*1 D004633, Dist., D004634. Fourth Div. One. Dec. [Nos. 1987.] In re the of NANCY MARIE LARRY PHILLIP Marriage HATTIS. HATTIS,
NANCY MARIE Respondent, v. HATTIS,
LARRY PHILLIP Appellant.
Counsel
Gerald F. McGhee for Appellant. R. Striker for Respondent.
Steven
Opinion *4 the Acting raise WIENER, two cases consolidated on appeal1 P. J.—These in ac an of California over defendant propriety a nonresident to recognize, tion to in a action partition military pension and separate child modify awarding establish on and arrearages judgment sister state 10 United Since under support. personal jurisdiction analysis required Code section the differs 1408(c)(4) pension States for the to the action the constitutional “minimum applicable contacts” approach order, the two on child reach different results under support we below, issue a writ For reasons set forth we will tests. mandatе2 to the trial court from prevent exercising However, and case action. the writ is denied as to the child pension the court to issues. properly proceed decide those Background
Factual and Procedural mar- were (Nancy) Marie Hattis Larry (Larry) Nancy Hattis and Phillip States 28, United in an of the Diego Larry, employee ried San on June 1969. child their first where Navy, shortly was transferred to thereafter Michigan military way of by San Larry Nancy Diego bom. and returned to Larry was in in A child was bom California before assignment 1971. second court, motion, argument and decision for oral 1 The on its own consolidated the two cases 4, in an order filed June 1987. quash service Larry denying his motions to purports appeal Hattis to from two orders Civil Proce jurisdiction. nonappealable under Code of summons for lack of The orders are 49-56.1.) Markey, Family [7][c], pp. Since (3 (1978) 49.11 dure section 904.1. Cal. Law propriety of jurisdictional fully Nancy questioning the issue briefed and Hattis is not has been (See Hoertkorn petition Estate appeal, appeal this we treat the as a for writ of mandate. 461, (1974) 37 806]; v. Sullivan (1979) Cal.App.3d Cal.Rptr. U.S. Financial 463 [151 5, Cal.App.2d 18]; Cal.Rptr. 11-12 Varra v. returned to San couple this time to Illinois. The again transferred Nancy re- January separated of 1978. In Diego parties ceived “public assistance.” 26, 1979, in San marriage Larry
On November filed dissolution Diego in the San disso- Court.3 No further action was taken Diego Superior He Georgia. lution transferred to Larry action. September him to to reconcile Nancy Georgia attempt induced to move with home in children at his marriage. Larry Nancy parents’ left and the two Nancy When traveled on to to find a residence. Michigan Georgia went marriage her that the Larry to check on his informed Georgia progress, in Georgia. was over and he to file for divorce intended January on Georgia counsel and filed for divorce employed legal counsel, for one and Nancy, stayed Georgia 1982. unrepresented order and custody property one-half months in the child sign ordеr settlement and no mention agreement. No was awarded spousal support the military pension was made.
Nancy joined the children February returned to San 1982 and Diego Nancy her June. and resided with only employment could find part-time difficulties, her Due to she returned parents. housing financial and *5 Larry Larry children to in of 1982. returned the latter of the summer part nine-year-old 15-year-old He sent Jerry Nancy to in November of 1982. Elizabeth back to the from During period California in of 1985. September $200 in child His only support.4 November 1982 to Larry October 1985 paid Nancy forced to obtain failure to the provide required support payments addition, she for applied financial assistance from California sources.5 and received of her son. Medi-Cal on behalf payments 30, 1985, her interest
On to Nancy complaint partition December filed 1986, 10, she filed a Larry’s military January complaint On pension. the modify provisions establish the sister state and to judgment (Georgia) in each service of summons Larry’s child motions to support. quash judicial file No. D145881 under Evidence Diego Superior 3 Wetake notice of Court San 452, Larry differences under (d). petition, Code section In the cited irreconcilable subdivision 4506, perjury he had been (1), penalty of Civil Code section subdivision and stated under synony petition, in the “resident” a resident of the state for at least six months. As used 291, 656, Cal.Rptr. domiciliary. (Whealton (1967) 67 mous with v. Whealton Cal.2d [63 979].) 432 P.2d $100 per month Georgia support per child provides decree for child the amount of commenced, $200 monthly Nancy receiving $200. began present After the action was payments. Nancy (See generally 5 Nancy’sparents McGloth forced to and the children. were 106, 129].) (1981) Cal.Rptr. v. Court en [175 action facts each case to were denied. The trial court found sufficient jurisdiction. confer
Discussion I exercised The issue in both cases is whether the trial court properly below. We personal proceedings over nonresident first address the military pension (D004633). action to
Nancy 10 United argues trial court assert under alternative, States Code section California’s or in the under 1408(c)(4) Statute, 410.10. Long-arm Code of Civil Procedure section Her contention is erroneous.
Congress enacted the Uniformed Services Former Pro Spouses Federal 1408, tection Act (FUSFSPA), United States Code section response the United States McCarty McCarty Supreme ruling 589, U.S. 210 McCarty L.Ed.2d held that under the S.Ct. 2728]. VI, Clause of Supremacy the United Constitution cl. a state (art. 2), States court community impliedly laws preempted utilizing property FUSFSPA, a military By divide pension. Congress its enactment of provid 131, ed otherwise. (See generally Casas v. 42 Cal.3d 139- Thompson (1986) 144-145 1408(c)(4), 720 P.2d Section subsection, jurisdictional included to concerns apparently response about in a “forum-shopping” spouses might pension who seek to divide laws, state with more favorable but little contact with the pensioner. 97-502, Sess., (See H.Conf. Rep. No. 97-749 and Sen. No. 2d Rep. reprinted News, 1571, 1603-1604, in 1982 U.S. Admin. Code & *6 Cong. pp. No. 1635, 1639-1640.) Congress jurisdictional possibilities narrowed the to the military spouse’s: (a) military residence other domi assignment; (b) than and, cile; (c) consent. The “minimum is option conspicuously contacts” we suspect, purposefully absent. law,
The “minimum
contacts” test arises
in this case Code
under
Civil Procedure
410.10.
interferes
or is
section
When a state law
Const.,
VI,
law,
2;
contrary to
cl.
federal
the state
must
art.
yield. (U.S.
law
(3)
Free v.
1089].)
Bland
Only three bases exist for possible personal First, not Larry did it is clear that 1408(c)(4). United States Code section Larry only 1408(c)(4)(B), consent to case. section this Under That not of his own volition. military resided here pursuant assignment, statutory jurisdiction. only leaves “domicile” basis for possible as the domiciled Larry that is not now Nancy concedes at the time her domiciliary California and was not a of the state however, relies, by the trial finding on the express action was filed.6She years of in California for eight court that she and were domicilеd be sufficient their domicile twelve-year marriage argues past if that domicile satisfy statutory jurisdictional past requirements sufficiently subject litigation. to the connected Tarvin, first blush to at appears
Tarvin Cal.App.3d Prac- & Cal. categorically reject Nancy’s (See Hogoboom King, argument. 8:55.13a, a similar 8-45.) Considering tice Guide: Family (1987) p. Law can the FUSFSPA the Tarvin court as follows: “Nor argument, explained at the defendant- residency by looking of domicile or be met requirement mere fact of husband’s As our cautioned: ‘the past residency. high court . jurisdic- domicile in the state to its past subject would not defendant] [the to the indefinitely, litigation tion for a no past having relationship domicile of jurisdictiоn.’ hand would not afford a reasonable basis for an assertion P.2d (Owens v. (1959) Cal.2d Here, resi- husband’s 388].) [ft| only past A.L.R.2d connection between is remote and indirect: dency California and the action pending partition action, military pen- in the failed to list his California dissolution husband Moreover, wife, too, the asset. community sion as a asset. But omitted residen- brief California during husband’s did not mature his pension rights cy. Husband’s him to California’s past subject domicile cannot now.” (187 61.) however, two sufficiently distinguish
On closer Tarvin fails to inspection, the issue arguably sets of which leave concepts, creating ambiguities an dissenting opinion that quarrel suggestion concurring We have no with the contrary proof. For рresumed established domicile be to have continued the absence will always have services must purposes, FUSFSPA as well as other member-of the armed Often, service domicile in is the state from which which he or she can be sued. domicile ac military {ante, 3), member can although, member as in this case fn. a service entered the (See Marriage quire duty. re Thornton new domiciles while on active *7 500, Cal.App.3d Cal.Rptr. 388].) 508-510 [185 Here, Larry’s support present a and contin- of a would 1979 California domicile admission changed. only Larry uing if not demonstrate that his domicile had California domicile could cone, issue, however, (Quoted Nancy’s and We concession of the as dеterminative. view Larry’s opn., post 1177.) as where invalid; current domicile dis. at The fact that she is confused to p. is is does not mean concession it is not in California her
1169 with, domicile residency treats and To Tarvin begin unsettled. distinct they concepts FUSFSPA mákes clear are when interchangeably Thornton, 135 re (See Marriage of statute. In that purposes the of Cal.2d 500, 507-508; (1955) see Smith v. Smith generally 235, Owens v. Superior More cites P.2d Tarvin importantly, domicile past between and its discussion of the need for a relationship Owens, however, case. contacts hand.” is a minimum “litigation and the at quite appropri a the in Owens Utilizing analysis, minimum contacts court more could ately rejected suggestion the that domicile without past FUSFSPA, has no jurisdiction. the assertion But Owens application and byYet citing the contacts expressly rejects approach. which minimum Owens, domi discussing suggests by past Tarvin negative implication FUSFS satisfy relationship might cile with sufficient to the action partition PA’s jurisdictional requirements. in- Congressional
The is one of question assessing presented principally far from Although history regard tent. FUSFSPA’s in this is legislative bountiful, jurisdictional 1408(c)(4) the appear section prerequisites have been bill. part original of a series of House amendments to the Senate 97-749, Sess., Cong. H.Conf. U.S. (See No. 2d in 1982 Code Rep. reprinted News, only regarding & Admin. No. at p. 1571.) expressed concerns the Senate the Marine jurisdiction came hearings representatives Air and staff for Corps Significantly, manpower Force. chiefs of deputy from each of Senate and recom- those service branches testified before the “in mended that which FUSFSPA be limited to the Sess., 97-502, . . member is . .” 2d (Sen. reprinted domiciled No. Rep. News, Lt. (statement U.S. Code & Admin. No. Cong. p. at Bronars, J. of Lt. Gen. U.S.M.C.) Gen. Edward and (statement Iosue, P. U.S.A.F.) (italics added).) Andrew indirectly
We are consid- aware of two decisions from other which states FUSFSPA’s question satisfy jurisdic- er of whether domicile can past tional FUSFSPA’s reference prerequisites. Both conclude that impliedly “domicile” was Sparks intended to be domicile.” Congress “prеsent and were Caldwell P.2d husband wife 244], N.M. Wife Mexico; Washington. divorced thereafter moved to New husband her interest then action in to obtain brought New Mexico partition was no military husband’s there pension. Concluding omitted FUSFSPA, not presently court under explained: “[P]etitioner filed, domiciliary not a resident time [the action] (Id. Mexico, (La. 1985) . . .” In Gowins v. Gowins p. 245.) New there living So.2d wife were in Louisiana husband and married were 16- Air divorce after a joined the At the time of their when husband Force. domiciliary year stationed being husband admitted Louisiana marriage, *8 later, years South Dakota. Four wife filed a action in pension partition which she alleged that husband domiciliary was a former of Louisiana now residing Alabama. on Rejecting jurisdiction husband’s based challenge FUSFSPA, the court relied aon a in domicile: presumption against change “In her for petition partition, Mrs. Gowins states that Col. is a Gowins domiciliary of . . past Louisiana. . This does not preclude former Louisiana, conclusion that he is a present domiciliary giving jurisdiction under 10 U.S.C.A. 1408(c)(4)(B). There is no evidence to rebut the pre- domicile, that sumption Col. Gowins maintains the Louisiana he had which joined when he Air (Id. Force.” italics added.) second Our fundamental Nancy’s effectively concern with is that argument it a engrafts analysis “minimum contacts” necessarily onto statute which rejected jurisdictional Nancy’s theory, Under approach. determining whether past transactionally domicile was related closely approxi- would mate the analysis minimum contacts which is to determine whether applied “the cause particular of action out of or connected with [arises] [is] defendant’s activity.” forum-related Co. v. (Buckeye Boiler Superior (1969) Cal.2d there agree P.2d We are strong arguments to commend the flexible minimum contacts approach in preference to the wooden by imposed rights limitations FUSFSPA. by accorded FUSFSPA to the hol- spouses military may ring personnel if low it is impossible or prohibitively Rarely to enforce them. is expensive non-military more spouse caрable away from home. To the litigating extent the “forum shopping” concerns FUSFSPA expressed during the are hearings legitimate, they could have been dealt simply providing in the statute that solely residence by virtue of is not to military assignment be considered assessing minimum contacts for jurisdictional purposes. Moreover, it makes no sense to jurisdictional have different criteria applica- Here, instance, ble to related issues in the litigation. same for a minimum contacts approach will California jurisdiction over for the purposes liability his for child 1173- determining support (see pp. post, 1175) but that same adjudicate military court cannot the division of his even if pension, analysis. California law would under a choice apply of law But our function is not to judge the wisdom the United States context, Congress. clearly rejects Viewed FUSFSPA the flexible mini- mum contacts favor of three defined approach jurisdictional categories. Since none of the three possible jurisdiction bases can be satisfied this case, the trial court its authority exceeded finding personal reason, over For that mandate trial Larry. prevent writ of proper court from Court, asserting (Varra action. Cal.App.2d 12.)
1171
II
the
action,
established
the trial court properly
to the second
Turning
must
state
of another
California judgment. Judgments
decree as a
Geоrgia
States
IV,
United
clause 1 of the
full faith and credit under article
be given
jurisdiction.
by
competent
if final and rendered
a court of
Constitution
701,
1264],
A.L.R.
132
The next is whether the trial court can exercise question for modification jurisdiction Larry over to issue an order to show cause costs. California arrearages, attorney’s child and fees and support, setting with the any сourts exercise basis not inconsistent “on Proc., this or of the Civ. (Code Constitution of United States.” this The has sufficient 410.10.) inquiry relevant case is whether “minimum contacts” with the state to exercise of make the reasonable. “minimum
The
in Intenat. Shoe
contacts” test Wasfirst announced
154,
95,
161
Washington
Co. v.
Subsequent uphold California cases have the Kulko rationale to applied Court, jurisdiction when reasonable. In v. supra, McGlothen Superior 106, a to Califor- Cal.App.3d subject husband out of state was held residing Lynn nia an action for child Husband spousal support. and Brenda, Califor- was a baseball met a professional player lifelong who wife resident, nia on a road the winter during lived California trip. couple In the husband they 1972-73. of 1973 moved to Boston until spring traded to St. Louis. In wife (Id. 110.) Lynn previous at divorced his p. and married Brenda. The a child and moved back to San Fran- couple had cisco Lynn when was traded in 1976. 1978, Lynn to move to a was traded He told Brenda again Chicago.
trailer in Lynn Louisiana until he a near After Chicago. could find home Louisiana, assaulted Brenda in and sav joint checking he closed out their or and ings (Id. accounts. He refused to his wife children p. 110.) support Brenda in with her parents was forced to return to California. She mоved and on began (Id. 111.) Relying assistance benefits.” receiving “public p. In re Marriage Lontos Cal.App.3d 271] authority, McGlothen court “In and the factu opined: light foregoing court, al it reasonably context as found in case at bench by superior as Lynn’s concluded that acts and omissions outside of California were such Kulko. caused an in this state far in the nature of Lontos than of more effect children, Louisiana, His were there left wife and as a result of his conduct California, him home in destitute to return to her obliged parents’ or parental they supported by taxpayers where are now this were, to, are, litigation funds for bounty. they And without travel in, Moreover, be reasonаbly Lynn may their Louisiana. right distant their in this presence said derived a personal to have benefit state, he been years supporting several had not throughout past U.S., because, 97 p. his children Kulko (436 Brenda and paraphrasing Brenda, state, L.Ed.2d, the insur- in this 145]) he had imposed upon [spousal ‘financial burden strain of litigating mountable and personal and] ” miles . .’ away,. (McGlothen suit a forum child-support of] [thousands Court, 113.) obligation to enforce nonresident husband’s support Jurisdiction *11 Bergan upheld Bergan on a different rationale in without dis The court found sufficient contacts 751]. in California: husband “caused an effect” cussing purposely whether had arising fair forum action “Here California is both reаsonable and a for this marital the dissolution. was the marriage and its California parties’ All children The marriage domicile. the of the were bom here. marriage to was dissolved here. The of now seeks judgment dissolution which Nora enforce is a California and judgment obliga from Eldon’s activities arising (Id. tions created 570-571.) California.” at pp. is factu
The of sufficient minimum exist question whether contacts ally a two The trial court must the consistent with dependent. weigh facts availed by test: Some act part “(1) which the defendant has purposefully state, thus of the forum privilege conducting activities within the himself invoking laws; the benefits and protections of its and and the A sufficient “(2) (‘nexus’) between the defendant relationship to appear forum state such that it is and to him reasonable require fair conduct his ‘fairness’ locally requires to defense. The determination of burden or balancing against plaintiff’s of the inconvenience to the defendant relief, interest in effective obtaining adjudicating and the state’s interest this and (a ultimately quality which turns on the nature dispute question Cal. Practice defendant’s forum related & activity).” (Hogoboom King, Law, 3:27, Family Guide: 3-11.) below, trial
In the the in the reviewing jurisdictional proceeding facts contacts court “the rule that a defendant have certain recognized, requiring him, not over any state before it personal exercise be Rather, must each case to mechanical the facts of susceptible application. are circumstances weighed affiliating to determine whether the requisite present.” the facts upon
The trial based court exercised properly case many ways, In this is the the and at trial. presented declarations Kulko, Kulko if sue Sharon New sought reverse of as Ezra Kulko had met, wed, of their married majority York. The Hattises and the spent were in California. life in children bom California. One of their two tax returns. He and California part-time Navy worked outside of filed acknowledging for in San Diego filed dissolution the marriage months.7 addi domiciliary been least six that he had a California children, tion, for his minor payments he failed to provide required support Medi-Cal. through care the State of California to medical causing provide theory the state” The trial court an effect within “causing relied upon “The husband’s acts jurisdiction:8 to sustain the exercise of personal his after such family wife inducing Diego, abandoning his to leave San move, while failing thereafter children to their home state and returning The husband’s intentional. pay any significant child support, [sic] willful, done with full acts can most as reasonably purposeful, be viewed be effected the harm that would contemplation awareness of the fl|] of California. contacts multiplicity court сoncludes husband’s and the acts done acts as well as ‘effects’ respondent jurisdic on California point personal California’s exercise *12 over him.” tion is unclear in theory standing
While of that alone continuing validity Court, family supra,9 law cases v. we following Superior Kulko California other think it continues to to be with consid- be a relevant factor evaluated Kulko, minimum the failure to erations in test. Unlike applying the contacts willful, in with support payments this case provide “purposeful, [and] full harm be effected state of awareness that contemplation 7 domiciliary (a) Civil Code section one California for Under subdivision must be six months in order The term “residence” on the Judicial Coun at least to file for dissolution. Whealton, requires (Whealton supra, v. petition cil form at least six months.” “domicile for Law, 8:55.13, 656, 660; Hogoboom Family supra, King, 67 Cal.2d Cal. Practice & Guide: p. 8-45.) 8 by “causing theory incorporated an effect” in law Judicial Council Com California (14 (1973 ed.) Ann. Civ. Proc. ment to Code of Civil Procedure section 410.10 West’s Code [j[] Causing p. 472), “Bases of over Effect entitled Judicial Jurisdiction Individual... by State Act or Omission Elsewhere.” 9 Kulko, validity Supreme expressed In in dicta concern over United States Court family designed test was the “effects” test in The court determined that the “to law cases. activity causing injury ... wrongful State the State commer reach outside of the within residents,. activity p. affecting (436 .” U.S. at cial еver, . L.Ed.2d How [56 rejection unreasonableness personal upon the court based its the overall asserting jurisdiction We limited California. therefore dis based on Kulko’s contact with agree Superior (1978) Cal.App.3d with Bartlett which 25] rejects family examples are completely law cases. Lontos and McGlothen “effects test” asserting jurisdiction the “effects in which the under test” of cases reasonableness of overall rejection makes a blanket unwarranted. California.” Where the party over whom is asserted minor, commits a act wrongful which impacts on children and a former California, spouse living further on the state’s fisc impact public virtue of Medi-Cal payments, consideration of the “effect” caused in Cali Court, fornia is constitutionally valid.10 (See McGlothen v. Superior supra, Lontos, 106 and re Cal.App.3d Marriage supra, 61.) These “effects” combined with “the multiplicity of the contacts and the acts” of Larry with the State satisfy of California more than minimum contacts test of Internat. v. Washington, Shoe Co. 326 U.S. supra, Court, 310 and Kulko v. 84. The supra, U.S. under California lying principles family law personal jurisdiction cases focus on the rea Kulko, sonableness of exercising jurisdiction. (See 436 U.S. 92p. at p. 141].) We hold Larry’s that contacts with this multiple L.Ed.2d state are sufficient to make the exercise of jurisdiction reasonable.
Disposition A writ of mandate will issue dirеcting the trial court to the service quash of summons in However, the pension action. the decision the mo- denying tion to quash service of summons in the child modification action was proper and to that extent the writ is denied.
Work, J., concurred. Although I BENKE, concur with the result II of reasoning part J. the majority’s I opinion, must respectfully majority’s dissent from the dis- position of Nancy’s that, record, action. I Nancy believe on this may be able to establish domiciled California at time .the *13 action was filed.
The law controlling determination of a person’s domicile is well settled. (Hawes v. Club 698, Ecuestre El Comandante (1st 1979) Cir. 701.) 598 F.2d As Justice Holmes explained, very of domicil is techni- meaning “[t]he cally pre-eminent headquarters every to have in person compelled order that certain rights and duties that have been attached to it the law attempts distinguish 10Kulko cases in which a defendant’s actions in one state “visited physical injury on either property persons or (436 within the State of California.” U.S. at pp. 96-97 p. 144].) L.Ed.2d at constitutionality We personal ju [56 cannot believe that the of risdiction can turn on whether support the failure to payments make results malnutrition of action, the children involved. In contrast simple to a modification a defendant fails to who support payments make has wrongful committed a act which he or she knows or should know will cause an effect in the forum state. conclusion, In view of our unnecessary we find question Larry’s it to reach the whether request for general a continuance voluntarily constituted a appearance subjecting him to Cal- Kulko, jurisdiction. (See 90-91, ifornia supra, 436 pp. 132].) U.S. at fn. 5 L.Ed.2d [56 619, 625 232 U.S. may (Williamson (1914) be v. Osenton determined.” [58 442, any 758, 761, may, given a person Thus while L.Ed. S.Ct. time, residence, only one domicile he or she have than one have more Comandante, 598 F.2d at supra, Ecuestre El (Hawes at a time. v. Club a new Rest.2d, In order to establish 701; 19.) of Laws (1971) Conflict p. § domicile, at the new . . (1) physical presence must show person ” . .’ indefinitely. (Scoggins . remain there location an intention to (2) 1026, 1025, Perry v. (5th Mas citing F.2d v. Pollock Cir. (11th 1984) cert, 1399, 1396, 419 U.S. (1974) denied Cir. 489 F.2d 1974) Rest.2d, 18.) (1971) of Laws also Cоnflict 74]; L.Ed.2d 95 S.Ct. see § domicile is presumed an established More for our importantly, purposes, 1980) Cir. (7th v. Mertes (Sadat until a new one is acquired. to continue Comandante, 1181; F.2d Ecuestre El F.2d Hawes v. Club 701; Rest.2d, of 36; Conflict 466 So.2d (La. 1985) Gowins v. Gowins is essential to domicile continuing Laws of (1971) 19.) This presumption § the residence of a Under FUSFSPA any rational of FUSFSPA. application if the a state court’s military member of the will not support U.S.C.A. (10 military assignment.” residence was “because military of the duty members 1408(c)(4)(A).) Thus the residence of active § ever, jurisdic- This leaves if a claim under FUSFSPA. rarely, will 1408(c)(4)(B), (10 U.S.C.A. upon tion based either domicile or consent. active, military, no but member (C).) the case an uncooperative, effect is given of FUSFSPA unless will meet the requirements forum of a domicile. presumption continuing necessity given be domicile must of continuing
Indeed the concept or any meaning application effect if logical FUSFSPA is to have domicile continuing concept context of the case before us. In rejecting FUSFSPA, which the kind of conduct we invite purposes precisely held, which, saw below; expressly as the court below took conduct place California, they where and children Larry fraudulently lure his wife eight approximately domiciliaries for had been residents and previously he state, any argument thereby acting disengage years, to another and when he filed for dissolution here in California when “domiciled” Tarvin, I conclude Tarvin cannot first be partition might requested. such a FUSFSPA intend 13], CaLRptr. 187 Cal.App.3d *14 result. GP5 of the rejection long- a history of FUSFSPA indicates
Nothing
rejection by
its
In the absence of
continuing
concept.
domicile
standing
and
its existence
knowledge of
congressional
we must assume
Congress,
Tarvin treats
authority such
To
extent
as
of its
acceptance
application.
of
concept
to the exclusion
residency interchangeably
domicile and
it.
domicile,
company
I
respectfully part
would
continuing
as of
that
indicates
is
in the record which
nothing
In this case there
Larry had
30, 1985,
complaint,
her
Nancy
partition
filеd
December
when
Illinois,
or the
Alabama
Georgia,
in either
established a new domicile
residence,”
is
there
Michigan.
particular
he
is
now claims
his “legal
date,
demonstrates,
Larry’s
pres-
physical
or
that
which
on
before
nothing
in that state
an intent to remain
in one of
states concurrent with
ence
those
or
Larry was never
resident
court found
indefinitely. Indeed the trial
dissolution,
his then-
and
he filed for
domiciliary of
the state where
Georgia,
In the
either party.
Illinois had no connection with
current residence of
he had
any
of the states
intended to remain
Larry
absence of proof
California
in,
was still a
Larry
could
that
presume
resided
the trial court
(Scoggins
filed.
dоmiciliary at the time the
action was
partition
Pollock
Mertes,
1181;
Moreover, in this court I not believe the majority, briefing unlike the do trial, Nancy never theory. At prevents Nancy domiciliary pursuing brief, Larry’s California. In his opening conceded domicile was other than it interpreted Miller v. application (CaLApp.), conceded of Miller of as of the date as that is be determined holding personal jurisdiction however, Court, already Reporter ordered the had separation. Suprеme nonetheless, ac- Nancy, of in Miller. opinion Decisions not to publish residents that the were cepted Larry’s argued parties concession and context, “[Ap- In this her brief states: California at the time of separation. domiciliary at the time contention that he is not a resident nor pellant’s] filed, wheth- though, is not certain correct. It. complaint he wherein domiciliary Michigan er is a of the state appellant resident record; where [Ijllinois, the state of he maintains his home of alleges legal maintains located; where his wife currently he is or the state Arkansas her home.” Miller, Lar- Nancy’s willingness accept
Larry’s willingness accept all Nancy’s suggest brief ry’s and the statement premise foregoing continuing domicile and of a neither has considered the party presumption light is understandable its role under FUSFSPA. This inadvertence Indeed, fo- having Miller. Larry’s reliance parties’ upon interpretation all separation, parties at the time of cused on circumstances which existed counsel, action, like the court her Nancy in this including involved Tarvin, residence domicile and seem to the distinction between ignored have
and unfortunately the issue actually of where legally domiciled the time the action partition here was filed was not an simply express part the argument analysis at trial. Nor was the continuing concept domicile below, and its relationship the facts of this case or FUSFSPA addressed or on appeal.
In prohibiting an examination of these level here in questions trial California, we effectively be Nancy from to the excluding only access forum which has proper jurisdiction over her action. Given the impact significance of this and the possibility, confusing state the law when this briefed, matter was first heard I rely and then cannot on the arguments time presented at the of this appeal. concerns,
In light my I would grant the writ instructions to trial court that it determine Larry’s domicile as of the date the partition action was filed in so doing, consider domi- concept continuing cile and its application FUSFSPA.