Williams v. Williams

• Decision Date: 19 February 2016
• Docket Number: No. 113,103.,113,103.
• Parties: In the Matter of the Marriage of Joann WILLIAMS, Appellee, v. Alfonza WILLIAMS, Appellant.
• Court: Kansas Court of Appeals

52 Kan.App.2d 440

367 P.3d 1267

In the Matter of the Marriage of Joann WILLIAMS, Appellee,

v.Alfonza WILLIAMS, Appellant.

No. 113,103.

Court of Appeals of Kansas.

Feb. 19, 2016.

Review Granted Feb. 15, 2017.

Michael E. Riling, of Riling, Burkhead, & Nitcher, Chtd., of Lawrence, for appellant.

Jeffrey Leiker, of Leiker Law Office, P.A., of Kansas City, for appellee.

Before McANANY, P.J., POWELL, J., and DAVID J. KING, District Judge, assigned.

KING, J.

This case involves a challenge to the district court's jurisdiction to divide military retirement benefits pursuant to the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. § 1408 (2012).

In 1994 the Shawnee District Court granted Joann and Alfonza Williams a divorce. Nineteen years later Joann sought to enforce a provision of the divorce decree that awarded her 25 percent of Alfonza's Army retirement benefits. Alfonza argued that the district court lacked jurisdiction to divide his military retirement benefits because he did not "consent" to the district court's jurisdiction over his Army retirement benefits pursuant to 10 U.S.C. § 1408(c)(4)(C). The district court held it had jurisdiction in 1994 to divide Alfonza's military retirement benefits and awarded Joann's request for an award of attorney fees pursuant to K.S.A. 2015 Supp. 23–2715. Alfonza timely appeals both of these decisions. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Joann filed a petition for divorce from Alfonza with the Shawnee District Court on October 8, 1993. Her prayer for relief requested an absolute divorce, child custody and support, spousal maintenance, and an equitable division of personal property and debts. Her petition did not specifically request a division of Alfonza's Army retirement or otherwise refer to it.

Alfonza filed a pro se answer on November 29, 1993. In his answer, Alfonza admitted to all the allegations of the petition except the allegation that the parties owned personal property. He requested the court to order joint custody of the parties' two children, that Joann pay her own outstanding financial obligations, and that Joann's request for maintenance be denied. Alfonza's answer did not refer to his military retirement.

The parties were unable to resolve issues of the marriage, and the matter proceeded to trial on January 31, 1994. At trial, Joann was represented by counsel. Alfonza appeared pro se but had a man identified as " Moseley" with him to assist him. Moseley was a senior NCO from Fort Hood, had 20 years of military experience, and was present in case any question arose that dealt with military concerns. The district court determined that Moseley was a potential witness and requested he sit in the courtroom gallery and not at counsel table. In the end, Moseley did not further participate in the trial.

As trial began, Joann's counsel identified child support, maintenance, and military retirement as the major issues in the case. He requested the court award Joann a portion of Alfonza's military retirement based on the length of the marriage, the time during which the retirement benefits were earned, and the unequal earning power of Joann. Joann's trial evidence included testimony and evidence regarding her claim for a division of Alfonza's military retirement as marital property. Joann claimed she should receive half of Alfonza's military retirement based on a marriage of 8.5 years out of 15 years of military service.

Alfonza did not state any objection to the inclusion of his military retirement as an issue during the trial. In fact, during his cross-examination of Joann, he asked if they had agreed 24 hours before trial that she would receive 20 percent of his retirement benefit, which she confirmed.

At the conclusion of the trial, the trial judge stated that he needed to look at the federal law governing military retirement benefits before declaring it to be marital property. He also inquired how any division of retirement benefits would be paid.

In the divorce decree filed about 3 weeks after the trial, the district judge found "[t]he Court does have jurisdiction of the parties and subject matter of this action." He made the following findings regarding Alfonza's military retirement benefits:

"[T]he Court finds that Husband's army retirement benefits are marital property. Because of the duration of the marriage, the relative earning capacity of the parties, and the overall relative financial condition of the parties, Wife is awarded 25% of Husband's army retirement benefits, as her sole and separate property, free and clear of any right, title or interest of Husband. Husband shall act as trustee of Wife's share of such benefits, and upon Husband's receipt of such benefits, shall immediately pay over Wife's share of such benefits to Wife. The provisions of this section and the percentage of Wife's share shall apply whether Husband takes regular, medical, or early retirement from the military. Husband shall cooperate with Wife in the execution of such documents as may be necessary in order to carry out the provisions of this Decree and in obtaining direct payments from the Army to Wife of her portion of the benefits to the extent allowable by the Army."

Alfonza did not seek modification, nor did he pursue an appeal of the decree of divorce.

Nineteen years later, in 2013, Joann filed a motion for "garnishment" of Alfonza's retirement benefits. She alleged that Alfonza was not willing to give her any of the retirement benefits that the district court had awarded her. Alfonza responded by filing a motion to set aside that portion of the divorce decree that dealt with his military retirement benefits. He claimed for the first time that the district court lacked subject matter jurisdiction to divide his military retirement. Subsequently, he supplemented his response to ask the court, in the event it did not sustain his objection to jurisdiction, to clarify the division of his military retirement benefit since he retired 18 years later than the decree contemplated, and he had received rank and pay increases during this time.

The district court held a hearing to consider the parties' post-decree motions. Joann and her trial attorney from the divorce proceedings testified. Joann testified she discussed her claim for division of Alfonza's military retirement with him before the divorce hearing. She testified that Alfonza told her the night before trial that he would be willing to divide his retirement but he did not believe it was fair to give her 50 percent of it. Joann's divorce trial attorney testified that military retirement was an issue of the divorce and was discussed with Alfonza prior to trial, although he could not remember details of the discussion or exactly when it occurred.

Alfonza did not testify at the hearing. Rather, he relied on argument that the district court did not have jurisdiction to divide his military retirement benefits in 1994. He argued Kansas was not his state of residence or domicile, and he did not consent to the "jurisdiction of the court." Alternatively, Alfonza argued that if the court found he had consented to the jurisdiction of the Kansas district court, the court should "clarify" the order given the division of his retirement benefits was based on spending 15 years in the military as a staff sergeant, rather than 31 years as a sergeant major.

The district court took the matter under advisement. When it issued its written decision in the matter it held: (1) the district court had jurisdiction in 1994 to divide Alfonza's military retirement, (2) to make the result of the division fair, the division should be recalculated to reflect Alfonza's anticipated retirement date of 1995 and not his actual retirement date of 2013, and (3) that Joann was entitled to recover attorney fees in the amount of $6,092.

JURISDICTION TO DIVIDE MILITARY RETIREMENT BENEFITS

Alfonza argues the district court in 1994 did not have jurisdiction to divide his military retirement. He has argued at various points of the proceedings that the district court lacked subject matter jurisdiction and that the court lacked personal jurisdiction because he did not expressly consent to the court's jurisdiction over his military retirement benefits. He also argues that "if implicit consent is sufficient, the implicit consent must be specific to the issue of military retirement, when the underlying case involves multiple issues."

Alfonza's challenge to the district court's jurisdiction relies on interpretation of provisions of the USFSPA, and, thus, whether the district court had jurisdiction to divide Alfonza's military retirement presents an issue of statutory construction over which we have unlimited review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015). Also, whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. Frazier v. Goudschaal, 296 Kan. 730, 743, 295 P.3d 542 (2013).

Before turning to our analysis of § 1408(c) of the USFSPA, a brief review of its genesis is in order. In 1981, the United States Supreme Court held that state courts were preempted from dividing military retirement benefits as marital property in divorce proceedings. McCarty v. McCarty, 453 U.S. 210, 232–36, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). Congress responded to McCarty by passing the USFSPA, 10 U.S.C. § 1408. Section 1408(c) is the portion of the Act that applies to this case. It provides in relevant part:

"(1) ... [A] court may treat 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

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