# Petition — United States v. Morton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0704%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 467 U.S. 822 ## Text Office - Supreme Court, U.S, 83-916 FILED GEC 2 068 No. a I STEVAS. Iu the Supreme Court of the Uni rr OCTOBER TERM, 1983 UNITED STATES OF AMERICA, PETITIONER Vv. ALLAN WAYNE MORTON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT Rex E. LEE Solicitor General J. PAUL MCGRATH Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General SAMUEL A. ALITO, JR. Assistant to the Solicitor General LEONARD SCHAITMAN LINDA JAN S. PACK Attorneys Department of Justice Washington, D.C. 20530 (202) 633-2217 QUESTION PRESENTED Whether, when the federal government, acting pur- suant to 42 U.S.C. (Supp. V) 659, honors a facially valid writ of garnishment issued by a state court to collect alimony or child support owed by a federal employee, the government may be liable for reim- bursement if it is later held that the state court lacked personal jurisdiction over the employee. (1) TABLE OF CONTENTS Page RIE SIRE Fein ee a aaa aE 1 aa a nniauanaenindoann 1 Statutory and regulatory provisions involved ................ 2 EEE EE Sie A ee 2 Reasons for granting the petition —........0.......0.......c00 5 NE 21 REALS Sa Re la GE BE AE SC LO ae ee eC 6la EE A a SS IE 62a SENOS EE sl 98a ER i a Rc ee oer 104a Tn SIRES RST SRSE SRS REE a 109a TABLE OF AUTHORITIES Cases : Buchanan V. Alexander, 45 U.S. (4 How.) 19 ........ 2 Calhoun v. United States, 557 F.2d 401, cert. de- gS re ee eR 12 Chemehuevi Tribe of Indians v. FPC, 420 U.S. 896.. 8 Clark vy. Uebersee Finanz-Korporation, A.G., 332 Sg LINE I OR er CP Oe 8 Cunningham v. Department of the Navy, 455 OOO Ra 15 sR, I od ccscpcencctesesensocncntvcs 2 International Shoe Co. v. State of Washington, 326 ARSC eee 4 Jizmerjian V. Department of the Air Force, 457 F, Supp. 820, aff'd, 607 F.2d 1001, cert. denied, I es 14-15 Overman V. United States, 568 F.2d 1287 ................ 18 Philbrook v. Glodgett, 421 U.S. 707 ........0000.0000000..... 8 Popple v. United States, 416 F. Supp. 1227............. 15 (ui) IV Cases—Continued Page Red Lion Broadcasting Co. v. FCC, 895 U.S. 367.... 11 Rush v. United States Agency for International Development, No. 82-1853 (D.C. Cir. Apr. 26, PN a celsennicemeneclionaliiibidaie 13-14 Slotare V. Sletare, TIS U.G. 1........20000seceseccescesecsnssecoes 15 Snapp V. United States Postal Service-Texarkana, REST Eee Rs 14 Sniadach vy. Family Finance Corp., 395 U.S. 337.... 11 oe GE th ere 11 United States v. Clark, 454 U.S. 556............0000000... 11 Statutes and regulations: Social Security Act, 42 U.S.C. (& Supp. V) 659 eT yk NSS ee A ip ae MT 2 8 ea CAE Cn Nee CO ne Pl 2, 18, 98a ef a mI ie " 4 42 U.S.C. (Supp. V) 659(a) ............. 2, 4, 6, 9, 18, 20 42 U.S.C. (Supp. V) 659(d) ........0000000. 8,18 42 U.S.C. (Supp. V) 659(f) ............. 2, 3, 6, 7, 8, 12, al 18, 14, 15 oe See Se ee ee 8-4 42 U.S.C. (Supp. V) 662(e) (1) ........00000..... 6, 8, 98a Social Services Amendment of 1974 Pub. L. No. 98-647, §101(a), 88 Stat. 2867 00000. 2 Tax Reduction and Simplification Act of 1977, Pub. L. No. 95-30, Title V, §501(a), 91 Stat. BI cahcteinssacercaleasianalaieianne thc niatediln As cmadetatadnaaiacaians 2 Uniform Reciprocal Enforcement of Support Act, 9 U.L.A. 643 (1979) ae Ne Ee icikntisin naceictacisbaseuctsanonion 28 U.S.C. (Supp. V) 1491 Ala. Code (1977): —_ ann HOR RRR Ree Ree Rete ee ee eens eseseees ee errr et ee eee eee eee ee eee eee sss Ariz. Rev. Stat. Ann. § 12-1592 (1982) Ark. Stat. Ann. § 31-446 (repl. 1962) —_ oo 8 Vv Statutes and regulations—Continued Page Cal. Civ. Proc. Code § 706.154(b) (West cum. I TIER gisele cece nllnebchacaacaatbbaenebonsbiinaiadian 9 Ill. Ann. Stat. ch. 62 (Smith-Hurd 1972): I ia a 2s il dierent Segneinmeemeaniaiuiiens 20 EEE ES a Eee eee 10 Ind. Code Ann, § 34-1-11-29 (Burns 1978) ............ 10 Iowa Code Ann. § 642.18 (West 1950) —.........0....... 10 Mass. Ann. Laws, ch. 246, § 48 (Michie/Law IIE Susi oc 1c oak a nacanecenlesateenastiaiahibineiniocuns 10 Md. Cts. and Jud. Proc. Code Ann. § 11-601(a) a ERS aT ¢ ae OE 10 Mo. Ann, Stat. § 525.070 (Vernon 1974) .............. 10 N.D. Cent. Code § 82-09.1-15 (repl. supp. 1983) .. 10 N.H. Rev. Stat. Ann. § 512.28 (repl. 1968) .......... 10 N.J. Stat. Ann. § 2A: 17-58 (West 1952) ....000000...... 10 N.Y. Civ. Prac. Law § 5209 (McKinney 1978) .... 10 N.Y. Dom. Rel. Law §§ 30-48 (McKinney 1977).... 16 Ohio Rev. Code Ann. (Page supp. 1982) : I oe sce iciinioaaneeats 20 8 CES RET i notice of appeal to the Supreme Court of Virginia. During the pendency of the appeal, the plaintiff and Patricia Kay Morton settled all matters involved in the Virginia case, including the setting aside of the separation agreement. Pursuant to this settle- ment Patricia Kay Morton received $12,500 in cash from the sale of the Loudoun County house, and she was per- mitted to keep all the property (furniture, china, silver, crystal, other valuables collected by the Mortons over the years, and an automobile) which she had taken with her when she moved to Alabama from Virginia in September 1973. In view of the settlement, the Circuit Court of 65a Loudoun County entered a final decree on June 10, 1976, dismissing the cause. In addition to paying Patricia Kay Morton the sum of $12,500 in settlement of the Virginia litigation, the plaintiff voluntarily continued to make child support pay- ments, as he felt a moral obligation to do so. These child support payments were at the rate of $500 per month until the older child became 18 years of age, and then at the reduced rate of $250 a month for the younger child, until Patricia Kay Morton began garnishing the plaintiff’s pay under circumstances described hereafter. On August 28, 1974 (during the pendency of the case in Loudon County, Virginia), Patricia Kay Morton filed suit in the Circuit Court for the Tenth Judicial Circuit of Alabama against Colonel Morton for divorce, for the custody of the two minor children, together with support and maintenance for the children, and for alimony. Suit papers in the Alabama divorce proceeding were sent by registered mail to Colonel Morton in Alaska. He received them on September 17,’ 1974. No personal service was made on Colonel Morton at any time or at any place in connection with the Alabama divorce suit. Colonel Morton did not make an appearance at any time in the Alabama divorce suit. Colonel Morton having failed, within the time per- mitted, to plead or otherwise defend the suit, judgment by default was entered against him on August 14, 1975, by the Circuit Court for the Tenth Judicial Circuit of Alabama. The judgment granted Patricia Kay Morton a divorce from Colonel Morton, it awarded to her the cus- tody of the two children, and it ordered Colonel Morton to pay to Patricia Kay Morton the sum of $500 each month “as alimony for * * * [Patricia Kay Morton] and partial support and maintenance of the * * * minor children.” (As of August 14, 1975, the older son was already past the age of 18.) On December 27, 1976, the Air Force Finance Officer received by certified mail a writ of garnishment which 66a had been issued by the Register of the Circuit Court for the Tenth Judicial Circuit of Alabama as ancillary to the decree of August 14, 1975. The writ sought to gar- nish pay of the plaintiff in the amount of $4,100. It was accompanied by a copy of the judgment in the Ala- bama divorce case, which recited that Colonel Morton was to pay $500 per month to Patricia Kay Morton “as alimony for * * * [Patricia Kay Morton] and partial support and maintenance for the * * * minor children.” The writ was also accompanied by an affidavit executed by Patricia Kay Morton, stating that the sum of $4,100 was due and owing “for ailmony and child support” under the judgment dated August 14, 1975. (As of De- cember 27, 1976, when these papers were received by the Air Force Finance Office, the older Morton son was not Only past ‘the age of 18, but he was also married.). The Air Force promptly notified the plaintiff regard- ing the receipt of the writ of garnishment. The plain- tiff took the position before the Finance Office—on the advice of an attorney in the Judge Advocate’s Office— that the decree of the Alabama court ordering him to pay alimony and child support was void for lack of juris- diction, as he was neither domiciled nor a resident of Alabama and he was never properly served or notified of the Alabama divorce proceeding. He also informed the Finance Office that he had paid all of his obligations to Patricia Kay Morton. As the writ of garnishment was issued on the regular form used by the Alabama courts, the Air Force Finance Office honored the writ of garnishment despite the plain- tiff’s protest, made deductions from the plaintiff’s pay, and paid $4,100 over to the Circuit Court for the Tenth Judicial District of Alabama. It appears that the Fi- nance Office did not seek advice from the Judge Advocate General’s Office, which is the law office of the Air Force. Subsequently, the Air Force Finance Office received additional writs of garnishment from the Circuit Court for the Tenth Judicial Circuit of Alabama. These writs, 67a which were also on the regular form used by the Alabama courts, sought to garnish additional pay of the plaintiff. The evidence in the record does not show whether—and, if so, when—the plaintiff was notified of the receipt of these writs. Although the plaintiff, in connection with the December 27, 1976, writ of garnishment, had in- formed the Finance Office that the Alabama Court did not have jurisdiction to enter a judgment against him for alimony and child support, the Finance Office honored the writs of garnishment referred to in this paragraph, made deductions from the plaintiff’s pay, and paid the money over to the Circuit Court for the Tenth Judicial District of Alabama. All of these writs were honored after the older Morton son was past the age of 18 and was married, and some of the money was deducted from the plaintiff's pay and paid over to the Alabama court after the younger son was past the age of 18. The present action was subsequently filed by the plain- tiff to recover the money thus garnished. The plaintiff and the defendant sought to dispose of this action by filing cross-motions for summary judg- ment. Both motions were denied by the court, without prejudice to either party, in an order dated May 19, 1978. The court stated (in part) that on the basis of the materials submitted in connection with the motions, it could not say whether or not the Alabama court had jurisdiction to enter a money judgment against the pres- ent plaintiff for alimony and child support, or whether the legal process served on the United States on behalf of Patricia Kay Morton was regular on its face. The court remanded the case to the trial division; and indicated that the initial task would be to develop the facts with respect to two issues: First, whether the plaintiff was a domiciliary of the State of Alabama when Patricia Kay Morton filed her divorce action in August 1974. Second, whether the Circuit Court for the Tenth Judi- cial Circuit of Alabama relied upon and merged the sep- 68a aration agreement of September 15, 1973, into the final divorce decree when the Alabama court granted the award of $500 per month to Patricia Kay Morton for alimony and child support. The two issues will be discussed in reverse order. The Merger Issue The evidence in the record clearly shows that the sep- aration agreement of September 15, 1973, between Colo- nel Morton and Patricia Kay Morton was not introduced before the Circuit Court for the Tenth Judicial Circuit of Alabama and was not made a part of the record in the divorce case which Patricia Kay Morton filed against Colonel Morton. Accordingly, the separation agreement was not relied upon and merged into the final divorce decree when the Alabama court granted to Patricia Kay Morton the award of $500 per month for alimony and child support. The Domicile Issue The essential elements of domicile are residence in fact, coupled with the purpose to make the place of resi- dence one’s home. Texas v. Florida, 306 U.S. 398, 424 (1939). As the plaintiff was born in the State of Ala- bama on April 15, 1934, and lived there continuously until July 1957, it is obvious that the plaintiff was domi- ciled in Alabama for the first 23 years of his life, at least. Also, it must be borne in mind that, once acquired, a person’s domicile continues until a new one is acquired. Desmare v. United States, 938 U.S. 605, 610 (1876). The plaintiff contends, however, that Alabama was no longer his domicile during the period between August 28, 1974, when Patricia Kay Morton filed suit against him in Alabama for divorce, for child custody and support, and for alimony, and August 14, 1975, when the Ala- bama court entered judgment by default against him in the divorce case. 69a The plaintiff moved from Alabama in July 1957 be- cause he had entered the U.S. Air Force and had been assigned to Warner Robins, Georgia. He and Patricia Kay Morton and their older son, who was only a few months old at the time, moved to Georgia in July 1957; and they lived there together as a family until 1960. When the plaintiff entered the Air Force and moved from Alabama to Georgia, he intended never to return to Alabama again to live. On the other hand, the plain- tiff did not have any intention at the time of making Georgia his permanent home. It was the plaintiff’s in- tention at that time to establish a domicile in Florida, and eventually to retire to Florida at the end of his mili- tary service. The plaintiff subsequently made efforts to obtain Air Force assignments to bases in Florida, so that he could purchase a home there and establish his domicile in Florida, but his efforts in that direction were unsuccessful. The plaintiff never became a resident of Florida; and, therefore, despite his intention, he never became a domiciliary of that State because the essential element of residence in fact was lacking. Pursuant to military assignments which the plaintiff received from the Air Force, he and his family moved to, and lived together in: Ohio from August 1960 to June 1961; in Georgia again from June 1961 to June 1963; in the Philippine Islands from June 1963 to June 1965; and in New York from June 1965 to June 1968. The plaintiff was assigned to military duty in Viet- nam in June of 1968, and he served there until June of 1969. While the plaintiff was serving in Vietnam, Pa- tricia Kay Morton and the two Morton children lived in St. Petersburg, Florida. When the plaintiff returned to the United States from Vietnam in 1969, he and Patricia Kay Morton bought their first home in Loudoun County, Virginia. They lived together there until Patricia Kay Morton left the plaintiff in September 1973 and moved back to Alabama, taking the Morton children with her. The plaintiff con- 70a tinued to live in the Virginia house until May of 1974, when he moved to Alaska. Shortly before leaving for Alaska, the plaintiff entered into a contract for the sale of the Virginia house. It was Patricia Kay Morton’s refusal to sign the deed convey- ing the Virginia house to the purchasers that led to the Virginia litigation, previously mentioned in the opinion, which the plaintiff instituted against Patricia Kay Mor- ton for specific performance of the separation agree- ment dated September 15, 1973. There is nothing in the eviderice to indicate that, dur- ing the various periods when the lini was living in Georgia (twice), in Ohio, in the Philippine Islands, in New York, in Vietnam, and in Virginia, the plaintiff ever intended to make any of these places his home. Consequently, as the essential element of intention was lacking, the plaintiff did not establish a new domicile in any of the localities just named. In view of this, It must necessarily be concluded that Alabama continued to be the State of the plaintiff’s domicile despite his intention, on leaving Alabama in 1957, never to return to that State to live. As previously stated, once domicile is ac- quired in a locality by an individual, it continues until a new one is acquired. Desmare v. United States, supra, 93 U.S. at 610. The plaintiff moved from Virginia to Alaska in May 1974 pursuant to a new Air Force assignment. Previ- ously, in 1972 or earlier, the plaintiff had visited Alaska; and when he first saw that State, he changed his mind about establishing a domicile in Florida, because he knew that he wanted to make his permanent home in Alaska. As early as 1972, the plaintiff orally asked the Air Force for an assignment to Alaska, but he did not re- ceive such an assignment at that time. In 1973, he again asked for an assignment to Alaska; and in accordance with this request, he received an assignment to Anchor- age, Alaska, as of May 1974. 7la Wher the plaintiff moved to Alaska in May 1974, it was his intention to purchase a home in Alaska and to establish a domicile in that State. He made his inten- tion known at the time to associates. On June 1, 1974, shortly after the plaintiff arrived in Alaska, he entered into a contract to purchase a home for himself in Anchorage, Alaska.' The plaintiff con- tinued to live in Alaska until 1977, when the Air Force transferred him to Andrews Air Force Base, Maryland. A change in domicile requires physical presence at the new location, plus an intention on the part of the indi- vidual to make the new location his or her home, and the absence of any intention to have a home at a former domicile. Stamer v. United States, 148 Ct. Cl. 482, 490 (1960) ; cf. Holmes v. Sopuch, 639 F.2d 431, 433 (8th Cir. 1981). When these elements concur, the change in domicile is instantaneous. Spurgeon v. Mission State Bank, 151 F.2d 702, 705-06 (8th Cir.), cert. denied, 327 U.S. 782 (1945). With respect to the plaintiff, the essential elements for acquiring a new domicile concurred when the plaintiff arrived in Alaska during the month of May 1974. From then until 1977, the plaintiff was an actual resident of Alaska, it was his intention to make Alaska his home, and he lacked any intention to have a home at a former domicile. Accordingly, it necessarily follows that the plaintiff was a domiciliary of Alaska, and not of Ala- bama, during the 1974-75 period when the divorce pro- ceeding against him in Alabama was in progress. Before concluding this part of the opinion, comments should be made on several points mentioned by the de- fendant in its brief as allegedly showing that the plain- tiff was still a domiciliary of Alabama while the divorce proceeding against him was still in progress. 1It later became impossible for the plaintiff to consummate this contract because of financial difficulties attributable to the refusal of Patricia Kay Morton to sign the deed conveying the Virginia house to the purchasers. 72a 1. The defendant calls attention to the fact that the plaintiff, on entering the military service in 1957, listed Birmingham, Alabama, as his “Home of Record.” In military parlance, the term “Home of Record” des- ignates the State from which a member enters the mili- tary service. It is used for the purpose of fixing travel and transportation allowances. The “Home of Record” is not necessarily a member’s State of legal residence or domicile. The terms “legal residence” and “domicile” are used in the military service interchangeably to denote the place where a member has his or her permanent home, and to which, whenever the member is absent, he or she has the intention of returning. As indicated earlier in the opinion, after the plaintiff left Alabama in 1957, he never had any intention of returning to Alabama to live. 2. The defendant refers to the supposed listing by the plaintiff “of Alabama as his legal residence for tax pur- poses from 1965 to April 15, 1976 * * *.” Actually, it was the Air Force—and not the plain- tiff—that listed Alabama as the plaintiff’s legal residence for the payment of state income taxes. This was done without the plaintiff’s consent and without checking with the plaintiff. Upon learning of this in June 1974, the plaintiff asked the Air Force Finance Office to correct the error by showing Alaska as the State to which state income taxes would be paid. The requested correction was not made, however, until April of 1976, after the plaintiff had been to the Finance Office three separate times and had, on three occasions, submitted a form to effect the change. 8. The defendant relies on evidence showing that the plaintiff paid state income taxes to Alabama for 1973 and 1974. In 1973, when the plaintiff and Patricia Kay Morton separated, the plaintiff agreed to have Patricia Kay Morton’s household goods moved to Alabama as a part of his military household goods move. It was his helief 73a that in order to do this, it was necessary that he file an Alabama income tax return for the year 1973; and, accordingly, in 1974 the plaintiff and Patricia Kay Mor- ton filed a joint income tax return in Alabama for the year 1973. The Mortons also filed a state income tax return in Virginia for the year 1973, as they were both residents of that State for the greater part of the year and the plaintiff was a Virginia resident for the entire year. The plaintiff also filed an income tax return in Ala- bama for the year 1974, as stated by the defendant. In that year, the plaintiff and Patricia Kay Morton were litigating in the Circuit Court of Loudoun County, Vir- ginia, over the separation agreement of September 15, 1973, but they were still married. Patricia Kay Morton was employed in Alabama and receiving income in that State, while the plaintiff’s 1974 income was received par- tially in Virginia and partially in Alaska. The ultimate outcome of the Virginia litigation was unknown. The plaintiff reasoned that if the Virginia court should set aside the separation agreement and he lost the tax break of a unitary award tax deduction, Patricia Kay Morton might agree to amend their separate income tax returns and to file income tax returns for 1974 jointly with the plaintiff, because they were still married and they would both benefit from such a joint filing. This did not hap- pen, however. The evidence shows that the plaintiff’s actions in filing state income tax returns in Alabama for 1973 and 1974 were attributable to the exigencies of the situation in which he found himself due to the breakup of his mar- riage, and did not reflect any intention to make his home again in Alabama. 4. The defendant asserts that sometime after moving to Alaska, the plaintiff “expressed his intention to leave Alaska and again reside in Virginia * * *.” This con- tention is based on a letter which plaintiff’s counsel in the Virginia litigation wrote to him on December 17, 74a 1975, concerning (among other things) plaintiff’s house in Virginia, which had not yet been sold and was in- volved in the Virginia litigation. Plaintiff’s counsel made the following statement (among others) in the letter: * * * The last correspondence I had from you indicated that you were returning to the Washing- ton area and wanted to live in the house yourself. You have an absolute right to do that. In fact, I was under the impression that you would have long since been back here. This statement by plaintiff’s counsel does not provide any support for the defendant’s contention that the plain- tiff was a domiciliary of Alabama during the divorce pro- ceeding in that State. 5. The defendant states in its brief that the plaintiff did not register to vote in Alaska until 1974 (he did not move to Alaska until 1974), and that he did not pay state income taxes in Alaska for any year earlier than 1975. The matter of the plaintiff’s state income tax re- turns has already been discussed in item 3. 6. Finally, the defendant says in its brief that “plain- tiff conveyed to his attorney the impression that he was still a domicile [sic] of Alabama as late as August 1976.” This is based on a letter which plaintiff’s counsel in the Virginia litigation wrote to the plaintiff on August 18, 1976. This letter reflects the attorney’s view that the plaintiff was still a legal resident of Alabama and should change his legal place of residence. There is nothing to indicate, however, that the plaintiff himself had ‘“con- veyed” such an impression to his counsel, or that the latter had carefully researched the question of the plain- tiff’s domicile. In any event, the plaintiff is not bound by an opinion on the matter of his domicile expressed by a Virginia attorney in August 1976. None of the points made by defendant in its brief war- rants any change in the opinion previously expressed 75a that the plaintiff was a domicilary of Alaska, and not of Alabama, when the divorce proceeding against him in Alabama was in progress. The “Minimum Contacts” Issue The defendant argues that, even if Colonel Morton was not a domiciliary of Alabama at the time when the di- vorce proceeding against him was in progress, and al- though he was not served with process in Alabama, the Alabama court nevertheless had jurisdiction to enter judgment against Colonel Morton for child support and alimony. In making this argument, the defendant relies on the “minimum contacts” standard originally announced by the Supreme Court in Jnternational Shoe Company Vv. Washington, 326 U.S. 310 (1945). In that case, the Court said (at 316) that “due process requires only that in order to subject a defendant to a judgment in per- sonam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “tradi- tional notions of fair play and substantial justice’” (cita- tions omitted). The Court later held in Shaffer v. Heitner, 483 U.S. 186 (1977), that the “minimum contacts” standard should be applied also to state court actions in rem, in- volving the property interests of nonresident defendants not served personally within a State. The Court made the sweeping statement (at 212) that “all assertions of state- court jurisdiction must be evaluated according to the standards set forth in /nternational Shoe and its prog- eny” (footnote omitted; emphasis added to “all’’). Thus, the use of the “minimum contacts” standard in determining whether the Alabama court had jurisdiction to enter against the nonresident Colonel Morton an award of $500 per month for alimony and child support does not depend on whether the Alabama proceeding, insofar as Patricia Kay Morton sought alimony and child support, was an action in personam or an action in rem or quasi 76a in rem (on the theory that Colonel Morton’s salary was located in Alabama). It seems to be clear, however, that the obligation of the Air Force to pay Colonel Morton for his military service was in the nature of a debt owed to Colonel Morton; and that the property interest in the debt belonged to Colonel Morton as creditor and followed his domicile, which was Alaska at the times involved in this litigation, because “[dJjebts can have no locality separate from the parties to whom they are due.” State Tax on Foreign-held Bonds, 15 Wall. 300, 320 (1872). Consequently, all aspects of the Alabama proceeding con- stituted an action in personam. Obviously, the plaintiff’s contacts with the State of Alabama during the first 23 years of his life were vastly more than “minimum contacts.” He was born in Ala- bama; he resided there continuously from the time of his birth until July 1957; he received his education in Ala- bama, through the college level; he was married in Ala- bama; and his first child was born in Alabama. How- ever, it would offend “traditional notions of fair play and substantial justice” if the plaintiff’s contacts with Alabama prior to July 1957 were to be regarded as nec- essarily conferring jurisdiction on the Alabama courts to enter a money judgment against him some 18 years later, when the plaintiff was a domiciliary and actual resident of Alaska, was not served personally within the terri- torial limits of Alabama, and did not do anything to sub- ject himself to the jurisdiction of the Alabama court. The circumstance that the plaintiff’s minor children were living in Alabama during the 1974-75 period with his consent and he was providing financial support for the children was not sufficient to confer on the Alabama court jurisdiction to enter a money judgment against Colonel Morton for alimony and child support on the “minimum contacts” theory. Kulko v. Superior Court of California, 486 U.S. 84 (1978). Colonel Morton’s contacts with Alabama to which some significance might be attached were: his action in filing, 77a with Patricia Kay Morton, a joint income tax return in Alabama for the year 1973; and his action in filing an individual income tax return in Alabama for the year 1974. The reasons for these actions by Colonel Morton have already been discussed in another part of the opin- ion. The joint return for 1973 was filed because Colonel Morton believed that it was necessary that this be done in order that Patricia Kay Morton’s household goods might properly be moved from Virginia to Alabama as part of the plaintiff's military household goods move. The individual return for 1974 was filed because Colonel Morton and Patricia Kay Morton were still married in 1974, she had earned income in Alabama and he had earned income in Virginia and Alaska during that year, and Colonel Morton anticipated that it might later be advisable (depending on the outcome of the then-pending litigation in Virginia) for him and Patricia Kay Morton to arnend their separate income tax returns for 1974 and file joint returns. Also, Colonel Morton’s request to the Air Force that his pay records be corrected to show Alaska, rather than Alabama, as the State to which his state income taxes were payable had not yet been hon- ored. The facts concerning the Alabama income tax returns for 1973 and 1974 show that it was not Colonel Morton’s purpose, in filing the returns in Alabama, to derive any benefit from the State of Alabama. In order to justify a determination in the present case that the Alabama court had jurisdiction to enter judg- ment against Colonel Morton for alimony and child sup- port under the “minimum contacts” theory, it would be necessary that the evidence in this case show acts by which Colonel Morton purposefully availed himself of the privilege of conducting activities within Alabama, thus invoking the benefits and protection of its laws. Hanson v. Denckla, 357 U.S. 285, 258 (1958). Such evidence is lacking. 78a It is my opinion, therefore, that the Alabama court did not have jurisdiction, under the “minimum contacts” standard, to enter a money judgment for child support and alimony against Colonel Morton in the divorce case. The Legal Process Issue The defendant, correctly stating that the writs of gar- nishment involved in the present case were on the regular form used by the Alabama courts, argues that the Gov- ernment is therefore insulated against liability by sub- section (f) of the garnishment statute (42 U.S.C. § 659, as amended by Pub. L. 95-30, § 501, 91 Stat. 157). Sub- section (f) provides as follows: (f) Neither the United States, any disbursing officer, nor governmental entity shall be liable with respect to any payment made from moneys due or payable from the United States to any individual pursuant to legal process regular on its face, if such payment is made in accordance with this section [659] and the regulations issued to carry out this section. The defendant, in arguing that subsection (f) is dis- positive of the present case, relies mainly on Overman Vv. United States, 563 F.2d 1287 (8th Cir. 1977). In that case, a couple named Overman were divorced in Tennes- see, and Mr. Overman was ordered by the Tennessee court to make periodic alimony and child support pay- ments to Mrs. Overman. Mr. Overman later moved to Missouri, where he was employed by the Veterans Ad- minstration. Mr. Overman fell behind on the support ob- ligation, and Mrs, Overman secured a writ of garnish- ment on his salary and served it by mail on Mr. Over- man, on the United States, and on the disbursing officer of the Veterans Administration. Mr. Overman then sought to enjoin the disbursing officer from honoring the writ of garnishment, on the ground that the anaeeving Tennessee divorce decree had been obtained ugh 79a fraud. In upholding the dismissat of the suit by the court below, the Court of Appeals said (at 1292-98) : * * * [Wle will not readily infer that Congress intended to permit federal agencies to be dragged in as defendants by any federal employee * * * who, unhappy with a prior state adjudication, seeks to contest it by suing the Government over wage gar- nishment rather than challenging the divorce decree in an appropriate state forum. To have federal courts adjudicating such disputes, where the only federal connection is garnishment of government wages, would truly be a case of the tail wagging the dog. *e The Overman case is readily distinguishable from the case that is now before this court. There was no con- tention in the Overman case that the Tennessee court which ordered Mr. Overman to make alimony and child support payments to Mrs. Overman lacked jurisdiction over the person of Mr. Overman, but, rather, that fraud had been involved in the divorce proceeding before the Tennessee court. In the present case, as pointed out in earlier parts of this opinion, the Alabama court which ordered Colonel Morton to make alimony and child sup- port payments to Patricia Kay Morton did not have ju- risdiction over the person of Colonel Morton. It has long been the constitutional rule that a court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant. Vanderbilt v. Vanderbilt, 354 U.S. 416, 418 (1957). As the Alabama court did not have jurisdiction over the per- son of Colonel Morton, it was without jurisdiction to ad- judicate Patricia Kay Morton’s claim against him for alimony and child support; and, therefore, the portion of the Alabama court’s decree ordering Colonel Morton to make alimony and child support payments to Patricia Kay Morton was void for lack of jurisdiction. 80a The writs of garnishment involved in the present case were issued as incidents to the decree of the Alabama court. As the decree of the Alabama court was void for lack of jurisdiction insofar as it ordered Colonel Morton to make alimony and child support payments to Patricia Kay Morton, the writs of garnishment must necessarily fall along with the portion of the decree on which they were based. Laborde v. Ubarri, 214 U.S. 1738, 174 (1909). Furthermore, it will be noted that subsection (f) of the garnishment statute insulates the Government from lia- vility only if funds are deducted from the pay of gov- ernment personnel and paid out pursuant to a writ of garnishment that qualifies as “legal process regular on its face” and if “such payment is made in accordance. with * * * the regulations issued to carry out this sec- tion.” The pertinent regulations are found in Part 581 of Title 5, Code of Federal Regulations. Section 581.102 (f) of Title 5, CFR, defines “legal process” in part as fol- lows: (f) “Legal process” means any writ, order, sum- mons, or other similar process in the nature of gar- nishment, * * * which— (1) Is issued by: (i) A court of competent jurisdiction, including Indian tribal courts, within any State, territory, or possession of the United States, or the District of Columbia * * *. [Emphasis supplied. ] As the Alabama court, in purporting to order Colonel Morton to make alimony and child support payments to Patricia Kay Morton, was not a “court of competent ju- risdiction” because it had not acquired jurisdiction over the person of Colonel Morton, the void ancillary writs of garnishment which the Air Force Finance Office honored in this case did not constitute the sort of “legal process” 8la that would have insulated the Government against lia- bility. Conclusion For the reasons previously outlined, it is concluded that the Air Force Finance Office acted arbitrarily and il- legally when it ignored the plaintiff’s protest that the Alabama court did not have jurisdiction to enter a money judgment against him for alimony and child support, made deductions from the plaintiff's pay, and paid the money over to the Circuit Court for the Tenth Judicial Circuit of Alabama pursuant to writs of garnishment that were void because they were ancillary to a court de- cree which was void for lack of jurisdiction insofar as it ordered Colonel Morton to make alimony and child sup- port payments to Patricia Kay Morton. The plaintiff is entitled to recover the money that was illegally deducted from his pay pursuant to the void writs of garnishment. 82a FINDINGS OF FACT 1. (a) Allan Wayne Morton, a colonel in the Air Force and usually referred to hereafter in the findings as “the plaintiff’ or as “Colonel Morton,” was born in Birmingham, Alabama, on April 15, 1984. He resided in Birmingham until he went away to college. (b) At the time of the filing of the petition in this case, the plaintiff was on active duty in the U.S. Air Force. 2. The plaintiff received a bachelor’s degree from the University of Alabama in 1957, and a master’s degree from Georgia Tech in 1963. 8. (a) The plaintiff married Patricia Kay Morton in Birmingham, Alabama, in 1954. (b) The plaintiff and Patricia K. Morton had two children, Allan L. Morton, born February 7, 1957, and Brian D. Morton, born November 17, 1960. (c) Allan L. Morton married in November 1976. (d) Brian D. Morton became a member of the U.S. Air Force on January 3, 1979. 4. The plaintiff and Patricia Kay Morton maintained their marital residence in the State of Alabama, first in Tuscaloosa and later in Birmingham, from the time of their marriage in 1954 until July of 1957. 5. The plaintiff entered the U.S. Air Force from the State of Alabama in July 1957. At that time, he and Patricia Kay Morton and their first child, then only a few months old, moved to Warner Robins, Georgia, where they lived together until 1960. 6. (a) Upon entering the military service, the plain- tiff gave his “Home of Record” as Birmingham, Ala- bama. No change in this designation had been made as of October 11, 1977. (b) In military parlance, the term “Home of Rec- ord” designates the State from which a member enters the military service, and it is used for the purpose of fixing travel and transportation allowances. The “Home SA 83a of Record” is not necessarily a member’s State of legal residence or domicile, (c) “Legal residence” and “domicile” are used in the military service interchangeably to denote the place where a member has his or her permanent home and to which, whenever the member is absent, he or she has the intention of returning. (d) The plaintiff did not, at any time during his military service, designate the State of Alabama as his legal residence or domicile. 7. (a) When the plaintiff entered the Air Force and moved from the State of Alabama, he intended never to return to Alabama again to live. It was the plaintiff’s intention at that time to make Florida his permanent home, and eventually to retire to Florida. (b) Subsequently, the plaintiff made efforts in 1965 and 1968 to obtain from the Air Force assignments to bases in Florida, so that he could purchase a perma- nent home there and establish his domicile in Florida. The plaintiff’s efforts in that direction were unsuccessful, however, and he himself never became an actual! resident of the State of Florida. 8. Pursuant to military assignments which the plain- tiff received from the Air Force, he and Patricia Kay Morton moved to, and lived together in, the following places during the period from August 1960 until June of 1968: (a) In Dayton, Ohio, from August 1960 to June 1961. (b) In Smyrna, Georgia, from June 1961 to June 1963. (c) In the Philippine Islands from June 19638 to June 1965. (d) In Niagara Falls, New York, from June 1965 to June 1968. i 9. (a) The plaintiff was assigned to military duty in Vietnam in June 1968; and he served there until June 1969. J 84a (b) While the plaintiff was serving in Vietnam, Patricia Kay Morton and the Morton children lived in St. Petersburg, Florida. 10. When the plaintiff returned to the United States from Vietnam in 1969, he and Patricia Kay Morton bought their first home in Loudoun County, Virginia. They lived together there until Patricia Kay Morton left the plaintiff in 1973, under circumstances that will be described in subsequent findings. 11. (a) In August of 1973, the plaintiff was notified by the Air Force that his next military assignment would be in the State of Alaska. Patricia Kay Morton wished to return to Alabama, and she was unwilling to accom- pany the plaintiff to Alaska. The refusal of Patricia Kay Morton to accompany the plaintiff to Alaska was one of the important factors which caused Patricia Kay Morton and the plaintiff to separate in September of 1973. (b) On September 15, 1973, in anticipation of their imminent separation, the plaintiff and Patricia Kay Morton signed a document entitled “Separation Agree- ment.” This document provided in part as follows: (1) The house in Loudou~ County, Virginia, was to be the sole property of the plaintiff, who was to be responsible for paying off the mortgage; and the house was to be sold at the earliest feasible date by the plain- tiff. (2) A 1971 Volkswagen was to be the prop- erty of Patricia Kay Morton. (8) A 1969 Volkswagen was to be the prop- erty of the plaintiff. (4) Patricia Kay Morton was to have posses- sion of all furniture and household goods, except one bed- room suite, one dining set, a rattan set, and the plain- tiff’s personal tools and professional books. (5) Patricia Kay Morton was to have the sole custody and control of the two minor sons, with the plaintiff to have reasonable visitation rights. 85a (6) The plaintiff was to pay Patricia Kay Morton as separate maintenance payments that were to include support for both children, the sum of $500 per month beginning on October 5, 1973, and continuing for 380 months through March 5, 1976, and thereafter the sum of $200 per month beginning on April 5, 1976, and continuing for 33 months through December 5, 1978. (ec) The separation agreement also contained the following provision (among others) : * * * Any decree entered in any action for divorce which may be requested by either party shall be agreed to by the other party and shall be consistent with the terms of this agreement and the court is requested to include this agreement in the decree. 12. (a) On or about September 16, 1973, Patricia Kay Morton took the Morton children and moved to Alabama to live. (b) The plaintiff continued to live in the Loudoun County house until he moved to Alaska in accordance with the Air Force assignment. (c) After the plaintiff and Patricia Kay Morton separated, household goods for the use of Patricia Kay Morton and the Morton children were moved to Alabama in 1978 as part of the plaintiff’s military household goods moving allowance. (d) The plaintiff and Patricia Kay Morton have not lived together as man and wife since their separation in September 1973. 13. (a) In 1972 or earlier, the plaintiff had visited Alaska. When he first saw Alaska, the plaintiff changed his mind about establishing a domicile in Florida because he knew he wanted to make his permanent home in Alaska. As early as 1972, he orally asked the Air Force for an assignment to Alaska, but he did not receive such an assignment at that time. In 1973, he again asked for an assignment to Alaska, and on this occasion he received an assignment to Anchorage, Alaska, as of May 1974. 86a (b) The plaintiff left the former marital home in Loudoun County, Virginia, and moved to Alaska in May of 1974, pursuant to the Air Force assignment previously mentioned. (c) In connection with his anticiapted move to Alaska, the plaintiff entered into a contract for the sale of the house in Loudoun County, Virginia, which he and Patricia Kay Morton had occupied as a married couple. However, shortly before the plaintiff left for Alaska, Patricia Kay Morton refused to sign the deed conveying the Loudoun County house to the purchasers with whom the plaintiff had contracted to sell the property. Up un- til that time, Patricia Kay Morton and the plaintiff had abided by the terms of the separation agreement dated September 15, 1973. 14. (a) When the plaintiff moved to Alaska in May of 1974, it was his intention to purchase a permanent home in Alaska and to establish a domicile in Alaska. He made his intention known at the time to associates. (b) The plaintiff, an engineer who preferred out- door work, thought that Alaska would provide for him great opportunities for employment after his retirement from the Air Force. Alaska has the Alaska Pipeline, an abundance of natural resources, and booming building and expansion jobs for engineers, in addition to being the most beautiful place, in the plaintiff’s opinion, he had ever seen. (c) In 1974, the plaintiff registered to vote in Alaska. 15. (a) On June 1, 1974, shortly after the plaintiff arrived in Alaska, he entered into a contract to purchase a permanent home for himself in Anchorage, Alaska, from Turner Construction Company, for a price of $62,100. It was the plaintiff’s intention to finance this purchase partially with the proceeds from the sale of the house in Loudoun County, Virginia. (b) The plaintiff was unable to consummate the contract referred to in paragraph (a) of this finding be- cause of financial difficulties attributable to the refusal of 87a Patricia Kay Morton to sign the deed conveying the house in Loudoun County, Virginia, to the purchasers with whom the plaintiff had contracted for the sale of that house before moving to Alaska. 16. The plaintiff lived on the Air Force base to which he was assigned during his assignment in Alaska. 17. In June 1974, the plaintiff instructed the Air Force Finance Office to change his records to indicate that Alaska was his home State. This was done long be- fore there was any statute commonly known as the Fed- eral Garnishment of Wages Statute (42 U.S.C. § 659 (1976), as amended by Pub. L. 95-30, § 501, 91 Stat. 157). 18. (a) On October 16, 1975, the plaintiff married Ronnette Dreves in Anchorage, Alaska. (b) The plaintiff and his second wife have two children: Keri L. Morton, born June 19, 1976; and Thomas Christopher Morton, born October 26, 1978. 19. The plaintiff lived in Alaska until 1977, when he was transferred to Andrews Air Force Base, Maryland. 20. (a) Because of Patricia Kay Morton’s refusal to sign the deed conveying the house in Loudoun County, Virginia, to the purchasers with whom the plaintiff had contracted to sell the premises (see findings 13(c) and 15(b)), the plaintiff in July 1974, acting through coun- sel, filed a suit in the Circuit Court of Loudoun County, Virginia, against Patricia Kay Morton for specific per- formance of the separation agreement dated September 15, 1978. (b) Patricia Kay Morton filed an answer; and in a prayer for affirmative relief, she asked that the separa- tion agreement of Sptember 15, 1973, be rescinded and declared null and void. (c) Before trial, Patricia Kay Morton filed a mo- tion for leave to depose the plaintiff as an absent wit- ness. In passing on this motion, the Circuit Court of Loudoun County determined that the plaintiff, a member of the Air Force on active duty, was making his home in Alaska. 88a (d) A trial was held in the Loudoun County pro- ceeding on July 22, 1975. The evidence at the trial showed (among other things) that the plaintiff had paid Patricia Kay Morton the sum of $500 per month under the separation agreement, without having missed a pay- ment. (e) In a decree which the Circuit Court of Loudoun County entered on March 25, 1976, the separa- tion agreement of September 15, 1973, was set aside, cancelled, and annulled. (f) The plaintiff gave notice of appeal to the Su- preme Court of Virginia from the March 25, 1976, de- cree of the Circuit Court of Loudoun County. (g) During the pendency of the appeal, the plain- tiff and Patricia Kay Morton settled all matters involved in the Virginia case, including the setting aside of the separation agreement. Under the settlement, Patricia Kay Morton was to receive $12,500 in cash from the sale of the Loudoun County house where the Mortons had maintained their marital residence from 1969 to Septem- ber 1973, and she was permitted to keep all the personal property (furniture, china, silver, crystal, other valua- bles collected by the Mortons over the years) and the automobile which she had taken with her when she moved to Alabama from Virginia in September 1973. (h) In view of the settlement between the plain- tiff and Patricia Kay Morton, the Circuit Court of Loudoun County entered a final decree on June 10, 1976, dismissing the cause. 21. (a) In accordance with the settlement mentioned in finding 20, the plaintiff sold the house in Loudoun County, Virginia, and paid Patricia Kay Morton the sum of $12,500 from the proceeds of the sale. (b) In addition to paying Patricia Kay Morton the sum of $12,500, the plaintiff voluntarily continued to make child support payments, as he felt that he was un- der a moral obligation to do so. The child support pay- ments were at the rate of $500 per month until the older 89a child became 18 years of age, and then at the reduced rate of $250 a month for the younger child until Patricia Kay Morton began garnishing the plaintiff's pay under circumstances described in subsequent findings. 22. (a) On August 28, 1974, Patricia Kay Morton filed suit in the Circuit Court for the Tenth Judicial Cir- cuit of Alabama against Colonel Morton for divorce, for the custody of the two minor children, together with sup- port and maintenance for the children, and for alimony. (b) Among the papers filed by Patricia Kay Morton in connection with the institution of the suit men- tioned in paragraph (a) of this finding was a sworn affidavit executed by Patricia Kay Morton to the effect that Colonel Morton was at that time a nonresident of Alabama. (c) Suit papers in the Alabama divorce proceed- ing were sent by registered mail to Colonel Morton in Alaska. He received them on September 17, 1974. No personal service was made on Colonel Morton at any time or at any place in connection with the Alabama divorce suit. (d) Upon receiving the suit papers in the Ala- bama divorce proceeding, Colonel Morton promptly went to the Judge Advocate General’s Office at Elmendorf Air Force Base, Alaska, and consulted an attorney in that office. The attorney advised Colonel Morton that service by mail was not sufficient to support a money judgment against him. (e) Colonel Morton did not make an appearance of any kind in the Alabama divorce suit. (f) There was no affidavit filed among the Ala- bama suit papers concerning Colonel Morton’s military status, and no guardian ad litem was appointed for him, in accordance with section 200 of the Soldiers’ and Sailors’ Civil Relief Act (50 U.S.C. App. § 520). (g) The Alabama suit was dismissed for lack of prosecution on April 2, 1975. The dismissal was set aside a few days later, on April 9, 1975, without notice having been given to Colonel Morton. 90a (h) Colonel Morton having failed, within the time permitted, to plead or otherwise defend in the suit, judgment by default was entered against him on Au- gust 14, 1975, by the Circuit Court for the Tenth Judi- cial Circuit of Alabama. The judgment granted Patricia Kay Morton a divorce from Colonel Morton, it awarded to her the custody of the two children, and it ordered Colonel Morton to pay to Patricia Kay Morton the sum of $500 each month “as alimony for * * * [Patricia Kay Morton] and partial support and maintenance of the * * * minor children.” (i) The separation agreement of September 15, 1973, between Colonel Morton and Patricia Kay Morton was not introduced before the court or made a part of the record in the Alabama divorce proceeding. (j) There is no evidence that Colonel Morton com- mitted any act against the marriage in Alabama. The marital disagreements out of which the divorce arose oc- curred in Virginia. Patricia Kay Morton left Colonel Morton in Virginia. 23. (a) On December 27, 1976, the Air Force Finance Office received by certified mail a writ of garnishment which had been issued by the Register of the Circuit Court for the Tenth Judicial Circuit of Alabama and which sought to garnish pay of the plaintiff in the amount of $4,100. The writ of garnishment was issued on the regular form used by the State of Alabama. (b) The writ of garnishment was accompanied by a copy of the judgment that was entered in the divorce proceeding referred to in finding 22. The judgment re- cited that the present plaintiff was to pay $500 per month to Patricia Kay Morton “as alimony for * * * [Patricia Kay Morton] and partial support and maintenance for the * * * minor children.’”’ Accompanying the writ was an affidavit executed by Patricia Kay Morton stating that the sum of $4,100 was due and owing “for alimony and child support” under the judgment dated August 14, 1975. 9la (c) The Air Force notified the plaintiff regarding the receipt of the writ of garnishment. The plaintiff thereupon sought advice from an attorney in the Judge Advocate General’s Office at Elmendorf Air Force Base, Alaska. The attorney assured the plaintiff that Patricia Kay Morton could not legally garnish his pay on the basis of the service of process by mail from the State of Ala- bama. (d) On December 30, 1976, the plaintiff presented to the Air Force Finance Office arguments to the effect that he had paid all his obligations to Patricia Kay Morton, that he was never properly served or notified of the Alabama divorce proceeding, that he was neither domiciled nor a resident of the State of Alabama, and that the decree of the Alabama court ordering him to pay alimony and child support was void for lack of juris- diction. (e) On January 11, 1977, the Air Force Finance Office filed an answer in the Circuit Court for the Tenth Judicial Circuit of Alabama, confessing indebtedness of $4,100. This amount was subsequently deducted from the plaintiff’s pay and was paid over to the clerk of the cir- cuit court. | (f) It is inferred, and found, that the Finance Office did not seek advice from the Judge Advocate Gen- eral’s Office before taking the action referred to in para- graph (e) of this finding. 24. (a) Subsequently, other similar writs of garnish- ment issued by the Circuit Court for the Tenth Judicial Circuit of Alabama were served on the Air Force Fi- nance Office, which honored the writs deducted amounts from the plaintiff’s pay, and paid over such amounts to the clerk of the circuit court. (b) The evidence in the record does not show whether—or, if so, when—the plaintiff was notified re- garding these writs of garnishment. 25. The total amount which the Air Force Finance Office deducted from the plaintiff's pay and paid over to 92a the clerk of the Circuit Court of the Tenth Judicial Cir- cuit of Alabama pursuant te the writs of garnishment referred to in findings 23 and 24 is not shown by the evidence in the present record. 26. (a) All the writs of garnishment were served on, and honored by the Air Force Finance Office after Allan L. Morton was past the age of 18 and was married. (b) Some of the plaintiff’s pay was garnished after Brian D. Morton was past the age of 18. 27. When the law was changed to require that a mili- tary service include in a member’s records the State wherein the member would be liable for state income taxes, the Air Force, without the plaintiff’s consent and without checking with him, inserted in his leave and earnings statements the State of Alabama (the place from which he had entered the service) as the State to which he would pay state income taxes. Upon learning of this in June 1974, the plaintiff went to the Air Force Finance Office and asked that this error be corrected by showing Alaska as the State to which state income taxes would be paid. The requested correction was not made, however, until April 1976, after the plaintiff had been to the Finance Office three separate times and had, on three occasions, submitted a form to effect the change. 28. (a) The plaintiff and Patricia Kay Morton did not file any state income tax returns in Alabama for the several years during the 1957-72 period because the plaintiff did not consider himself to be a domiciliary of Alabama. (b) In 1978, as indicated in finding 12(c), the plaintiff agreed to have Patricia Kay Morton’s household goods moved to Alabama as a part of his military house- hold move. It was his understanding that in order to do this, it was necessary that he file an Alabama in- come tax return for the year 1973; and, accordingly, in 1974 the plaintiff and Patricia Kay Morton filed a joint income tax return in Alabama for the year 1973. The Mortons also filed a state income tax return in Virginia 98a for the year 1973, as they were both residents of that State up until the middle of September 1973 and the plaintiff continued to reside there for the remainder of 1978. (c) The plaintiff filed an income tax return in Alabama for the year 1974. In that year, the plaintiff and Patricia Kay Morton were litigating in the Circuit Court of Loudoun County, Virginia, over the separation agreement of September 15, 1973, but they were still married. Patricia Kay Morton was employed in Ala- bama and receiving income in that State, while the plain- tiff’s 1974 income was received partially in Virginia and partially in Alaska. The ultimate outcome of the Vir- ginia litigation was unknown. The plaintiff reasoned that if the Virginia court should set aside the separation agreement and he lost the tax break of a unitary award tax deduction, Patricia Kay Morton might agree to amend their separate income tax returns and file income tax returns jointly with the plaintiff, because they were still married and they would both benefit by such joint filings. This did not happen, however. (d) The plaintiff filed state income tax returns in Alaska for 1975 and subsequent years. 29. (a) The plaintiff has never registered to vote, and has never voted, in Alabama. (b) The plaintiff registered to vote in Alaska in 1974, 30. The plaintiff has registered his automobiles in the States where he has been assigned by the Air Force. They have been registered in Georgia, the Philippine Is- lands, Virginia, Alaska, and Maryland. On one occasion, when the plaintiff was passing through Alabama and visited his sister in that State, he purchased an automo- bile in his sister’s home town and registered it in Ala- bama. The evidence does not disclose when the automo- bile was registered in Alabama. 31. In 1974 and 1975, during the pendency of the divorce proceeding instituted by Patricia Kay Morton 94a against Colonel Morton, the State of Alabama did not have a “long-arm” statute authorizing personal service on nonresidents for child custody, child support, or main- tenance and support. At that time, the Alabama rule permitting substituted service was limited to the termi- nation of the marital status, in the absence of the nec- essary “minimum contacts” required for the Alabama court to exercise personal jurisdiction over a nonresi- dent defendant. 82. On December 17, 1975, the plaintiff’s counsel in the Virginia litigation wrote a rather lengthy letter to the plaintiff in Alaska relative to several matters, in- cluding the expenses that had been incurred up to that time in connection with the Virginia litigation, the status of the Loudoun County, Virginia, house, and the decree that had been entered by the Circuit Court for the Tenth Judicial Circuit of Alabama in the divorce case by Pa- tricia Kay Morton against Colonel Morton. A paragraph of the letter dealing with the Loudoun County house in- cluded the following statement: * * * The last correspondence I had from you indicated that you were returning to the Washington area and wanted to live in the house yourself. You have an absolute right to do that. In fact, I was under the impression that you would have long since been back here. 33. On August 18, 1976, the plaintiff’s counsel in the Virginia litigation wrote a letter to the plaintiff in Alaska. This letter included the following paragraphs: The last time I checked the Alabama law they could not serve residents by registered mail or serve them by a service in another state. For service of process on a legal resident, the service had to be made within Alabama. However, legislatures are changing the law daily and going to the position that domiciliaries, “legal residents”, may be served by mail or by having a sheriff in another state serve 95a them personally. This would meet due process regu- lations under the “long-arm” statutes. So I strongly Suggest you change your legal place of residence or you might get the old alimony award from the first Mrs. Morton in Alabama perfected, notice of which could be given by mail. You can’t expect Alabama not to insist their original order was valid. The best proof of your having changed your domi- cile is by voting and of course paying taxes in the new domicile. CONCLUSION OF LAW Upon the findings of fact and the foregoing opinion, which are adopted by the court, the court concludes as a matter of law that the plaintiff is entitled to recover, and judgment is entered to that effect. The amount of the recovery will be determined in subsequent proceed- ings under Rule 131 (c). 96a UNITED STATES CLAIMS COURT No. 290-77 ALLAN WAYNE MORTON Vv. THE UNITED STATES ORDER Pursuant to the order of the United States Court of Appeals for the Federal Circuit, issued October 4, 1982, IT IS ORDERED that judgment is to be entered in accordance with the report, filed December 14, 1981 in this case, recommending a decision to the judges of the United States Court of Claims. /s/ Alex Kozinski ALEX KOZINSKI Chief Judge JUDGMENT Pursuant to the above and Rule 58, IT IS ORDERED AND ADJUDGED that judgment is entered this date in this case as provided above. Filed Oct. 8, 1982 /s/ Frank T. Peartree FRANK T. PEARTREE Clerk 97a UNITED STATES COURT OF APPEALS “FOR THE FEDERAL CIRCUIT IN THE MATTER OF CASES TRANSFERRED TO THIS COURT PURSUANT TO PUBLIC LAW 97-164, Sec. 403 Before MARKEY, Chief Judge, FRIEDMAN, RICH, DAVIS, BALDWIN, KASHIWA, BENNETT, MILLER, SMITH and NIES, Circuit Judges. ORDER The court having considered the matter of cases pend- ing in the Court of Claims and transferred to this court on 1 October 1982 pursuant to Public Law 97-164, Sec. 403, in each of which cases a decision and opinion had been recommended to the judges of the Court of Claims, IT IS HEREBY ORDERED: That the United States Claims Court enter and trans- mit to this court as soon as possible a judgment cor- responding to the decision recommended in each such case, which judgment will be deemed to be on appeal to this court. For THz CourRT /38/ Howard T. Markey HOWARD T. MARKEY Chief Judge 4 October 82 Date 98a APPENDIX D 1. 42 U.S.C. (Supp. V) 659 provides: (a) United States and District of Columbia to be subject to legal process Notwithstanding any other provision of law, ef- fective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, sub- division, or instrumentality thereof) to any indi- vidual, including members of the armed services, shall be subject, in like manner and to the same ex- tent as if the United States or the District of Co- lumbia were a private person, to legal process brought for the enforcement, against such individual of his legal obligations to provide child support or make alimony payments. . * * . o (f) Non-liability of United States, disbursing offi- cers, and governmental entities with respect to pay- ments Neither the United States, any disbursing officer, nor governmental entity shall be liable with respect to any payment made from moneys due or payable from the United States to any individual pursuant to legal process regular on its face, if such payment is made in accordance with this section and the regulations issued to carry out this section. 42 U.S.C. (Supp. V) 662(e) provides: (e) The term “legal process” means any writ, order, summons, or other similar process in the nature of garnishment, which— 99a (1) is issued by (A) a court of competent juris- diction within any State, territory, or possession of the United States (B) a court of competent juris- diction in any foreign country with which the United States has entered into an agreement which requires the United States to honor such process, or (C) an authorized official pursuant to an order of such a court of competent jurisdiction or pursuant to State or local law, and (2) is directed to, and the purpose of which is to compel, a governmental entity, which holds moneys which are otherwise payable to an individual, to make a payment from such moneys to another party in order to satisfy a legal obligation of such indi- vidual to provide child support or make alimony payments. . 5 C.F.R. 581.102(f) (amended 1983) provides: “Legal process” means any writ, order, summons, or other similar process in the nature of garnish- ment, which may include an attachment, writ of execution, or court ordered wage assignment, which— (1) Is issued by: (i) A court of competent jurisdiction, including Indian tribal courts, within any State, territory, or possession of the United States, or the District of Columbia; (ii) A court of competent jurisdiction in any for- eign country with which the United States has en- tered into an agreement which requires the United States to honor the process; or (iii) An authorized official pursuant to an order of a court of competent jurisdiction or pursuant to State or local law, and 100a (2) Is directed to, and the purpose of which is to compel, a governmental entity, to make a payment from moneys otherwise payable to an individual, to another party to satisfy a legal obligation of the individual to provide child support and/or make ali- mony payments, 5 C.F.R. 202(c) (amended 1983) provides: Where it does not appear from the face of the process that it has been brought to enforce the legal obligation(s) defined in § 581.102(d) and/or (e), the process must be accompanied by a certified copy of the court order establishing such legal obliga- tion(s). Where the State or local law provides for the is- suance of legal process without a support order, such other documentation establishing that it was brought to enforce legal obligation(s) defined in § 581.102 (d) and/or (e) must be submitted. 5 C.F.R. 302 (amended 1983) provides in part: (a) As soon as possible, but not later than fifteen (15) calendar days after the date of valid service of legal process, the agent designated to accept legal process shall send to the obligor, at his or her duty station or last known home address, written notice: (b) The governmental entity may provide the obligor with the following additional information: (1) Copies of any other documents submitted in support of the legal process; (2) That the United States does not represent the interests of the obligor in the pending legal proceed- Ings; (8) That the obligor may wish to consult legal counsel regarding defenses to the legal process that he or she may wish to assert.... 10la 5 C.F.R. 581.305 (amended 1983) provides in part: (a) The governmental entity shall comply with legal process, except where the process cannot be complied with because: (1) It does not, on its face, conform to the laws of the jurisdiction from which it was issued; (2) The legal process would require the withhold- ing of funds not deemed moneys due from, or pay- able by, the United States as remuneration for em- ployment; (3) The legal process is not brought to enforce legal obligation(s) for alimony and/or child sup- port; (4) It does not comply gwith the mandatory pro- visions of this part; (5) An order of a court of competent jurisdiction enjoining or suspending the operation of the legal process has been served on the governmental entity; or (6) Where notice is received that the obligor has appealed the underlying alimony and/or child sup- port order, payment of moneys subject to the legal process shall be suspended until the government en- tity is ordered by a court, or other authority, to re- sume payments. However, no suspension action shall be taken where the applicable law of the jurisdiction wherein the appeal is filed requires compliance with the legal process while an appeal is pending. (d) Neither the United States, any disbursing of- ficer, nor governmental entity shall be liable for any payment made from moneys due from, or payable by, the United States to any individual pursuant to legal process regular on its face, if such payment is made in accordance with this part. However, where a governmental entity negligently fails to comply with legal process, the United States shall be liable 102a for the amount that the governmental entity would have paid, if the legal process had been properly honored. 8. 48 Fed. Reg. 26279-26294 (1983) amended the pertinent provisions of §5 C.F.R. Pt. 581 (1983) as follows: 1. In § 581.102, paragraph (f) (1) (ii) is revised to read as follows: $ 581.102 Definitions. oT (1) eee (ii) A court of competent jurisdiction in any for- eign country with which the United States has en- tered into an agreement that requires the United States to honor such process; or o . 7 . o 9. In § 581.805, paragraph (a) (6) is revised and paragraph (f) is added to read as follows: $ 581.805 Honoring legal process. (a) eee (6) Where notice is received that the obligor has appealed either the legal process or the underlying alimony and/or child support order, payment of moneys subject to the legal process shall be sus- pended until the governmental entity is ordered by the court, or other authority, to resume payments. However, no suspension action shall be taken where the applicable law of the jurisdiction wherein the appeal is filed requires compliance with the legal process while an appeal is pending. Where the legal process has been issued by a court in the District of Columbia, a motion to quash shall be deemed equivalent to an appeal. * a * a * 108a (f) If a governmental entity receives legal process which, on its face, appears to conform to the laws of the jurisdiction from which it was issued, the entity shall not be required to ascertain whether the authority which issued the legal process had obtained personal jurisdiction over the obligor. 10da APPENDIX E UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 82-1858 BRUCE WARREN RUSH, APPELLANT v. U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT, ET AL., APPELLEES Appeal from the United States District Court for the District of Columbia Before: Mikva, Edwards and Scalia, Circuit Judges JUDGMENT This cause came on to be heard on the record on ap- peal from the United States District Court for the Dis- trict of Columbia, and was briefed and argued by coun- sel. The issues presented have been accorded full con- sideration by the court; they occasion no need for an opinion. See D.C. Cir. Rule 13(c). On consideration of the reasons set forth in the attached memorandum, it is ORDERED and ADJUDGED, by this Court, that the judgment of the District Court appealed from in this cause is hereby affirmed. It is FURTHER ORDERED, by this Court, sua sponte, that the clerk shall withhold issuance of the man- date herein until seven days after disposition of any 105a timely petition for rehearing. See D.C. Cir. Rule 14, as amended November 30, 1981 and June 15, 1982. PER CURIAM FoR THE COURT /s/ George A. Fisher GEORGE A. FISHER Clerk Filed: April 26, 1982 106a Rush v. U.S. Agency for International Development, No. 82-1853 (Filed April 26, 1983) MEMORANDUM Bruce Warren Rush appeals from the district court’s dismissal of his complaint against the United States Agency for International Development (AID) and its administrator. Rush, an AID employee, seeks to prevent AID from complying with a Florida garnishment order that requires the agency to withhold a portion of Rush’s salary. He also seeks a return of previously garnished monies. The garnishment was ordered by a Florida state court in 1979 and served on AID pursuant to 42 U.S.C. § 659 (Supp. IV 1980) after Rush failed to make child support payments required by the state court in an earlier divorce judgment. The support order grew out of a divorce action Rush brought in 1976. Rush alleges that the district court should not have accorded the Florida judgment and garnishment order full faith and credit because of various defects in the judgment. In particular, Rush alleges that the Florida judgment is void because, inter alia, the judge who en- tered judgment was not the same judge who heard the trial testimony, the underlying marriage on which the divorce decree was premised was invalid, the woman who contested the divorce was not his wife, and the child for whom the Florida court ordered support payments was not his offspring. Finally, Rush alleges that AID violated his constitutional rights by recognizing a judg- ment rendered by a court which lacked jurisdiction over him. Under the principle that the United States cannot be sued without its consent, sovereign immunity tradition- ally has prohibited the enforcement of garnishment or- ders directed at monies received from the government by federal employees. See Federal Housing Administra- tion v. Burr, 309 U.S. 242 (1940). Since the original enactment of the federal garnishment statute in 1975, however, this immunity has been subject to a limited 107a waiver encompassing garnishment orders, issued by courts of competent jurisdiction, that enforce alimony and child support obligations. 42 U.S.C. § 659(a) (Supp. IV 1980); see 5 C.F.R. §$§ 581.101-.501 (1983). At the same time, the liability of the United States, its agen- cies, and its officers for withholding or redirecting pay- ments under the statute is strictly limited if the gar- nishment is made pursuant to “legal process regular on its face” and in accordance with the statute and its im- plementing regulations. 42 U.S.C. § 659(f) (Supp. IV 1980). In the present case, Rush has not claimed that the garnishment order was faciaily invalid or that AID violated statutory requirements or applicable regulations. Thus, at least to the extent that Rush seeks reimburse- ment of funds previously garnished, he is barred by the statute from litigating those claims against AID or its administrator. To the extent that Rush seeks injunctive relief, most notably for the constitutional claims that he raises, the district court correctly premised its jurisdiction on 28 U.S.C. § 13831 (Supp. V 1981). But Rush is properly foreclosed from litigating in federal court the merits of the divorce decree or the garnishment order issued by the Florida courts. Under 28 U.S.C. § 1788 (1976), fed- eral courts, absent circumstances not present here, must give full faith and credit to state court judgments. More- over, the alleged constitutional defects in the Florida judgments that might be remediable in federal court are wholly without merit, as the district court held. In reaching our decision, we do not attempt to decide the merits of those claims raised by Rush that question the propriety of the actions taken by the Florida courts. Rather, consistent with the general policy that domestic relations is a field peculiarly suited to state regulation and control, we only mean to suggest that the Florida state courts, and not the federal courts, are the appro- priate forum for litigating these claims. Rush must seek his relief from the Florida courts. 108a APPENDIX. F [SEAL] THE COMPTROLLER GENERAL OF THE UNITED STATES Washington, D.C. 20548 DECISION File: B-203668 Date: February 2, 1982 MATTER OF: Technical Sergeant Harry E. Mathews, USAF DIGEST: The Air Force, which had been complying with a Florida state court order garnishing the pay of one of its members from June 1976 through May 1980 for child support, incurred no obliga- tion to reimburse the member when the garnish- ment was later set aside by the court. The original court order was reviewed by the Air Force which found it appeared valid on its face. Therefore, pursuant to 42 U.S.C. § 659, the Air Force was required to comply with it, and by doing so incurred no liability. Also, 42 U.S.C. § 659(f) (Supp. III, 1979) currently provides that no agency or disbursing officer will be held liable for making payments when the legal proc- ess appears valid on its face. This action is in response to an appeal by Technical Sergeant Harry E. Mathews, USAF, of our Claims Group’s disallowance of his claim for reimbursement of amounts withheld from his pay and for other expenses he incurred pursuant to the garnishment of his Air Force pay during the period June 1976 trough May 1980. The pay Sergeant Mathews is claiming was with- held by the Department of the Air Force pursuant to an 109a order for child support issued by a Florida Circuit Court in March 1976. There is no authority to reimburse the claimant for pay garnished under an order which, at the time the pay was garnished, was valid on its face, nor is there authority to reimburse him for other ex- penses he incurred in connection with the garnishment. In 1976, while Sergeant Mathews was assigned over- seas, he received notice that, due to a lawsuit brought against him in Florida for child support, a Florida state court had issued a garnishment order against his pay. Under the order, his pay was to be garnished until De- cember 1992, and an arrearage of $1,150 was also to be collected. The Air Force determined that the order was valid on its face and began complying with it by with- holding the required amounts from his pay. Contending that he had no prior notice of the lawsuit, and that it was based on fraud, Sergeant Mathews sought help from the Government to challenge the order. However, since it was primarily a private matter, the Air Force ad- vised him to seek civilian counsel to challenge the order in the Florida courts. Sergeant Mathews contends that he encountered dif- ficulty in securing civilian counsel. He also states that the hearing date on his Motion for Relief from Judg- ment was postponed several times and that, for an ex- tended period of time, his file was missing from the appropriate court, causing further delay. Throughout this time, payments of $151.67 a month plus $50 a month in payment of the arrearage were garnished from his pay. In May 1980, he was heard in the Florida court on a Motion for Relief from Judgment, and by order dated May 20, 1980, a judge of the Circuit Court for the Elev- enth Judicial Circuit, Dade County, Florida, ordered the garnishment set aside. On the basis that this order in- dictates that the garnishment should never have taken place, Sergeant Mathews filed a claim with the Air Force for reimbursement of the amount paid during the period 110a June 1976 through May 1980 as well as other expenses he indicates arose out of the matter. The Air Force Accounting and Finance Center, noting that it found no basis for reimbursement, sent the claim to our Claims Group which disallowed it on September 2, 1980. The issue in this case is whether the Government is authorized to reimburse a service member for money garnished from his pay pursuant to a state court order to which the Government is subjected under 42 U.S.C. § 659, when the order has been overturned. The order in this case was set aside presumably due to insufficient personal jurisdiction by the court over the member. Under the provisions of 42 U.S.C. § 659 (Supp. III, 1979) the Government has waived its sovereign immunity for the limited purpose of subjecting itself to state ac- tions to garnish the pay of its employees and members of the Armed Forces but only when garnishment is to provide child support and alimony. When the Air Force was served with a garnishment order valid on its face it was required to comply with it, and the Government incurred no liability to Sergeant Mathews in doing so. Thus, where an order appears regular on its face, the Government must garnish wages to make payment, and in fact, may be held liable if it fails to do so. See 56 Comp. Gen. 592 (1977). See also 42 U.S.C. § 659(f) which specifically provides that neither the United States, any disbursing officer, nor governmental entity is liable for payments made under this authority “pursuant to legal process regular on its face.” The inquiry into whether an order is valid on its face is an examination of the procedural aspects of the legal process involved, not the substantive issues. Whether a process conforms or is regular “on its face” means just that. Facial validity of a writ need not be determined “upon the basis of scrutiny by a trained legal mind,” nor is facial validity to be judged in light of facts out- side the writ’s provisions which the person executing llla the writ may know. Aetna Insurance Co. v. Blumenthal, 29 A.2d 751, 754 (Conn. 1948). As is indicated above, when the Air Force received the garnishment order, they reviewed it and found it valid on its face and in conformity with the Florida law. Sergeant Mathews has not shown that that finding was incorrect. Instead, he argued that the order was invalid because it was obtained by fraud, and that he had not been properly served in the original court action against him. As the Air Force advised him, these were matters for him to litigate in the courts and not for the Air Force to decide. That is, they were not challenges to the facial validity of the garnishment order. While the order was set aside in 1980, it was valid at the time payment was being made under it, and the Government had a duty to comply with it until the court modified it. There is no authority for reimbursement of the amounts withheld from Sergeant Mathews’ pay, nor is there authority to reimburse him for the legal and other expenses he claims he incurred in having the order overturned. Accordingly, the disallowance of the claim is sustained. /s/ Milton J. Socolar Acting Comptroller General of the United States W 6. 8. coveenment pains orice; 1963 426679 151 (THIS PAGE INTENTIONALLY LEFT BLANK) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0704%3A1. Public record. Not legal advice.