Petters v. PettersPetters v. Petters
I.
This appeal presents for consideration federal statutory limitations upon this state‘s jurisdictional authority to adjudge a wife‘s claim of rights in her non-resident husband‘s military retirement benefits. In this limited context, we find that by special federal enactment the length of this state‘s long-arm has been considerably abbreviated.
We affirm the Chancery Court‘s dismissal for lack of personal jurisdiction on the claim for a share of the non-resident serviceman‘s
II.
William F. Petters presently resides in Waxahatchie, Texas, and has not been in Mississippi since April of 1974. Prior to that time, it appears that William was a domiciliary of the state of Mississippi. William is a native of Corinth, Mississippi, and graduated from high school in Corinth. Upon graduation he enlisted in the United States Air Force. In April of 1951, William married Joyce Petters in Corinth, Mississippi, and they lived together as husband and wife until April of 1974.
For twenty-two years, William was a professional soldier. He moved his wife and family to Columbus, Mississippi, in 1961, incident to assignment to Columbus Air Force Base, and remained there through 1969. In 1969, the Air Force transferred William to Thailand for eighteen months, then to Barksdale Air Force Base, Louisiana. William‘s family, his wife Joyce and four children, remained in Columbus, Mississippi, and, while at Barksdale AFB, he would commute back to Mississippi on the weekends. William retired from the Air Force in August of 1972 and returned to Columbus at that time. As indicated above, he left Mississippi in April of 1974 and has not been back.
On April 8, 1987, Joyce Petters filed her complaint in the Chancery Court of Lowndes County, seeking a divorce on grounds of desertion,
Joyce caused process to be served on William in the state of Texas by publication. See
On October 21, 1987, Joyce filed in the Chancery Court a motion for issuance of new process and for a judgment for the $5,000.00 debt alleged to be owing to her and for one-half (1/2) of William‘s military retirement pension. This time process was personally served upon William in Waxahatchie, Texas, on October 28, 1987. See
Notwithstanding, the Chancery Court on May 6, 1988, dismissed the complaint for failure of personal jurisdiction over William. The Court predicated its decision on the restrictive provisions of the Federal Uniformed Services Former Spouses’ Protection Act,
Joyce now appeals to this Court.
III.
First, a few basics. Jurisdiction precedes adjudication. Before a court may say anything worth listening to regarding the (de)merits of a party‘s claim, that court must have authority to speak. That court has such authority only when the claim is one within the court‘s subject matter jurisdiction and after the court has acquired personal jurisdiction of the parties. If the court is without jurisdiction — subject matter or personal — no one is bound by anything the court may say regarding the (de)merits of the case. We have recently noted the point in McDaniel, Adm‘r v. Ritter, 556 So.2d 303, 307, n. 4 (Miss. 1989). Put in Civil Rules parlance, defenses under
These realities led the late Judge Henry J. Friendly to recognize that
[n]ot only does logic compel initial consideration of the issue of jurisdiction over the defendant — a court without such jurisdiction lacks power to dismiss a complaint for failure to state a claim — but the functional difference that flows from the ground selected for dismissal likewise compels considering jurisdiction and venue questions first. A dismissal for lack of jurisdiction or improper venue does not preclude a subsequent action in an appropriate forum, whereas a dismissal for failure to state a claim upon which relief can be granted is with prejudice.
Arrowsmith v. United Press Int‘l, 320 F.2d 219, 221 (2d Cir.1963); see also Season-All Industries, Inc. v. Turkiye Sise Ve Cam Fabrikalari, 425 F.2d 34, 38 (3d Cir.1970); Scullin Steel Co. v. National Railway Utilization Corp., 520 F. Supp. 383, 388 (E.D.Mo. 1981); Bruce v. Fairchild Industries, Inc., 413 F. Supp. 914, 916 (W.D.Okla. 1974); Attorney General v. Industrial Nat. Bank of Rhode Island, 380 Mass. 533, 404 N.E.2d 1215, 1217 (1980); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1351, at 563 (1969).
Understanding why
It may well be that Joyce is not entitled to relief on her demand for “one-half (1/2) of the Defendant‘s pension from the United States Air Force,” but we may not tell Joyce this bad news with any authoritative effect until we first get William in court and give Joyce a chance to convince us otherwise.1
What we are saying, in other words, is that, even if Joyce were entitled to recover an interest in William‘s military retirement pension, the Court would have no authority to award it to her until it acquires personal jurisdiction over William. The point is analogous to the way we view the factual allegations of a complaint when a defendant mounts a jurisdictional attack. In
IV.
These things said, we turn to the case at bar. The Chancery Court dismissed Joyce‘s complaint because it thought William Petters, sixteen-years a Texan, could not be subject to suit regarding his retirement pension in Mississippi, and our question is whether the Chancery Court was correct in that regard. The court has no authority to adjudge the (de)merits of Joyce‘s claim (even by saying that, under Mississippi law, she has no rights in her former husband‘s military retirement pension) until it has both Joyce and William “in court.”2
Personal jurisdiction jurisprudence, constitutional statutory amenability, as well as implementing procedure, is no different in domestic relations litigation than in other cases. Ordinarily this state has authority to adjudge the important rights of a non-resident so long as the defendant has constitutionally adequate minimum contacts with this state, see Rothschild v. Hermann, 542 So.2d 264, 265 (Miss. 1989); Carpenter v. Allen, 540 So.2d 1334, 1335-37 (Miss. 1989); Penton v. Penton, 539 So.2d 1036, 1038 (Miss. 1989); Noble v. Noble, 502 So.2d 317, 319-20 (Miss. 1987); see generally Kulko v. California Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132, 140 (1978), and other legal requisites are satisfied. McDaniel, Adm‘r v. Ritter, 556 So.2d 303, 307 n. 4 (Miss. 1989).
In September of 1982, the Congress enacted FUSFSPA and resolved a controversy theretofore existing regarding state authority to adjudge the rights of (ex)spouses in a retired serviceman‘s military retirement pension. At issue today is a provision respecting personal jurisdiction and affording the ex-serviceman protections in that regard.
A court may not treat the disposable retired or retainer pay of a member in the manner described in paragraph (1) [e.g., adjudging that his (former) wife has a property interest in it] unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court.
Other states have considered the question and held uniformly, in this limited context, that a state‘s process arm is not nearly so long as otherwise. In re Marriage of Hattis, 242 Cal. Rptr. 410, 196 Cal. App.3d 1162 (1987); Southern v. Glenn, 677 S.W.2d 576 (Tex. App. 4 Dist. 1984), error refused, n.r.e.; Dunn v. Dunn, 708 S.W.2d 20 (Tex. App. 5 Dist. 1986); White v. White, 543 So.2d 126 (La. 1989); In re Marriage of Parks, 737 P.2d 1316, 48 Wash. App. 166 (1987); Mortenson v. Mortenson, 409 N.W.2d 20 (Minn. 1987).
Today‘s case is our first occasion to construe the personal jurisdiction limitations of
In Kovacich, the Texas Court of Appeals expressly held that personal jurisdiction within
Of course, the protections of
In sum, FUSFSPA provides three bases upon which the courts of this state may acquire in personam jurisdiction: (a) his residence in this state, other than because of military assignment; (b) his domicile in this state; or (c) his consent to the jurisdiction of the court. William‘s absence from Mississippi for fifteen continuous years precludes
V.
Joyce also seeks to acquire personal jurisdiction over William for purposes of asserting and litigating her claim that she incurred $5,000.00 in debts by reason of William deserting in 1974. Personal jurisdiction here is not limited by
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
ROY NOBLE LEE, C.J., HAWKINS, P.J., and PRATHER, ANDERSON, PITTMAN and BLASS, JJ., concur.
DAN M. LEE, P.J., concurs in parts I, II, III and IV and dissents without opinion as to part V.
SULLIVAN, J., dissents.
SULLIVAN, Justice, dissenting:
My dissent to the majority‘s decision is twofold. First, in the majority interpreting the statute, and second, in its interpretation. It seems to me that this Court must initially consider the propriety of Mississippi chancery courts awarding a non-military spouse direct payments from the government. This needs to be addressed, considering Mississippi‘s marital property law, prior to interpreting the federal statute‘s jurisdictional section.
The majority cites authority in support of its proposition that in personam jurisdiction is to be addressed prior to considering the merits of the case. Of course, I acquiesce to this in the traditional “minimum contacts” analysis. But, here we are dealing with statutorily imposed “personal jurisdiction.” The Federal Uniform Service Former Spouses’ Protection Act, Title
Under the traditional in personam analysis, there is no doubt that our courts have jurisdiction over Mr. Petters. Congress, however, imposed another layer for jurisdiction when the subject matter is the division of military pension. If Mississippi does not allow the division of the pension then the statute would have no application whatsoever in our courts.
There is no need for this Court to rule that we do or do not have personal jurisdiction under a federal statute if it has no
Secondly, however, it is clear to me that Powers v. Powers, 465 So.2d 1036 (Miss. 1985), stands for the proposition that Mississippi marital property law permits courts to divide, as alimony, a former spouse‘s military pension. The lower court awarded alimony in the sum of not less than $200.00 per month or one-half of the husband‘s gross naval retirement pay including increases, whichever is greater. This Court affirmed the trial court‘s decree based on the authority of the FUSFSPA.
This being true, then I still am of the opinion, more than ever, that the majority is in error. Its interpretation of the personal jurisdiction section is too restrictive. The residency prong of the statute must be interpreted to include past residency, other than because of military assignment. This would prevent multiple suits and comply with the purposes of the enactment of the jurisdictional section to prevent forum shopping.
The majority is quite correct in the jurisdictional limitation set out in FUSFSPA. A Mississippi court may not deal with the disposable retired pay of military personnel unless the court has jurisdiction by reason of (a) his residence in this state, other than because of military assignment; (b) his domicile in the jurisdiction of the court; or (c) his consent to the jurisdiction of the court.
Under a very narrow, narrow interpretation of the statute, the conclusion reached by the majority would also be correct. The majority requires that William currently be a resident or domiciled in the State of Mississippi for our courts to have in personam jurisdiction over him. The facts of this case suggest that William is not presently a resident nor is he domiciled within the state.
William, however, was a past domiciliary and resident of Mississippi. His previous contacts with this state are extensive. He was born, raised, married, had four children, and divorced in Mississippi. During his entire military career, he was a domiciliary of Mississippi and for a vast majority of that career a resident of Mississippi. He did change his Mississippi residency in 1974 after he retired from the military.
If the congressional intent in enacting
This analysis of using past contacts could be applied to the domicile prong of
The most logical interpretation of
I would interpret the federal statute much more broadly than does the majority. If residency in Mississippi was other than because of military assignment the limiting personal jurisdiction section of FUSFSPA would be satisfied. It should not, from a practical standpoint, be limited to the military defendant‘s current residence. Accordingly, I would reverse and remand this case to the chancellor for a division of the military pension.
Notes
appear[s] to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim.
Lester Engineering Co., Inc. v. Richland Water & Sewer District, 504 So.2d 1185, 1187 (Miss. 1987); Bias v. Bias, 493 So.2d 342, 343-44 (Miss. 1986); Luckett v. Mississippi Wood, Inc., 481 So.2d 288, 290 (Miss. 1985); Busching v. Griffin, 465 So.2d 1037, 1039 (Miss. 1985); Franklin County Cooperative v. MFC Services (A.A.L.), 441 So.2d 1376, 1377 (Miss. 1983).From this perspective, we can imagine two possibilities under which Joyce might recover. First, we know that William has lived in Texas since 1974. Texas is a community property state. See, e.g., Koepke v. Koepke, 732 S.W.2d 299, 300 (Tex. 1987); Grier v. Grier, 731 S.W.2d 931 (Tex. 1987). If Joyce can somehow show that William earned a part of his military retirement pension while domiciled in Texas, she may have an enforceable property right. See Haynes v. McIntosh, 776 S.W.2d 784, 786 (Tex. App. 1989); Newman v. Newman, 558 So.2d 821, 825 (Miss. 1990). Second, with but slight amendment to her pleading, Joyce may pursue a claim for alimony, the amount of which may be fixed by (partial) reference to the amount of William‘s military retirement pension. See Bowe v. Bowe, 557 So.2d 793, 795 (Miss. 1990); Colvin v. Colvin, 487 So.2d 840, 841 (Miss. 1986).
It appears to me that Mississippi law would apply under a conflicts analysis by a Texas