Fox v. Fox.
322 P.3d 400
| Kan. Ct. App. | 2014Background
- Edward and Veronia Fox married in Germany in 1979; Edward was a U.S. serviceman and the parties were domiciled in Germany throughout the marriage.
- Edward obtained a German divorce decree in 2009; the German court reserved the pension issue and declined to divide his U.S. military and federal civilian (FERS) pensions.
- Edward later transferred to Kansas (Ft. Riley). In 2012 Veronia petitioned Riley County District Court to divide the pensions as property not divided in the foreign divorce.
- Veronia’s petition did not cite a Kansas statutory basis beyond alleging the court had jurisdiction due to Edward’s Kansas residency; Edward moved to dismiss for lack of subject matter jurisdiction.
- The district court dismissed, holding federal pensions were Edward’s separate property and Kansas could not treat them as marital property when the marriage and divorce occurred abroad.
- On appeal the Kansas Court of Appeals considered: whether 10 U.S.C. § 1408(c)(4) allows consent to confer subject matter jurisdiction; whether equitable doctrines can confer subject matter jurisdiction; and whether K.S.A. 2013 Supp. 23-2801 converted the pensions into marital property for Kansas courts.
Issues
| Issue | Plaintiff's Argument (Fox) | Defendant's Argument (Fox) | Held |
|---|---|---|---|
| Whether 10 U.S.C. § 1408(c)(4) permits a service member to consent to subject matter jurisdiction over military retired pay | Edward’s act of reserving pension division in German court amounted to consent to jurisdiction under § 1408(c)(4), allowing Kansas to divide pensions | § 1408(c)(4) addresses personal jurisdiction only; it does not create or waive subject matter jurisdiction | § 1408(c)(4) refers only to personal jurisdiction, not subject matter jurisdiction; consent cannot confer subject matter jurisdiction |
| Whether equitable doctrines (e.g., estoppel) can supply subject matter jurisdiction | Even if consent fails, equitable estoppel should allow Kansas courts to adjudicate fairness and divide pensions | Equitable doctrines cannot create subject matter jurisdiction; courts must have preexisting subject matter jurisdiction | Equitable arguments cannot confer subject matter jurisdiction; dismissal stands |
| Whether K.S.A. 2013 Supp. 23-2801 transforms foreign divorce-era military retirement pay into Kansas marital property | The Kansas statute makes military retirement pay marital property at the time a divorce action is commenced, so pensions became marital property when Edward filed for divorce (even if in Germany) | The statute does not reach a foreign divorce between nonresidents with no Kansas contacts; extending it would be absurd and was not the legislature’s intent | K.S.A. 2013 Supp. 23-2801 does not grant Kansas subject matter jurisdiction over a foreign divorce and property of nonresidents; statute not applicable here |
Key Cases Cited
- McCarty v. McCarty, 453 U.S. 210 (U.S. 1981) (precluded state courts from dividing military pensions before USFSPA)
- Steel v. U.S., 813 F.2d 1545 (9th Cir. 1987) (USFSPA empowers courts that already have jurisdiction; it does not create subject matter jurisdiction)
- Wagner v. Wagner, 768 A.2d 1112 (Pa. 2001) (interpreting § 1408(c)(4) as relating to personal jurisdiction)
- Bartlett Grain Co. v. Kansas Corp. Comm'n, 292 Kan. 723 (Kan. 2011) (parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel)
- Place v. Place, 207 Kan. 734 (Kan. 1971) (equity courts must first have jurisdiction of the subject matter)
- In re Marriage of Pierce, 26 Kan. App. 2d 236 (Kan. Ct. App. 1999) (noting difficulty of state court reach over military retirement pay)
- Frazier v. Goudschaal, 296 Kan. 730 (Kan. 2013) (equitable need alone cannot supply subject matter jurisdiction)