367 P.3d 1267
Kan. Ct. App.2016Background
- Joann and Alfonza Williams divorced in Kansas in 1994; the decree awarded Joann 25% of Alfonza’s Army retirement as her separate property. Alfonza did not appeal the decree at that time.
- Joann sought enforcement in 2013 after Alfonza refused to pay; Alfonza then (for the first time) challenged the 1994 court’s jurisdiction under the USFSPA, 10 U.S.C. § 1408(c)(4)(C), asserting he never consented to state-court division of his military retirement.
- At the 1994 trial Joann’s counsel expressly raised military retirement as an issue; Alfonza (pro se) participated, asked questions about an agreed percentage, had an NCO present but raised no jurisdictional objection during trial, and did not appeal the jurisdictional ruling.
- The district court (post-2013 hearing) held the 1994 court had jurisdiction under § 1408(c)(4)(C) because Alfonza failed to object when the retirement division was litigated, recalculated Joann’s award to reflect an anticipated 1995 retirement date, and awarded Joann attorney fees under K.S.A. 2015 Supp. 23-2715.
- On appeal, the key legal question was whether § 1408(c)(4)(C) requires express (specific) consent to state-court jurisdiction over military retirement, or whether participation without timely objection constitutes consent.
Issues
| Issue | Joann's Argument | Alfonza's Argument | Held |
|---|---|---|---|
| Whether § 1408(c)(4)(C) was satisfied so the Kansas court could divide military retirement | Participation at trial and failure to object when military retirement was litigated = consent to jurisdiction | § 1408(c)(4)(C) requires express/specific consent to jurisdiction over military retirement; mere participation or earlier silence is insufficient | Court held Alfonza consented by failing to object when the retirement issue was presented at trial in 1994; § 1408(c)(4)(C) concerns personal jurisdiction and consent can be manifested by participation at the time the retirement issue is litigated. |
| Whether consent must be specific to the retirement issue when multiple issues exist in the same divorce | Consent may be implied when member participates in proceedings addressing retirement | Consent must be specific to the retirement issue (express consent) and earlier non-objection to other issues is insufficient | Court rejected Alfonza’s specificity argument because he did not object when the retirement division was squarely presented and decided in 1994. |
| Timeliness of jurisdictional objection raised 19 years after the decree | Enforcement motion was proper; jurisdiction already litigated and decided | Objection to jurisdiction raised in 2013 is timely to challenge USFSPA jurisdiction over retirement | Court held objection was untimely in practical effect because Alfonza failed to object at trial or appeal the jurisdiction ruling; his long delay and later request for relief inconsistent with contesting jurisdiction. |
| Authority to award attorney fees for enforcement action | Joann sought enforcement of divorce decree; fees permitted under K.S.A. 23-2715 | Alfonza argued the motion was a garnishment (for which fees might differ) and fees were improper | Court held the post-decree proceeding was enforcement of the decree (not a garnishment) and attorney fees were properly awarded under K.S.A. 2015 Supp. 23-2715. |
Key Cases Cited
- McCarty v. McCarty, 453 U.S. 210 (1981) (held state courts were preempted from dividing military retirement before Congress enacted the USFSPA)
- Grant v. Grant, 9 Kan. App. 2d 671 (Kan. Ct. App. 1984) (Kansas initially held military retirement not dividable until statute amended)
- Fox v. Fox, 50 Kan. App. 2d 62 (Kan. Ct. App. 2014) (interpreting § 1408(c)(4)(C) as addressing personal jurisdiction)
- Wagner v. Wagner, 564 Pa. 448 (Pa. 2001) (held consent under § 1408(c)(4)(C) must be specific to pension distribution; participation unrelated to pension did not suffice)
- Flora v. Flora, 603 A.2d 723 (R.I. 1992) (rejected implied consent; held consent requirement not met where member did not expressly consent to pension division)
- White v. White, 543 So. 2d 126 (La. Ct. App. 1989) (held general appearance and failure to object can constitute consent under § 1408(c)(4)(C))