Marriage of Tucker, In re

• Decision Date: 15 January 1991
• Docket Number: No. D010851,D010851
• Citation: 277 Cal.Rptr. 403,226 Cal.App.3d 1249
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Classie M. and Fletcher S. TUCKER. Classie M. TUCKER, Appellant, v. Fletcher S. TUCKER, Respondent.

Page 403

277 Cal.Rptr. 403

226 Cal.App.3d 1249

In re the MARRIAGE OF Classie M. and Fletcher S. TUCKER Classie M. TUCKER, Appellant, v. Fletcher S. TUCKER, Respondent.

No. D010851.

Court of Appeal, Fourth District, Division 1, California.

Jan. 15, 1991.

Review Denied March 27, 1991.

[226 Cal.App.3d 1251] Susan Hildebrand, for appellant.

Brown & Brown and John P. Knoll, for respondent.

BENKE, Acting Presiding Justice.

In this case appellant Classie M. Tucker (Classie) appeals that portion of a trial court judgment determining the trial court did not have jurisdiction over the military retirement benefits of respondent Fletcher S. Tucker (Fletcher).

The trial court found Fletcher did not consent to the trial court's jurisdiction over his military retirement. Further the trial court found Fletcher was not a resident or domiciliary of California either during the parties' marriage or thereafter. These findings are fully supported by the record. Thus the trial court did not err in finding that, under title 10, United States Code section 1408(c)(4), it had no jurisdiction over Fletcher's military retirement benefits.

FACTUAL SUMMARY

Classie and Fletcher were married on October 20, 1974, and separated on August 20, 1988. Classie filed a petition for dissolution of their marriage on October 5, 1988.

Before Fletcher filed a response to the petition, his attorney contacted Classie's counsel and told her Fletcher was going to contest the trial court's jurisdiction over his military retirement benefits. According to Fletcher's counsel he told Classie's counsel: " 'There are two ways I can raise this issue. Either by a motion to quash or in my response. Is it all right with you that I raise it with ... the response rather than the motion to quash? Because these people don't have a lot of money. And that's an economical way of doing it all at once.' "

According to Classie's counsel, she told Fletcher's counsel she had no objection to the procedure he suggested. However according to Classie's counsel, "I didn't mean to suggest, in my agreeing that he was certainly free to do that, that we would waive any right we had to argue the point later, whether that was sufficient to protect his client."

On November 29, 1989, the parties entered into a stipulation and order to show cause which temporarily awarded physical and legal custody of their children to Classie and which provided her $500 a month in child and spousal support. The stipulation stated "Jurisdiction question over retired pay reserved."

Fletcher filed a response to the petition on January 10, 1989. The response asks the superior court to confirm Fletcher's military retirement pay as his separate property, to make a declaration regarding the parties' community and quasi-community property, including proceeds from the sale of the parties' California residence, to award joint legal and physical custody of the parties' children and to make an award of child support. However, Fletcher's response also states: "Respondent's military retired pay not subject to California The declaration attached to Fletcher's response states in pertinent part: "I am not a resident of the State of California and therefore request that this Court acknowledge that it should not exercise jurisdiction over my military retired pay since, under the Federal Uniformed Services Former Spouse's Protection Act, I do not consent to jurisdiction and I am not a domiciliary or resident of California. My appearance is not a general appearance but is made solely for the limited purpose of avoiding Default and placing before the Court those issues over which it admittedly has jurisdiction, to wit: child custody, child support, spousal support, and division of property which has its situs in California, excluding military retired pay."

jurisdiction--Please see Declaration of Fletcher S. Tucker incorporated herein."

At trial Classie's counsel argued that by filing his response to the petition instead of a motion to quash, Fletcher consented to the trial court's jurisdiction over his military pension. Without reaching the issue of whether Classie's counsel had agreed that Fletcher could challenge jurisdiction in his response, the trial court found that Fletcher had nonetheless preserved the question. Thereafter the court heard testimony from Fletcher as to his domiciliary.

Fletcher testified he was born and raised in South Carolina and joined the Navy in 1960. Until 1977 his military home of record was South Carolina. In 1977 Fletcher changed his home of record to Florida where he was stationed at that time. While in Florida he bought and sold two homes and he and Classie adopted a son, David.

Because David suffers from a disability, Florida provides $200 a month for his support. Fletcher testified that in addition to the support provided by Florida, David also receives special assistance from the California educational system.

In 1984 the Navy stationed Fletcher in San Diego. With the proceeds from the sale of his second Florida house, he and Classie bought a home here. He testified Navy housing was not available to him and his family.

In addition to his active duties with the Navy, for 20 months he worked as a pastor at a local church and for 5 months he worked as a bus driver for Naval recreational services at North Island Naval Base. In order to drive the bus he was required to obtain a California driver's license.

Because of the nonmilitary pay he received while he was in California, Fletcher filed three nonresident state income tax returns. He also voted by absentee ballot in a Florida election.

While Fletcher was here, he was on the board of directors of the PTA at his children's school and opened a checking account. He also applied to National University but never attended any classes.

Finally Fletcher testified that at the time he was ordered to San Diego, the thought of retiring here was appealing to him but that in the year before his retirement he had decided to return to Florida. He stated: "California is just--the atmosphere was not for me. Churches were not for me. I wanted to pastor full time. She had expressed she, too, would like to have gone to live in Florida at that point."

On the basis of Fletcher's testimony, the trial court concluded Fletcher had never formed the intent to permanently reside in California and accordingly the trial court had no jurisdiction over Fletcher's military retirement.

A judgment dissolving the marriage, dividing the property over which the parties stipulated the trial court had jurisdiction, providing for spousal and child support, and determining the trial court had no jurisdiction over the military retirement was entered. Classie filed a timely notice of appeal.

ISSUE ON APPEAL

On appeal Classie argues the trial court erred in declining jurisdiction over Fletcher's military retirement.

DISCUSSION

I FUSFSPA

In McCarty v. McCarty (1981) 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 the However a state court may not exercise the power provided by FUSFSPA "unless the court has jurisdiction over the member [of the armed services] 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." (10 U.S.C. § 1408(c)(4).)

United States Supreme Court held that under the Supremacy Clause of the United States Constitution (art. VI, cl. 2), a state court had no power to divide a military pension upon the dissolution of a marriage. In response to McCarty, Congress enacted the Federal Uniformed Services Former Spouses' Protection Act (FUSFSPA), 10 United States Code section 1408. FUSFSPA gives state courts the power, under certain conditions, to divide military pensions according to state law. (10 U.S.C. § 1408(c)(1).)

Classie has not argued, either here or in the trial court, that Fletcher's residency in California was other than because of his military assignment. Rather she contends FUSFSPA provided the trial court with power over Fletcher's military pension because he consented to the trial court's jurisdiction and because in any event he had been a domiciliary of California during their marriage.

II Consent

Classie argues that in asking the trial court to determine property rights, child custody and support issues, Fletcher consented to the jurisdiction of the trial court within the meaning of FUSFSPA. She further argues that because under rule 1234 of the California Rules of Court Fletcher had the right to bring a motion to quash, his response must be interpreted as a consent to the trial court's jurisdiction.

At the outset it is important to resolve an ambiguity in FUSFSPA. As we have indicated a state court has power under FUSFSPA to divide a military pension if the court's jurisdiction is by reason of the military member's "consent to the jurisdiction of the court." (10 U.S.C. § 1408(c)(4)(C).) Classie argues that by consenting to the trial court's resolution of certain portions of the dissolution action--child custody, support and portions of the parties' personal property--Fletcher consented to the trial court's jurisdiction over his pension as well. Classie's position in this regard is consistent with assumptions some courts have made with respect Congress's intent in enacting 10 United States Code section 1408(c)(4)(C). (See e.g. In re Marriage of Jacobson (1984) 161 Cal.App.3d 465, 470, 207 Cal.Rptr. 512; Gowins v. Gowins (La.1985) 466 So.2d 32, 35; Seeley v. Seeley (Tex.App. 3 Dist.1985) 690 S.W.2d 626, 627.) In one respect at least Classie's argument is also consistent with considerations of judicial economy. If a member of the military has no objection to having child custody, support and some property issues resolved in a particular forum, it does not serve the interests of judicial economy to permit him to nonetheless insist that division of his...