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In re Marriage of Williams

Supreme Court of Kansas

May 18, 2018

In the Matter of the Marriage of Joann Williams, Appellee, and Alfonza Williams, Appellant.


         1. 10 U.S.C. § 1408(a)(1)(A) and (c) (2012), a provision within the Uniformed Services Former Spouses' Protection Act (USFSPA) that authorizes "any court of competent jurisdiction of any State" to "treat disposable retired pay payable to a member . . . either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court, " recognizes the jurisdiction of any state court with subject-matter jurisdiction under relevant state laws.

         2. Kansas statutes grant Kansas district courts subject-matter jurisdiction to hear divorce actions and to divide property, including military retirement benefits. As such, Kansas district courts are courts of competent jurisdiction under the USFSPA.

         3. The USFSPA does not preempt the exercise of personal jurisdiction if a military member resides in Kansas (other than because of military assignment), has his or her domicile in Kansas, or consents to a Kansas court's jurisdiction. But, by providing limited grounds for the exercise of personal jurisdiction, the USFSPA preempts Kansas' long-arm statute.

         4. Kansas law, like federal law, recognizes a person can waive the defense of lack of personal jurisdiction by expressly or impliedly consenting to jurisdiction. A party impliedly consents by making a general appearance, by filing a responsive pleading without raising personal jurisdiction as a defense, or by not filing a motion raising the defense. Constructively, these actions waive the defense of lack of personal jurisdiction.

         5. If posttrial proceedings question the jurisdiction of the court to have entered judgment in divorce proceedings and the posttrial proceedings result in a modification of the original judgment, K.S.A. 2017 Supp. 23-2715 applies and authorizes the district court to award attorney fees.

         6. To preserve the right to attorney fees incurred in proceedings before the Court of Appeals, a party must timely file a motion under Supreme Court Rule 7.07(b) (2018 Kan. S.Ct. R. 50) and provide all the information required by the rule.

         Review of the judgment of the Court of Appeals in 52 Kan.App.2d 440, 367 P.3d 1267 (2016).

          Appeal from Shawnee District Court; C. William Ossmann, judge.

          Michael E. Riling, of Riling, Burkhead, & Nitcher, Chartered, of Lawrence, argued the cause and was on the brief for appellant.

          Jeffrey C. Leiker, of Leiker Law Office, P.A., of Overland Park, argued the cause and was on the brief for appellee.


          LUCKERT, J.

         This case concerns a challenge to a divorce decree entered more than 20 years ago. The 1994 decree divided the husband's "army retirement benefits" as marital property, awarding the wife "25% of Husband's army retirement benefits, as her sole and separate property." The husband now asks this court to determine the district court lacked jurisdiction to divide his military retirement benefits pursuant to the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. § 1408 et seq. (2012), and to reverse the district court's award of attorney fees. We reject his arguments and affirm the district court.

         Facts and Procedural Background

         Joann and Alfonza Williams married in 1985. They lived together in Topeka before they married. Following their marriage, they moved as required by Alfonza's career, living in Heidelberg, Germany; Fort Campbell, Kentucky; and Illesheim, Germany. Joann moved back to Topeka on July 5, 1992. Alfonza remained in Germany until he moved in November 1992 to Fort Hood, Texas, where he was stationed.

         Joann filed her petition for divorce on October 8, 1993. She requested an absolute decree, child custody and support, spousal maintenance, and an equitable division of personal property and debts. She did not specifically request a division of Alfonza's military retirement in her petition. Alfonza filed his answer on November 29, 1993. He did not object to the court's jurisdiction.

         At the trial on January 31, 1994, Joann was represented by counsel, but Alfonza was not. However, he was accompanied by a senior noncommissioned officer. Alfonza explained the officer was present in case any questions arose concerning military matters.

         In Joann's opening statement, her counsel identified Alfonza's military retirement benefits as one of the major issues. Alfonza did not voice any objection. During his cross-examination of Joann, he referenced an offer of settlement they had discussed that included giving her 20% of his military retirement. Joann's counsel again addressed her claim to military retirement benefits in closing argument. Once again, Alfonza did not object to the court's jurisdiction.

         Nor did Alfonza object when the court divided the military benefits while ruling from the bench at the end of trial. The court stated:

"I will adopt the petitioner's request for retirement that is a fair allocation of retirement, basically 25 per cent, that is half of half, and you have been in the military for almost 16 years, you have been married 8. She is entitled to have half of a half which is 25 percent. Adopt the language that is included in your decree.
"[Joann's Counsel]: That's correct, he hasn't been in 16, he has been in-he will have approximately 15 in 1995.
"THE COURT: Okay. The division of personal property will be pursuant to the proposed decree."

         The court also found "the evidence is sufficient that the jurisdictional grounds pursuant to Kansas Statutes have been satisfied, " but the court did not make any findings specific to its jurisdiction over the military benefits.

         The divorce decree was prepared by Joann's counsel and signed by the court on February 23, 1994. The decree stated the court had jurisdiction over the parties and the subject matter. It went on to describe the property division:

"Husband is currently a member of the U.S. Army, and the court finds that Husband's army retirement benefits are marital property. Because of the duration of the marriage, the relative earning capacity of the parties, and the overall relative financial condition of the parties, Wife is awarded 25% of Husband's army retirement benefits, as her sole and separate property, free and clear of any right, title or interest of Husband. . . ."

         Neither party appealed.

         Approximately 19 years later, on March 8, 2013, Joann filed a pro se motion to garnish Alfonza's retirement. Alfonza responded on November 29, 2013, with a motion to set aside the portion of the 1994 divorce decree awarding Joann a share of his military retirement. Nowhere in this motion to set aside did Alfonza explain the procedural mechanism for setting aside a divorce decree entered almost two decades before. At oral argument before this court, Alfonza's counsel explained his view that the judgment was void for lack of jurisdiction. See K.S.A. 60-260(b)(4) (allowing relief from judgment to be filed within a reasonable time if the judgment was void); Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1024, 58 P.3d 1284 (2002) ("A judgment is void if the court that rendered it lacked subject matter jurisdiction, personal jurisdiction, or acted in a manner inconsistent with due process."). Joann has not raised any procedural objections to Alfonza's motion.

         In the motion, Alfonza did not dispute "jurisdiction of the parties and the subject matter of the action, i.e., the granting of the divorce of the parties, " but he argued "the Court lacked subject matter jurisdiction over the division of the Respondent's disposable military retired pay." He further contended "the divisibility of such a pension by a state court, is a federal law question. Absent the granting of jurisdiction to a particular state by federal law, the state cannot divide a Servicemember's pension." Alfonza noted "[t]he jurisdictional basis of the divisibility of Servicemember's military pension is set forth with specificity at 10 U.S.C. § 1408(c)(4), " and he argued the requirements imposed by that provision had not been met. See 10 U.S.C. § 1408(c)(4).

         A different district court judge from the one who presided over the divorce proceedings, after hearing testimony and arguments, rejected Alfonza's jurisdictional argument. The judge held the court presiding over the original divorce trial "did have jurisdiction to divide the military retirement benefits as set forth in Petitioner's Trial Briefs. The Respondent participated in the case by filing an answer and actively participating in the case under 10 U.S.C.A. 1401." The judge also addressed an ambiguity in the 1994 decree and modified the earlier court order to reflect what it believed was the intended equitable division. Finally, the judge awarded Joann her attorney fees.

         Alfonza appealed. Joann did not cross-appeal the modification of the division. Therefore, the two overarching issues before the Court of Appeals were (1) whether the district court had jurisdiction to divide Alfonza's military retirement benefits and (2) whether the district court had the authority to award attorney fees. The Court of Appeals affirmed the district court. As to the district court's jurisdiction, the Court of Appeals concluded "that Alfonza's failure to object to the district court's jurisdiction in 1994 when the issue of the division of his military retirement was taken up at the trial of the divorce action constitutes 'consent to the jurisdiction of the court' under [10 U.S.C.] § 1408(c)(4)(C) [the USFSPA]." In re Marriage of Williams, 52 Kan.App.2d 440, 452, 367 P.3d 1267 (2016). The Court of Appeals also concluded the district court had authority to award Joann attorney fees. 52 Kan.App.2d at 453.

         Alfonza's petition for review followed, and this court granted his request for review.


         Alfonza's petition for review divides the two overarching issues into four questions. For purposes of our analysis, we have combined his third and fourth questions, made some slight modifications to his wording, and organized our analysis in three parts:

(1) Does the USFSPA impose limitations on a Kansas court's subject-matter jurisdiction or on a Kansas court's ability to exercise personal jurisdiction over a servicemember?
(2) Does Alfonza's failure to object during the divorce proceeding to the district court's jurisdiction equate to his "consent" to jurisdiction under the provisions of the USFSPA? and
(3) Did the district court have authority to award Joann attorney fees?

         Issue 1: Does the USFSPA impose limitations on a Kansas court's subject-matterjurisdiction or on a Kansas court's ability to exercise ...

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