Petters v. Petters, 07-CA-59311

Decision Date11 April 1990
Docket NumberNo. 07-CA-59311,07-CA-59311
PartiesJoyce PETTERS v. William L. PETTERS.
CourtMississippi Supreme Court

Richard Grindstaff, Columbus, for appellant.

No Brief Filed for appellee.


ROBERTSON, Justice, for the Court:


This appeal presents for consideration federal statutory limitations upon this state's jurisdictional authority to adjudge a wife's claim of rights in her non-resident husband's military retirement benefits. In this limited context, we find that by special federal enactment the length of this state's long-arm has been considerably abbreviated.

We affirm the Chancery Court's dismissal for lack of personal jurisdiction on the claim for a share of the non-resident serviceman's pension, but reverse and remand on another claim.


William F. Petters presently resides in Waxahatchie, Texas, and has not been in Mississippi since April of 1974. Prior to that time, it appears that William was a domiciliary of the state of Mississippi. William is a native of Corinth, Mississippi, and graduated from high school in Corinth. Upon graduation he enlisted in the United States Air Force. In April of 1951, William married Joyce Petters in Corinth, Mississippi, and they lived together as husband and wife until April of 1974.

For twenty-two years, William was a professional soldier. He moved his wife and family to Columbus, Mississippi, in 1961, incident to assignment to Columbus Air Force Base, and remained there through 1969. In 1969, the Air Force transferred William to Thailand for eighteen months, then to Barksdale Air Force Base, Louisiana. William's family, his wife Joyce and four children, remained in Columbus, Mississippi, and, while at Barksdale AFB, he would commute back to Mississippi on the weekends. William retired from the Air Force in August of 1972 and returned to Columbus at that time. As indicated above, he left Mississippi in April of 1974 and has not been back.

On April 8, 1987, Joyce Petters filed her complaint in the Chancery Court of Lowndes County, seeking a divorce on grounds of desertion, Miss.Code Ann. Sec. 93-5-1 [Fourth] (1972). She sought judgment for "the sum of $5,000.00 for repayment of monies that she was forced to pay when the defendant deserted her." In addition, Joyce prayed for an award of "one-half ( 1/2) of pension which the defendant receives from the United States Air Force."

Joyce caused process to be served on William in the state of Texas by publication. See Rule 4(c)(4), Miss.R.Civ.P. William made no appearance. On June 16, 1987, the Chancery Court entered its final judgment granting Joyce a divorce on grounds of desertion and declaring the bonds of matrimony theretofore existing between the parties dissolved. The Court made no award of financial or monetary relief, see Noble v. Noble, 502 So.2d 317 (Miss.1987), but retained jurisdiction for that purpose should Joyce thereafter secure personal service of process on William.

On October 21, 1987, Joyce filed in the Chancery Court a motion for issuance of new process and for a judgment for the $5,000.00 debt alleged to be owing to her and for one-half ( 1/2) of William's military retirement pension. This time process was personally served upon William in Waxahatchie, Texas, on October 28, 1987. See Rule 4(c)(1), Miss.R.Civ.P. Again, William made no appearance of any kind.

Notwithstanding, the Chancery Court on May 6, 1988, dismissed the complaint for failure of personal jurisdiction over William. The Court predicated its decision on the restrictive provisions of the Federal Uniformed Services Former Spouses' Protection Act, 10 U.S.C. Sec. 1408(c)(4). The Court in no way addressed the question whether Joyce had any right in William's retirement pension such that she could enforce it in a court of this state if personal jurisdiction should ever be obtained over William.

Joyce now appeals to this Court.


First, a few basics. Jurisdiction precedes adjudication. Before a court may say anything worth listening to regarding the (de)merits of a party's claim, that court must have authority to speak. That court has such authority only when the claim is one within the court's subject matter jurisdiction and after the court has acquired personal jurisdiction of the parties. If the court is without jurisdiction--subject matter or personal--no one is bound by anything the court may say regarding the (de)merits of the case. We have recently noted the point in McDaniel, Adm'r v. Ritter, 556 So.2d 303, 307, n. 4 (Miss.1989). Put in Civil Rules parlance, defenses under Rule 12(b)(1) and (b)(2) precede those under Rule 12(b)(6). See, e.g., Combs v. Bakker, 886 F.2d 673, 675-76 (4th Cir.1989).

It is easy to see that Rule 12(b)(2) (personal jurisdiction) and Rule 12(b)(6) (failure to state a claim) inquiries are separate and distinct. Educational Placement Services v. Wilson, 487 So.2d 1316, 1320 (Miss.1986); Administrators of the Tulane Educational Fund v. Cooley, 462 So.2d 696, 701 (Miss.1984); see also Val Leasing, Inc. v. Hutson, 674 F.Supp. 53, 55 (D.Mass.1987). A non-resident's amenability to suit here in no way turns on the viability of the claim the plaintiff asserts. Conversely, that the plaintiff's claim is without merit is never sufficient to establish lack of personal jurisdiction. The non-resident does not prevail on his Rule 12(b)(2) motion by convincing the court that the plaintiff's suit is groundless.

These realities led the late Judge Henry J. Friendly to recognize that

[n]ot only does logic compel initial consideration of the issue of jurisdiction over the defendant--a court without such jurisdiction lacks power to dismiss a complaint for failure to state a claim--but the functional difference that flows from the ground selected for dismissal likewise compels considering jurisdiction and venue questions first. A dismissal for lack of jurisdiction or improper venue does not preclude a subsequent action in an appropriate forum, whereas a dismissal for failure to state a claim upon which relief can be granted is with prejudice.

Arrowsmith v. United Press Int'l, 320 F.2d 219, 221 (2d Cir.1963); see also Season-All Industries, Inc. v. Turkiye Sise Ve Cam Fabrikalari, 425 F.2d 34, 38 (3d Cir.1970); Scullin Steel Co. v. National Railway Utilization Corp., 520 F.Supp. 383, 388 (E.D.Mo.1981); Bruce v. Fairchild Industries, Inc., 413 F.Supp. 914, 916 (W.D.Okla.1974); Attorney General v. Industrial Nat. Bank of Rhode Island, 380 Mass. 533, 404 N.E.2d 1215, 1217 (1980); 5 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1351, at 563 (1969).

Understanding why Rule 12(b)(2) inquiries are not only separate from but also precede consideration of Rule 12(b)(6) inquiries has an historical ground. In a former time, a non-resident defendant did not dare demur first for fear of forfeiting his in personam jurisdiction defense. Today, answers commonly assert 12(b)(2) and 12(b)(6) and many other defenses, without suggestion that the former is waived by the others.

It may well be that Joyce is not entitled to relief on her demand for "one-half ( 1/2) of the Defendant's pension from the United States Air Force," but we may not tell Joyce this bad news with any authoritative effect until we first get William in court and give Joyce a chance to convince us otherwise. 1

What we are saying, in other words, is that, even if Joyce were entitled to recover an interest in William's military retirement pension, the Court would have no authority to award it to her until it acquires personal jurisdiction over William. The point is analogous to the way we view the factual allegations of a complaint when a defendant mounts a jurisdictional attack. In those cases we take as true the well pleaded allegations of the complaint. Common Cause of Mississippi v. Smith, 548 So.2d 412, 415 (Miss.1989); Riley v. Moreland, 537 So.2d 1348, 1351 (Miss.1989); Marx v. Truck Renting & Leasing Assoc., Inc., 520 So.2d 1333, 1339 (Miss.1987); American Fidelity Fire Insurance Co. v. Athens Stove Works, Inc., 481 So.2d 292, 296 (Miss.1985). By the same token in our present procedural posture, we take as viable the substantive legal premises of the complaint.


These things said, we turn to the case at bar. The Chancery Court dismissed Joyce's complaint because it thought William Petters, sixteen-years a Texan, could not be subject to suit regarding his retirement pension in Mississippi, and our question is whether the Chancery Court was correct in that regard. The court has no authority to adjudge the (de)merits of Joyce's claim (even by saying that, under Mississippi law, she has no rights in her former husband's military retirement pension) until it has both Joyce and William "in court." 2

Personal jurisdiction jurisprudence, constitutional statutory amenability, as well as implementing procedure, is no different in domestic relations litigation than in other cases. Ordinarily this state has authority to adjudge the important rights of a non-resident so long as the defendant has constitutionally adequate minimum contacts with this state, see Rothschild v. Hermann, 542 So.2d 264, 265 (Miss.1989); Carpenter v. Allen, 540 So.2d 1334, 1335-37 (Miss.1989); Penton v. Penton, 539 So.2d 1036, 1038 (Miss.1989); Noble v. Noble, 502 So.2d 317, 319-20 (Miss.1987); see generally Kulko v. California Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132, 140 (1978), and other legal requisites are satisfied. McDaniel, Adm'r v. Ritter, 556 So.2d 303, 307 n. 4 (Miss.1989).

In September of 1982, the Congress enacted FUSFSPA and resolved a controversy theretofore existing regarding state authority to adjudge the rights of (ex)spouses in a retired serviceman's military retirement pension. At issue today is a provision respecting personal jurisdiction and affording the ex-serviceman protections in that regard.

A court may not treat the disposable retired...

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