Wagner v. Wagner

• Decision Date: 18 April 2001
• Citation: 564 Pa. 448,768 A.2d 1112
• Parties: Amy L. WAGNER, Appellee, v. Michael F. WAGNER, Appellant.
• Court: Pennsylvania Supreme Court

768 A.2d 1112

564 Pa. 448

Amy L. WAGNER, Appellee, v. Michael F. WAGNER, Appellant.

Supreme Court of Pennsylvania.

Argued September 12, 2000.

Decided April 18, 2001.

Mary Sue Ramsden, Pittsburgh, for Michael F. Wagner.

Mark A. Criss, Cranberry Tp., for Amy L. Wagner.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, and SAYLOR, JJ.

OPINION

CAPPY, Justice.

Section 1408(c)(4)(A)-(C) of the federal Uniformed Services Former Spouses' Protection Act, 10 U.S.C. §§ 1408-1412 (the "Act"), authorizes a state court to dispose of military retirement pay according to state law in a divorce proceeding, provided the court has jurisdiction over the military member. Under the Act, jurisdiction may be premised on the member's consent. 10 U.S.C. § 1408(c)(4)(C). The question presented in this appeal is whether the Appellant, Michael F. Wagner, consented to the trial court's jurisdiction. For all the reasons that follow, we hold that he did not. Accordingly, the order of the Superior Court, reversing the trial court's order granting Appellant's preliminary objections to jurisdiction, is reversed.

Appellant and the Appellee, Amy L. Wagner, were married in Butler County, Pennsylvania on August 14, 1982. The Wagners had one child. Throughout the marriage, appellant was on active duty as an officer in the United States Air Force. The Wagners separated in 1992. Appellee returned to and now lives in Butler County. Appellant is presently stationed in New Mexico, and resides in Alaska.

On or about December 30, 1993, Appellee filed a Complaint for Support in the Court of Common Pleas of Butler County. Later, on June 24, 1994, she filed a Complaint in Divorce. Personal service of the reinstated Complaint in Divorce was effected on Appellant in Alabama on September 28, 1995. Appellant did not file an answer to the Complaint in Divorce. Appellee served Appellant with written interrogatories relating to income and expenses. Appellant did not answer Appellee's interrogatories. On February 16, 1996, Attorney Lee A. Montgomery filed a Praecipe for Appearance on Appellant's behalf in the divorce action. Thereafter, Appellant's attorney attended a hearing held by the trial court to decide whether Appellant should be held in contempt for failing to respond to Appellee's discovery. Eventually, Appellant produced credit card statements and answered Appellee's interrogatories. Appellant attended a support modification conference in connection with the separate proceeding commenced by Appellee's Complaint for Support.

In January 1998, Appellee filed an inventory, which listed Appellant's "United States Air Force Retirement" as marital property. Appellant did not file an inventory. On February 11, 1998, Appellee filed a Petition for Special Relief and for Bifurcation, requesting a schedule for pre-trial discovery, bifurcation, and a trial of economic issues. The trial court scheduled a bifurcation hearing for May 8, 1998. Appellant filed a Motion for Stay and/or Continuance and Preliminary Objections to Pennsylvania Jurisdiction on May 4, 1998. On May 7, 1998, Appellant filed a Refusal to Accept Jurisdiction of Court to Determine the Disposable Retirement Pay of A Member of the Armed Forces.

Appellant's preliminary objections were premised on the Act, which provides that unless a court has jurisdiction over the military member by virtue of his residence, domicile or consent to the court's jurisdiction, it may not distribute the member's retirement pay. 10 U.S.C. § 1408(c)(4)(A)-(C). Appellant alleged that he did not reside and was not domiciled in Pennsylvania. He also averred that he did not consent to the trial court's jurisdiction for purposes of the Act and objected to the court's jurisdiction over his retirement pay.

The trial court sustained Appellant's preliminary objections. The court first found that § 1408(c)(4) addresses subject matter jurisdiction. Since the parties conceded that Appellant was neither a resident nor a domiciliary of the Commonwealth, the court turned to the question of Appellant's consent. Based on its conclusion that the statute speaks to subject matter jurisdiction, the court reviewed the record to determine whether Appellant had consented to its jurisdiction over the retirement pay itself. The court found that no action Appellant had taken in the case amounted to such consent. Accordingly, the court held that it did not have jurisdiction under the Act to decide the equitable distribution of Appellant's retirement pay, and granted Appellant's preliminary objections by order dated May 14, 1998.

At Appellee's request, the trial court issued an amended interlocutory order on May 29, 1998. Appellee then filed a petition for permission to appeal under 42 Pa.C.S. § 702 in Superior Court, which was granted.¹

The Superior Court reversed the trial court's order. Wagner v. Wagner, 731 A.2d 632 (Pa.Super.1999). Like the trial court, the first question the Superior Court determined was whether § 1408(c)(4)(C)'s consent provision implicates subject matter or personal jurisdiction. In the Superior Court's view, since the residency and domicile alternatives in § 1408(c)(4)(A) and § 1408(c)(4)(B) respectively are traditional tests of personal jurisdiction, and because the legislative history of the Act shows that Congress sought to curtail a spouse's forum shopping, it was logical to conclude that the consent alternative in § 1408(c)(4)(C) is a matter of personal jurisdiction. Id. at 636-37.

The court then rejected Appellee's argument that Appellant's preliminary objections to jurisdiction were untimely, concluding that the question of consent for purposes of the Act is not whether the military member waived his right to object to personal jurisdiction under state procedural rules, but whether he engaged in some form of affirmative conduct that showed his express or implied consent to the trial court's general in personam jurisdiction. Id. at 637. Noting that Appellant accepted service of the Complaint in Divorce, secured counsel who entered a written appearance on his behalf, was represented by counsel at a discovery dispute hearing, complied with a discovery order, answered interrogatories, and attended an ancillary support modification conference in Butler County, the court held that Appellant had consented to the court's personal jurisdiction through his participation in the divorce proceedings. Id. at 637-38. The court suggested that if Appellant had avoided process, immediately filed preliminary objections to the trial court's jurisdiction or refused to participate in the action altogether, he would have succeeded in withholding his consent. Id. at 638.

Finally, because its holding meant that all issues between the parties would be determined at once and in one forum, the court believed that the result it reached comported with public policy and principles of judicial economy. Id.

We begin our analysis with a brief background of the federal statute that we are called upon to construe in this case.² Congress first enacted comprehensive nondisability military retirement legislation during the Civil War, with the aim of securing a youthful military force, providing for retired members, and encouraging service. In 1981, in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the United States Supreme Court concluded that the application of California's community property to military retirement benefits conflicted with this legislation, and threatened the attainment of these goals. Id. at 232-35, 101 S.Ct. 2728. Based on its examination of federal law dealing with military benefits, the Court found that Congress intended retirement pay to be a military member's personal entitlement, not subject to division between him and his spouse. Id. at 224, 232, 101 S.Ct. 2728. The Court further found that application of state community property law to the pension would make it less valuable, and in turn, render military service less attractive. Id. at 234, 101 S.Ct. 2728. Consequently, the Court held that federal law prohibits a state court from dividing a serviceperson's retirement pay pursuant to state community property statutes upon the dissolution of a marriage. Id. at 232-35, 101 S.Ct. 2728. In closing, however, the Court observed that the plight of ex-spouses of retired military members is often a serious one and invited Congress to consider whether they should be afforded more protection. Id. at 235-36, 101 S.Ct. 2728.

Congress responded to McCarty with the Act. The statute gives state courts the express authority to distribute military retirement pay in a domestic relations action, 10 U.S.C. § 1408(c)(1), and includes a mechanism by which a court order fixing the amount to which the spouse or former spouse of a military member is entitled can be served upon and satisfied directly by the federal government. 10 U.S.C. §§ 1408(a)(2), (d). Under § 1408(c)(4), however, the court's authority to distribute military retirement pay depends on its having "jurisdiction over the member", which may be acquired in three alternative ways. Section 1408(c)(1) and § 1408(c)(4) state:

§ 1408. Payment of retired or retainer pay in compliance with court orders

* * *

(c) Authority for court to treat retired pay as property of the member and spouse.—(1) Subject to the limitations of this section, a court may treat the disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court....

(4) A court may not treat the disposable retired pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member 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

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