284 P.3d 23
Ariz. Ct. App.2012Background
- Husband and Wife married in 1966; dissolution petition filed in 1981; default decree entered; retirement pay not addressed.
- Husband retired in 1991 and began receiving military retirement pay in that year.
- In 2008 Wife sought one-half of the community interest in the retirement pay and reimbursement for amounts she believed she was owed.
- Special master appointed; Husband objected to Arizona’s personal jurisdiction; master recommended award to Wife; husband moved to dismiss for lack of jurisdiction.
- Family court denied jurisdiction motion, adopted master’s recommendations, and apportioned retirement pay; later actions vacated and remanded; on remand, orders reinstated.
- Appeal followed; court ultimately affirmed the apportionment and jurisdiction rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Arizona have personal jurisdiction over Husband under the FSPA? | Wife contends FSPA permits Arizona to adjudicate rights to military pay. | Husband argues no jurisdiction under FSPA due to nonresidency and lack of consent. | Yes; Arizona may exercise jurisdiction via implied consent by appearance. |
| Did Husband consent to Arizona jurisdiction by general appearance? | Wife asserts Husband’s appearance and requests for relief implied consent to jurisdiction. | Husband contends consent was not expressly given and should not be inferred from delay in contesting jurisdiction. | Yes; Husband consented by general appearance and seeking affirmative relief, precluding timely contest. |
| Was the apportionment of retirement pay proper as post-dissolution property division? | Wife seeks half of community interest; argues proper under state law for division of retirement pay. | Husband claims post-dissolution increases due to rank are his sole and separate property. | Court upheld apportionment; argument about post-dissolution rank increases was waived. |
| Is Wife entitled to appellate attorney fees and costs? | Wife seeks fees due to income disparity and positions taken by Husband. | Husband’s conduct did not cause delay or unreasonableness to justify fees. | Wife awarded a reasonable amount of fees and costs on appeal. |
Key Cases Cited
- Northern Propane Gas Co. v. Kipps, 127 Ariz. 522 (1980) (denotes non-final nature of denial of personal jurisdiction)
- Engle Bros., Inc. v. Superior Court, 23 Ariz. App. 406 (1975) (non-final appealability of a denial ruling)
- Pepsi-Cola Metro. Bottling Co. v. Romley, 118 Ariz. 565 (App. 1978) (final, appealable order in related context)
- Tarr v. Superior Court, 142 Ariz. 349 (1984) (general appearance constitutes consent to jurisdiction)
- Kline v. Kline, 221 Ariz. 564 (App. 2009) (appearance equates to general appearance under Arizona rules)
- In re U.S. Currency in Amount of $26,980.00, 199 Ariz. 291 (App. 2000) (authorities on appellate review and finality)