In the Matter of the Marriage of Joann Williams, Appellee, and Alfonza Williams, Appellant.
BY THE COURT
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.
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
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
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
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.
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.
of the judgment of the Court of Appeals in 52 Kan.App.2d 440,
367 P.3d 1267 (2016).
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
Jeffrey C. Leiker, of Leiker Law Office, P.A., of Overland
Park, argued the cause and was on the brief for appellee.
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
and Procedural Background
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.
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.
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
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
Alfonza object when the court divided the military benefits
while ruling from the bench at the end of trial. The court
"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."
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.
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. . . ."
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.
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).
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.
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.
petition for review followed, and this court granted his
request for review.
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
(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
(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
1: Does the USFSPA impose limitations on a Kansas
court's subject-matterjurisdiction or on a
Kansas court's ability to exercise ...