Morton v. U.S.

Decision Date17 May 1983
Docket NumberNo. 290-77,290-77
Citation708 F.2d 680
PartiesAllan Wayne MORTON, Appellee, v. The UNITED STATES, Appellant. Appeal
CourtU.S. Court of Appeals — Federal Circuit

Mary Mitchelson, Washington, D.C., argued for United States. With her on the brief was J. Paul McGrath, Asst. Atty. Gen., Washington, D.C.

Kaletah N. Carroll, Fairfax, Va., argued for appellee.

Before MILLER, SMITH and NIES, Circuit Judges.

JACK R. MILLER, Circuit Judge.

This appeal, in a case of first impression, is from a judgment 1 of the United States Claims Court based on its holding that Allan Wayne Morton was entitled to recover from the United States accrued amounts of money withheld from his compensation, as a Colonel in the United States Air Force, pursuant to writs of garnishment issued by the Circuit Court for the Tenth Judicial Circuit of Alabama. The case arises under Title 37, United States Code (relating to pay and allowances of the uniformed services), and the Fifth Amendment to the Constitution (prohibiting deprivation of property without due process of law). We affirm.


Colonel Morton was born in Alabama in 1934 and lived there until he joined the Air Force in 1957 at the age of 23. In 1954, he married Patricia Kay Morton in Alabama, where their first son was born. The Mortons moved to Georgia in 1957; then to Ohio in 1960; to Georgia in 1961; to the Philippines in 1963; and to New York in 1965. A second son was born in 1960. Colonel Morton served in Vietnam from 1968 to 1969, during which time his family lived in Florida. In 1969, after returning from Vietnam, Colonel Morton and his wife bought a home in Virginia, where they lived until September of 1973, at which time they separated pursuant to a written separation agreement. (Colonel Morton had been notified in August of 1973 that his next military assignment would be in Alaska.)

Mrs. Morton and her two sons moved to Alabama on September 16, 1973. Household goods were moved to Alabama at that time using Colonel Morton's military household goods moving allowance. It was Colonel Morton's understanding that in order to use his moving allowance for this purpose it was necessary to file his income tax returns for 1973 in Alabama. Accordingly, Colonel and Mrs. Morton filed joint federal and state income tax returns in Alabama for 1973. They also filed a joint state income tax return in Virginia for 1973. For 1974, Mrs. Morton filed individual federal and Alabama income tax returns, refusing to file joint returns with Colonel Morton, who also filed separate returns in Alabama because he hoped to persuade Mrs. Morton to file joint returns with him in order to reduce their tax liability. (Such joint returns would, of course, supersede the previously filed individual returns.) Colonel Morton also filed a 1974 individual state income tax return in Virginia. His income tax returns for 1975 and thereafter were filed in Alaska.

The separation agreement provided, inter alia, that the Virginia home was to be the sole property of Colonel Morton and that he was to make fixed monthly payments to Mrs. Morton for the support of the two children.

On June 1, 1974, Colonel Morton entered into a contract to purchase a permanent home for himself in Anchorage, Alaska. He intended to finance the purchase in part from the proceeds of the sale of the Virginia home. However, he was unable to consummate the Alaska purchase because, contrary to the provisions of the separation agreement, Mrs. Morton refused to sign the deed conveying the Virginia home. In a suit by Colonel Morton to obtain specific performance of the separation agreement, Mrs. Morton succeeded in having the agreement set aside.

Meanwhile, on August 28, 1974, Mrs. Morton filed suit in the Circuit Court for the Tenth Judicial District of Alabama for divorce, custody of the two children, support and maintenance for the children, and alimony. Colonel Morton received the suit papers by registered mail on September 17, 1974. Personal service was never effected. Colonel Morton contacted an attorney in the Judge Advocate General's office at Elmendorf Air Force Base in Alaska who advised him that service by mail was not sufficient to support a money judgment against him. Accordingly, Colonel Morton did not make an appearance in the Alabama suit. Judgment by default was entered against Colonel Morton on August 14, 1975. It granted Mrs. Morton a divorce and custody of the two children, and ordered Colonel Morton to pay Mrs. Morton $500 per month "as alimony ... and partial support and maintenance of the ... minor children."

On December 27, 1976, the Air Force Finance Office at Elmendorf received a writ of garnishment issued by the Register of the Alabama court which sought to garnish Colonel Morton's pay in the amount of $4100. After receiving notice of the writ, Colonel Morton again sought advice from an attorney in the Judge Advocate General's office. The attorney assured Colonel Morton that Mrs. Morton could not legally garnish his pay on the basis of the service of process by mail from the State of Alabama. Thereafter, on December 30, 1976, Colonel Morton protested to the Finance Office that he had paid all his obligations to Mrs. Morton, 2 that he was never properly served in the Alabama suit, that he was neither a resident nor a domiciliary of Alabama, and that the decree of the Alabama court ordering him to pay alimony and child support was void for lack of jurisdiction.

Despite these protests, the Finance Office filed an answer to the writ on January 11, 1977, confessing indebtedness of $4100. That amount was subsequently deducted from Colonel Morton's pay and was paid to the clerk of the Alabama court. Other subsequent writs were similarly honored by the Finance Office.

On May 26, 1977, Colonel Morton filed this action to recover the amounts he alleges were wrongfully withheld from his military pay.

The Decision Below

The trial court concluded that Colonel Morton was neither a resident nor a domiciliary of Alabama, stating:

When the plaintiff moved to Alaska in May 1974, it was his intention to purchase a home in Alaska and to establish a domicile in that State. He made his intention known at the time to associates.


A change in domicile requires physical presence at the new location, plus an intention on the part of the individual to make the new location his or her home, and the absence of any intention to have a home at a former domicile. Stamer v. United States, 148 Ct.Cl. 482, 490 (1960); cf. Holmes v. Sopuch, 639 F.2d 431, 433 (8th Cir.1981). When these elements concur, the change in domicile is instantaneous. Spurgeon v. Mission State Bank, 151 F.2d 702, 705-06 (8th Cir.), cert. denied, 327 U.S. 782 [66 S.Ct. 682, 90 L.Ed. 1009] (1945).

With respect to the plaintiff, the essential elements for acquiring a new domicile concurred when the plaintiff arrived in Alaska during the month of May 1974. From then until 1977, the plaintiff was an actual resident of Alaska, it was his intention to make Alaska his home, and he lacked any intention to have a home at a former domicile. Accordingly, it necessarily follows that the plaintiff was a domiciliary of Alaska, and not of Alabama, during the 1974-75 period when the divorce proceeding against him in Alabama was in progress.

Next, considering the "minimum contacts" doctrine of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny, the trial court concluded that--

it would offend "traditional notions of fair play and substantial justice" if the plaintiff's contacts with Alabama prior to July 1957 were to be regarded as necessarily conferring jurisdiction on the Alabama courts to enter a money judgment against him some 18 years later, when the plaintiff was a domiciliary and actual resident of Alaska, was not served personally within the territorial limits of Alabama, and did not do anything to subject himself to the jurisdiction of the Alabama court.

The third and final question considered by the trial court was whether subsection (f) of the garnishment statute, 42 U.S.C. Sec. 659, as amended by Pub.L. 95-30, Sec. 501, 91 Stat. 157 (1977), 3 grants the Government immunity from suit under the circumstances of this case. This subsection provides:

Non-liability of United States, disbursing officers, and

governmental entities with respect to payments

Neither the United States, any disbursing officer, nor governmental entity shall be liable with respect to any payment made from moneys due or payable from the United States to any individual pursuant to legal process regular on its face, if such payment is made in accordance with this section and the regulations issued to carry out this section.

"Legal process" is defined in 42 U.S.C. Sec. 662:


For purposes of section 659 of this title--


(e) The term "legal process" means any writ, order, summons, or other similar process in the nature of garnishment, which--

(1) is issued by (A) a court of competent jurisdiction within any State, territory, or possession of the United States, (B) a court of competent jurisdiction in any foreign country with which the United States has entered into an agreement which requires the United States to honor such process, or (C) an authorized official pursuant to an order of such a court of competent jurisdiction or pursuant to State or local law, and

(2) is directed to, and the purpose of which is to compel, a governmental entity, which holds moneys which are otherwise payable to an individual, to make a payment from such moneys to another party in order to satisfy a legal obligation of such individual to provide child support or make alimony payments.

The regulations issued to carry out 42 U.S.C. Sec. 659 provide in pertinent part:

(f) "Legal process" means any writ, order, summons, or other similar process in the nature of garnishment, * * * which--

(1) Is issued by:

(i) A court of competent...

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3 cases
  • Millard v. U.S.
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • September 28, 1990
    ...the circumstances in which state law would not impose liability on a garnished private employer. See Morton v. United States, 708 F.2d 680, 697 (Fed.Cir.1983) (Nies, J., dissenting), rev'd, 467 U.S. 822, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984). Under general principles of garnishment, an empl......
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    • U.S. Court of Appeals — Seventh Circuit
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    ...(in this case, Keith Sloan) is a necessary essential to the validity of a judgment against the garnishee. See Morton v. United States, 708 F.2d 680, 686 n. 5 (Fed. Cir.1983), rev'd on other grounds, 467 U.S. 822, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984); see also Passarella v. Hilton Int'l Co.......
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    • U.S. Supreme Court
    • June 19, 1984
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