Matter of Marriage of Smith

• Decision Date: 11 October 1982
• Docket Number: No. SA-82-CA-522.,SA-82-CA-522.
• Citation: Matter of Marriage of Smith, 549 F.Supp. 761 (W.D. Tex. 1982)
• Parties: In the Matter of the MARRIAGE OF Letha H. SMITH and Thomas D. Smith, III. and In the Interest of Amy Kathryn SMITH, a Minor Child.
• Court: U.S. District Court — Western District of Texas

549 F. Supp. 761

In the Matter of the MARRIAGE OF Letha H. SMITH and Thomas D. Smith, III and In the Interest of Amy Kathryn SMITH, a Minor Child.

No. SA-82-CA-522.

United States District Court, W.D. Texas, San Antonio Division.

October 11, 1982.

Cheryl Wilson, San Antonio, Tex., for plaintiffs.

Michael Bowles, San Antonio, Tex., for defendants.

ORDER

SESSIONS, Chief Judge.

On this date came to be considered Thomas D. Smith, III's Petition for Removal, Letha H. Smith's motion to remand to state district court, and Thomas D. Smith, III's response to the motion to remand the cause to state district court. Having considered said pleadings, the documents before it, and the applicable law, this Court finds that the above-entitled cause is not removable to this Court pursuant to 28 U.S.C. § 1441(b) and § 1442a¹.

On February 21, 1979, Letha H. Smith filed an original petition in the 150th District Court of Bexar County, Texas, seeking to dissolve her marriage to Thomas D. Smith, III. The divorce was granted on August 31, 1979, incorporating by reference a property settlement dated July 31, 1979 and agreed upon by the parties. One provision contained in both the property settlement and the divorce decree granted Letha H. Smith the monthly sum of $745.00 or 40.5 percent, whichever is more, of Thomas D. Smith's net military retirement pay. (Divorce decree at 3, property settlement at 4).

On July 13, 1982, Letha Smith brought a motion for contempt against Thomas D. Smith, III in the same court, the 150th District Court of Bexar County, alleging Mr. Smith's failure to pay Ms. Smith her rightful portion of his military retirement pay for a one-year period beginning July 1, 1981. Ms. Smith further sought costs and attorney's fees for bringing the motion for contempt, plus Mr. Smith's punishment in the form of a fine and/or confinement in the county jail for failure to comply with the state court's order of August 31, 1979.

On July 28, 1982, Mr. Smith removed the motion for contempt from state court to this Court pursuant to 28 U.S.C. § 1441(b) and 28 U.S.C. § 1442a. He alleged that the action was one removable under the aforementioned statutes because it is a civil action arising under a law of the United States, and removable without regard to the citizenship or residence of the parties. Furthermore, Mr. Smith asserted that the statutes apply because his act of nonpayment to his former spouse is one for which he claims a right under the federal laws governing the armed forces, i.e., the military retirement pay statutes, including those governing disability retirement pay. Mr. Smith relies on McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981); Ex Parte Burson, 615 S.W.2d 192 (Tex.1981); Ex Parte Johnson, 591 S.W.2d 453 (Tex.1979); Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979); Ridgway v. Ridgway, 454 U.S. 46, 102 S.Ct. 49, 70 L.Ed.2d 39 (1981); and 38 U.S.C. § 3101 to demonstrate to this Court the necessity of federal jurisdiction over his claim.²

Ms. Smith then filed a motion to remand to state court, asserting that the removal petition contains neither an allegation that the federal court has original jurisdiction nor an allegation that Mr. Smith is presently in the armed forces of the United States. In addition, Ms. Smith urges that the United States Supreme Court's decision in McCarty v. McCarty, supra, holding that military retirement benefits are not subject to community property division, cannot be applied retroactively, and, therefore, she is entitled to the enforcement of the pre-McCarty decision divorce decree awarding her a share of Mr. Smith's military retirement benefits.³ Ms. Smith urges that the decree of divorce rendered by the 150th Judicial District Court of Bexar County, Texas, is a final judgment of that court and that it has a res judicata effect as to all issues contained therein. The essence of her motion before the state court is in the nature of an enforcement remedy to compel Mr. Smith to comply with the terms of the divorce decree.

Mr. Smith attempts to demonstrate the necessity of federal acceptance of jurisdiction by pointing out that the United States Congress has recently acted in the area of state court division of military retirement benefits in divorce cases. The Uniformed Services Former Spouses' Protection Act, Title X of the Department of Defense Authorization Act of 1983 (Pub.L. No. 97-252), H.R.Rep. No. 97-749, 97th Cong., 2d Sess. 13-22 (1982) hereinafter referred to as "House Report", recently became law and is scheduled to go into effect on February 1, 1983, U.S.Code Cong. & Admin.News 1982, p. 1555. The new law will allow military retirement benefits to be divided according to community property laws in community property jurisdictions.⁴ House Report at 15, 10 U.S.C. § 1408(c)(1). Furthermore, the new law states that the Act will not disturb the provisions of court orders that become final before June 26, 1981. House Report at 21-22, § 1006(b). As the Smith divorce became final in 1979, this recent legislation will have no effect on either party in this case, and Mr. Smith's position is no better than it was before McCarty or the new law.

The first jurisdictional statute cited by Mr. Smith, 28 U.S.C. § 1441(b), is of no help to him in seeking to invoke this Court's jurisdiction. That statute states:

Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. Emphasis added.

It is well settled that this Court has no original jurisdiction over divorce. See Barber v. Barber, 62 U.S. (21 How.) 582, 584, 16 L.Ed. 226 (1859); In re Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 853, 34 L.Ed. 500 (1890); Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383, 50 S.Ct. 154, 155, 74 L.Ed. 489 (1930). The motion for contempt in the instant case is incident to a divorce proceeding, i.e., it is a motion in a divorce case to punish a party for violation of a prior order in that same divorce case. As this Court would not have had original jurisdiction over the Smith's divorce action in 1979, it would not have had original jurisdiction over the contempt proceeding, and thus the Court does not have removal jurisdiction under § 1441(b). As this Court stated in Ray v. Ray, No. SA-81-CA-376 (W.D.Tex. June 2, 1982):

The rules for determining if a court has federal jurisdiction are well established. First, federal law must be an essential element of the plaintiff's cause of action. Gully v. First National Bank in Meridian, 299 229 U.S. 109, 112, 57 S.Ct. 96, 97 81 L.Ed. 70 (1936); Maxwell v. First National Bank of Monroeville, 638 F.2d 32, 35 (5th Cir.1981); In re Carter, 618 F.2d 1093, 1100 (5th Cir.1980). Second, the federal question that is the predicate for removal "must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal." Gulley v. First National Bank in Meridian, 299 U.S. at 1113, 57 S.Ct. at 98. Although a plaintiff's state court pleadings control removability, Paxton v. Weaver, 553 F.2d 936 (5th Cir.1977), the accepted rule in the Fifth Circuit is that "upon removal the removal court should inspect the complaint carefully to determine whether a federal question is necessarily presented." In re Carter, supra, at 1101. Third, the federal question raised must be a "substantial" one. Hagans v. Lavine Levine, 415 U.S. 528, 536, 94 S.Ct. 1372, 1378 39 L.Ed.2d 577 (1974). Finally, the party seeking removal bears the burden of satisfying each of these pre-conditions. Phillips Petroleum Company v. Texaco, Inc., 415 U.S. 125, 127-28, 94 S.Ct. 1002, 1003 39 L.Ed.2d 209 (1974).

Mr. Smith has failed in his burden to establish that federal law is an essential part of Ms. Smith's motion for contempt. Although the motion for contempt seeks to compel payments from property which can be characterized as federal military retirement benefits, the essence of the ex-wife's motion is to compel her former spouse to comply with the provisions of the 1979 divorce decree. See In re Marriage of Pardee, 408 F.Supp. 666 (C.D.Cal.1976). Thus, as no basis for federal original jurisdiction appears on the face of Ms. Smith's motion for contempt, her ex-husband is not entitled to invoke the provisions of § 1441(b).

Mr. Smith's second basis for federal jurisdiction is based on 28 U.S.C. § 1442a, which states:

A civil or criminal prosecution in a court of a State of the United States against a member of the armed forces of the United States on account of an act done under color of his office or status, or in respect to which he claims any right, title, or authority under a law of the United States respecting the armed forces thereof, or under the law of war, may at any time before the trial or final hearing thereof be removed for trial into the district court of the United States for the district where it is pending in the manner prescribed by law, and it shall thereupon be entered on the docket of the district court, which shall proceed as if the cause had been originally commenced therein and shall have full power to hear and determine the cause.

Ms. Smith challenges removal on the basis of this statute because there has been no allegation that Mr. Smith is presently a member of the armed forces. However, United States Supreme Court holdings indicate that a retired military serviceman remains a member of the armed forces. McCarty v. McCarty, supra, 101 S.Ct. at 2735-36, citing United States v. Tyler, 105 U.S. 244, 26 L.Ed. 985 (1881); Kahn v. Anderson, 255 U.S. 1, 6-7, 41 S.Ct. 224, 225, 65 L.Ed. 469 (1921); Puglisi v. United States, 215 Ct.Cl. 86, 97...