To: Scott Anderson
RE: Appeal against the decision of the Wyoming district court.
I have reviewed several case laws regarding the intended appeal you wish to file challenging various issues involving the divorce matter. In some areas, Wyoming case law is surprisingly and extensively developed on matters touching upon property settlement agreements, and military personnel pension and retirement. Below is a summary of my findings for your review and further discussion.
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An order denying relief under Rule 60(b) may be appealed. McBride v. McBride, 598 P.2d 814, 816 (Wyo. 1979). The question that looms now is the issues that may be raised in the appeal against the decision of the district court.
First, I wish to agree with you and state that it is indeed true that jurisdiction is everything and without it, a court cannot proceed and it must immediately down its tools, in so far as that case is concerned. As you correctly stated, all retired military members are subject to the USFSPA. The act dictates situations where the court may have jurisdiction over a member. In your communication you correctly stated that “The USFSPA states that for a State court to have authority to divide a member’s military retired pay, it must have 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. A court may have jurisdiction over an absent member by reason of some state statute, but that may not satisfy the USFSPA’s jurisdiction requirement.”
The contention here is that the court indicates you subjected yourself to its jurisdiction by way of consent. However, the court does not go into detail to disclose exactly how you gave your consent. I immediately began to research to establish case law that challenges situations where the court alleges it has jurisdiction without properly highlighting how or why. I researched various case laws and sadly I have to admit that the court had jurisdiction in the matter for the following reason.
Case law unquestionably supports the position that no jurisdiction lies on a party that is not domiciled in the state. Clearly this was the case as you were not residing in Wyoming at the time. However, there is still the question of “consent” to jurisdiction.
I came across the case law of KELLY v. KELLY 2003 WY 133 78 P.3d 220. This is a divorce matter involving separation of property including pension and retirement benefits. One of the parties was also a retiree of the military. The question of jurisdiction with regard to the provisions of the USFSPA was brought up by the parties and the same was addressed by the court as follows:
“The USFSPA’s jurisdictional requirement is found in 10 U.S.C. § 1408(c)(4). This is another “killer” requirement. If it is not met, the former spouse’s application for retired pay as property payments under the USFSPA will be rejected. For a court to have the authority to divide military retired pay, the USFSPA requires that the court have “C-4” jurisdiction over the military member in one of three ways. One way is for the member to consent to the jurisdiction of the court. The member indicates his or her consent to the court’s jurisdiction by taking some affirmative action with regard to the legal proceeding, such as filing any responsive pleading in the case. Simply receiving notice of filing of the divorce complaint or petition is not sufficient. Consent is the most common way for a court to have “C-4” jurisdiction over a member.
The other ways for the court to have C-4 jurisdiction is for the member to be a resident of the State other than because of his or her military assignment, or for the court to find that the member was domiciled in the particular State. Now, the key with regard to domicile is that it should be the court making this determination, and it should be noted in the divorce decree. (KELLY v. KELLY 2003 WY 133 78 P.3d 220)
In Wyoming, the courts have taken the position of Kelly v. Kelly in construing consent to the court’s jurisdiction. Considering the above case law, it would appear that by simply filing a response or any document in court under your own capacity as a defendant in the matter, indicated to the court that you consented to its jurisdiction to determine the matter.
Thus, filing an appeal to challenge the your “consent” to the court’s jurisdiction has a low probability of success unless, you did not file any response in which case you will not have subjected yourself to the court’s jurisdiction.
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Further in the discussion of jurisdiction, is the question of state court jurisdiction over military pension and retirement benefits. In McCarty v. McCarty, 453 U.S. 210, 220, 101 S. Ct. 2728, 2735, 69 L. Ed. 2d 589 (1981), it was determined that property distribution as a result of the dissolution of a marriage is generally a matter for state law. In Broadhead v. Broadhead, 737 P.2d 731, 737 (Wyo. 1987), the court determined that retirement benefits, vested or non-vested, constitute marital property is a matter for the district court’s discretion.
However, federal law, especially regarding military retirement pay, has stated some limitations. In McCarty, the United States Supreme Court expressly held federal law, at the time, precluded state courts from dividing military retirement pay under community property laws. Noting the serious plight of some former spouses of military retirees, the court invited Congressional intervention to protect the former spouses. In a direct response to McCarty, Congress enacted the USFSPA restoring certain rights to former spouses of military members. See Parker v. Parker, 750 P.2d 1313, 1314 (Wyo. 1988).
The USFSPA authorizes states to treat “disposable retired or retainer pay” as marital property subject to the state court’s determination of equitable distribution. This was established in the case of Mansell v. Mansell, 490 U.S. 581, 584-85, 109 S. Ct. 2023, 2026, 104 L. Ed. 2d 675 (1989),
Under the USFSPA, “Disposable retired pay” is defined as “the total monthly retired pay” which a member or former member of the armed forces is entitled to receive minus some specific deductions. 10 U.S.C. § 1408(a)(4). Among those deductions are amounts of retired pay waived to receive disability benefits. 10 U.S.C. § 1408(a)(4)(B). The USFSPA, therefore, grants states the authority to treat only disposable retired pay, not the total amount of retired pay, as marital property subject to equitable distribution. See Mansell v. Mansell.
A mechanism is created by the USFSPA permitting direct payments of disposable retired pay, according to terms of a property settlement or support arrangement, to the former spouse of a member or former member of the military. 10 U.S.C. § 1408(d). Two limits are imposed on the direct pay mechanism. First, the direct payments may only be made to a former spouse who was married to a member of the military “for a period of 10 years or more during which the member performed at least 10 years of service creditable in determining the member’s eligibility for retired pay * * *.” 10 U.S.C. § 1408(d)(2). Second, the government will only permit the direct payment mechanism to be used to distribute fifty percent of the disposable retired pay. 10 U.S.C. § 1408(e)(1).
Thus, the question of whether the state court has jurisdiction to determine matters pertaining to pension and retirement payments of military personnel is settled. In addition to consenting to court’s jurisdiction, the courts have authority to deal with the pension of a retired military personnel as matrimonial property and may issue orders directing distribution of the same between the spouses.
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We must also consider the question of the property settlement agreement and whether the same may be equated to matrimonial separation agreement.
Per the case law I have come across, it is firmly established that “property settlement agreements entered into by the parties to a divorce action are generally recognized and given force and effect in the decree,”. This position was established and upheld in Prentice v. Prentice, Wyo., 568 P.2d 883, 886 (1977), Clauss v. Clauss, Wyo., 459 P.2d 369 (1969); Beard v. Beard, Wyo., 368 P.2d 953 (1962). In the above cases, it was further determined that such agreements are highly favored by the courts in so far as they are fair and equitable.
Thus, it appears that agreements such as the one entered into by defendant and plaintiff are favored by the courts. In Beard v. Beard, supra, 368 P.2d at 955, the court stated that “Hence it would seem that if the agreement were entered into voluntarily and by competent persons and if the contract were not against public policy or against the best interest of the children, the only proper course for the court was to enforce it, or, rather, not to interfere with it.”
In the Beard case, the former Mrs. Beard was attempting to modify the decree of divorce several months after it had been entered – after the trial court had expressly adopted the agreement as being fair and equitable. In Clauss v. Clauss, the supreme court of Wyoming upheld two property settlement agreements entered into by the parties. Further, the court expressly decreed that the agreement constituted, “a true, fair and equitable distribution and division of the parties’ property.” A similar position was also established in Pavlica v. Pavlica, Wyo., 587 P.2d 639 (1978).
Thus, in the eye of the court, a separation agreement and a settlement agreement are treated no different from each other. It is but a technicality of names as both agreements exist in divorce proceedings and are both intended to assure amicable separation of the spouses, be it children, responsibilities or property.
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Based on the Wyoming case law I have read and digested, it is my recommendation that an appeal has little probability of success. Should you still wish to proceed with the appeal I shall be happy to prepare the requisite documents.
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