Southern v. Glenn

• Decision Date: 03 October 1990
• Docket Number: No. 07-CA-59364,07-CA-59364
• Parties: Mary Janice SOUTHERN (formerly Mary Janice Glenn) v. James Jerry GLENN.
• Court: Mississippi Supreme Court

Page 281

568 So.2d 281

59 USLW 2356

Mary Janice SOUTHERN (formerly Mary Janice Glenn) v. James Jerry GLENN.

No. 07-CA-59364.

Supreme Court of Mississippi.

Oct. 3, 1990.

W.E. Gore, Jr., Jackson, MS, for Appellant.

Jonathan B. Fairbank, Cupit Jones & Fairbank, Jackson, MS, for Appellee.

En Banc.

ROBERTSON, Justice, for the Court:

I.

This is another case in which a former wife seeks a share of her former husband's military retirement pension long after the parties were divorced. Because the pension was not mentioned nor rights in it adjudged in the divorce proceeding, property rights in it are properly a subject of current litigation. The Chancery Court held that the law of this state applied and denied the wife's claim. Because the Court fundamentally misunderstood the controlling law and the importance of finding the serviceman's state of domicile during his term of active duty, we reverse.

II.

Mary Janice Southern, formerly Mary Janice Glenn, is an adult resident citizen of Bexar County, Texas. Southern was the Plaintiff below and is the Appellant here.

James Jerry Glenn is an adult resident citizen of Taylorsville in Smith County, Mississippi. Glenn was the Defendant below and is the Appellee here.

Glenn grew up in Taylorsville, and on July 15, 1960, he enlisted in the United States Army. Without doubt, he was a domiciliary of Smith County, Mississippi, at that time. On November 2, 1962, Glenn and Southern were married in San Antonio, Texas. The parties remained married to each other for almost twenty years.

On May 17, 1982, the District Court for the Forty-Fifth Judicial District, Bexar County, Texas, entered its final judgment declaring Glenn and Southern divorced and restoring to Southern her maiden name.

At approximately the same time, Glenn retired from the Army. On April 18, 1982, Glenn took terminal leave and returned to Mississippi, and has resided in Taylorsville ever since. On May 31, 1982, Glenn was formally retired from the United States Army. He began receiving military retirement benefits in June of 1982.

On November 10, 1982, Southern brought suit in the District Court of Bexar County, Texas, asserting a property right in Glenn's military retirement pension under the community property laws of the State of Texas and asking for a judicial partition of the benefits of that pension. The District Court dismissed the action for lack of personal jurisdiction over Glenn. Southern appealed to the Court of Civil Appeals, Fourth Supreme Judicial District of Texas. The Court of Appeals affirmed. Southern v. Glenn, 677 S.W.2d 576 (Tex.App.1984). En route the Court held that the matter of personal jurisdiction was governed by the Federal Uniformed Services Former Spouses' Protection Act, (FUSFSPA) 10 U.S.C. § 1408(c)(4). The Texas court correctly observed that the personal jurisdiction standards of the FUSFSPA are more restrictive than the familiar minimum contacts standard, see, e.g., Petters v. Petters, 560 So.2d 722, 725 (Miss.1990); Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). The Court of Appeals credited trial court findings of fact that Glenn was not at the time a resident of Texas and on that basis affirmed. What is important is that the Texas courts never reached the merits of Southern's partition suit.

On February 3, 1987, Southern filed her complaint in the Chancery Court of Smith County, Mississippi, again asserting a property right under the Texas community property laws and demanding a judgment for partition of Glenn's military retirement pay. The case was heard upon stipulated facts, and on May 7, 1988, the Chancery Court entered final judgment holding that Southern's rights, if any, in Glenn's military retirement pension were to be determined according to Mississippi law and that under our law, Southern had no property rights in Glenn's pension. The Court then dismissed Southern's complaint.

Southern now prosecutes an appeal to this Court.

III.

Texas is a community property state, and it appears that, if Texas law controls, Southern may well be entitled to relief. See, e.g., Haynes v. McIntosh, 776 S.W.2d 784, 786 (Tex.App.1989); Koepke v. Koepke, 732 S.W.2d 299, 300 (Tex.1987); Harrell v. Harrell, 692 S.W.2d 876 (Tex.1985); Southern v. Glenn, 677 S.W.2d at 580. On the other hand, Mississippi law confers upon a spouse no property right as such in a serviceman's military retirement pay. ¹ See Colvin v. Colvin, 487 So.2d 840 841 (Miss.1986); Powers v. Powers, 465 So.2d 1036, 1037 (Miss.1985). In these situations Newman v. Newman, 558 So.2d 821 (Miss.1990) holds that the matter of whether the spouse of a serviceman has a vested right in the military retirement pension is governed by the law of the state (or states, pro rata) of domicile during the term of active duty service, the term during which the pension is earned.

Indisputably, Glenn was a Mississippi domiciliary up until the time of his enlistment in the Army. Twenty-two years later he resumed residency here and has maintained Mississippi as his state of domicile since that time. The outcome determinative question is whether and for how long Glenn remained a Mississippian during his active duty tenure with the Army--the period from July 15, 1960, until May 31, 1982. ²

In a case such as this, Southern has the burden of producing evidence that Glenn changed his domicile to the State of Texas and further of persuading the court that the evidence preponderates to that effect. See Newman v. Newman, supra; Hopkins v. Wilson, 212 Miss. 404, 420, 54 So.2d 661, 663 (1951); Jones v. State ex rel. McFarland, 207 Miss. 208, 213, 42 So.2d 123, 125 (1949); Bilbo v. Bilbo, 180 Miss. 536, 550, 177 So. 772, 776 (1938); Clay v. Clay, 134 Miss. 658, 662, 99 So. 818, 818 (1924). Southern offered a stipulation of facts which show that the parties were married in Texas in 1962 and divorced in Texas in 1982. The Texas proceedings reflect that Glenn and Southern resided in Texas for most of their married life and even noted that Glenn voted in the 1976 presidential election in Texas and held a Texas driver's license.

Our problem is that the Chancery Court made no finding on the matter of Glenn's domicile. The Court appears not to have appreciated the importance of the point. A finding that Glenn at all times remained a Mississippi domiciliary is absolutely requisite to the judgment entered below. Though the evidentiary facts are stipulated and largely documentary, they are in conflict and are inconclusive, such that on this record we may not fairly infer Glenn's state of domicile during the operative period of time. ³ See Dycus v. Sillers 557 So.2d 486, 504 n. 70 (Miss.1990); Tricon Metals & Services, Inc. v. Topp, 516 So.2d 236, 238-39 (Miss.1987); Pace v. Owens, 511 So.2d 489, 492 (Miss.1987). Under these circumstances we have no choice but to credit Southern's appeal.

We reverse the judgment entered below and remand this matter to the Chancery Court for adjudication of Southern's partition claim under the principles of Newman v. Newman, supra, and specifically for findings regarding Glenn's state of domicile for the legally operative period of time. We leave to the sound discretion of the Chancery Court the matter of whether it should proceed upon the proof already before it or reopen the record and allow the parties to offer additional proof.

REVERSED AND REMANDED.

LEE, ROY NOBLE, C.J., PRATHER, SULLIVAN, PITTMAN and BLASS, JJ., concur.

DAN M. LEE and HAWKINS, P.JJ., and ANDERSON, J., dissent with separate opinion.

DAN M. LEE, Presiding Justice, dissenting:

I.

Suits filed pursuant to 10 U.S.C. § 1408 require two (2) determinations by a trial court. First, the court into which the plaintiff comes must determine that it has personal jurisdiction over the defendant, as defined in 10 U.S.C. § 1408(c)(4), at the time the suit is filed. 10 U.S.C. § 1408(c)(4). Accord Petters v. Petters, 560 So.2d 722 (Miss.1990). Second, the trial court must determine which state's laws apply based on proof of domicile during the period in which the benefits were earned. 10 U.S.C. § 1408(c)(1). Accord, Newman v. Newman, 558 So.2d 821 (Miss.1990). The burden of proving domicile during the period in which the benefits were earned rests with the party seeking to partake of the benefits. Newman v. Newman, 558 So.2d 821 (Miss.1990).

The majority bases today's decision on the Chancellor's failure to specifically determine Glenn's domicile during the operative period of time, July 15, 1960 through May 31, 1982. However, in rendering its decision the majority has ignored the procedural history of this case: the issue of Glenn's domicile during the pertinent period of time was fully litigated and decided in the Texas courts and, thus, became the law of the case. Because the majority chooses to ignore this determination, as well as our standard of review of Chancery Court decisions, I respectfully dissent.

II.

A.

Southern entered Texas state court seeking a share of her former husband's military retirement pension in accordance with Texas law and ran head long into Glenn's challenge of personal jurisdiction of the Texas state court in light of 10 U.S.C. § 1408. Southern v. Glenn, 677 S.W.2d 576, 579 (Tex.App. 4 Dist.1984). Glenn's challenge presented the Texas courts with a first impression case. Id. at 582.

The Texas trial court conducted a hearing in which the personal jurisdiction and domicile issues were fully litigated. Glenn made a special appearance at this hearing and testified that his domicile from birth until that moment had been, and remained, in Mississippi. Id. at 583. In rendering its opinion, the Texas trial court found, inter alia, that (1) Glenn was a domiciliary and resident of Mississippi when he entered the Army in 1960; (2) at the time of the 1982 divorce proceedings in Texas Glenn was a domiciliary and citizen of the State of Mississippi; and (3) "[a]t all times that Defendant served in...