguing that if it was not alimony, garnishment of federal wages was not permissible. In its order of May 23, 1989, the trial court held that the judgment of $11,976.52 for support met all federal and state requirements of a judgment enforceable as alimony by wage garnishment. The court allowed garnishment and refused to limit the garnishment to 25%, thus indicating the court considered it to be support; the court denied Willie's motion to stay pending appeal and set a supersedeas bond in the sum of $15,000.

The Court of Appeals affirmed the trial court's finding that it had in personam jurisdiction to order maintenance. In reaching this conclusion, the Court of Appeals stated that the term "marital domicile" is "nothing more than shorthand for the requirements of 60-308(b)(8) itself." Willie contests this statement, noting that in Varney v. Varney, 222 Kan. 700, 702, 567 P.2d 876 (1977), this court stated that establishing marital domicile within this state is sufficient minimum...