Petition for Writ of Certiorari — Kuzmiak v. Kuzmiak

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86-255 —

No.

IN THE SUPREME COURT OF THE UNITED

October Term, 1986

¢ TI x

———

, Supreme Court, U.S,

“Figs

| AUG 18 1986

JOSEPH F. SPANIOL, JR

ATES CLERK

— a,

MICHAEL A. KUZMIAK,

Petitioner,

vs.

PATRICIA KUZMIAK,

Respondent.

mr eee ee ee eee See”

PETITION FOR WRIT OF\ CERTIORARI TO THE

CALIFORNIA SUPREME COURT

STEPHEN TIMOTHY BUYNAK, JR.

HATCH AND PARENT

21 E. Carrillo Street

Santa Barbara, CA 93101

(805) 963-9231

Attorney for Petitioner

QUESTIONS PRESENTED

i. Whether a California state

court's assumption of jurisdiction, in

marital dissolution proceedings, over a

military member's nondisability retired pay

and Hawaii and Arizona real property

violated the due process clause of the

Fourteenth Amendment, the privileges and

immunities clauses of the United States

Constitution and the Fourteenth Amendment,

and the jurisdictional provisions of the

Federal Uniform Services Former Spouses’

Protection Act, 10 U.S.C. section 1408.

Se Whether federal law or

Congressional intent precludes a California

state court, in marital dissolution

proceedings, fron dividing military

nondisability retired pay that is derived

from a military member's separation pay

under 10 U.S.C. section 1174.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES Vv

OPINION BELOW 1

JURISDICTION 1

CONSTITUTIONAL AND

STATUTORY PROVISIONS 3

STATEMENT OF CASE 6

REASONS FOR GRANTING A WRIT 18

A. Jurisdiction Of The

California State Courts Over

Quasi-Community Property 18

Certiorari Should Be

Granted As The California

State Court's Assumption Of

Jurisdiction To Divide The

Military Nondisability

Retired Pay And Arizona And

Hawaii Real Properties

Within Material Dissolution

Proceedings Violated The

Constitutional Rights Of

Michael Kuzmiak Under The

Due Process And Privileges

And Immunities Clauses Of

The Constitution And

Fourteenth Amendment. 25

otie

Page

ae Certiorari Should Be

Granted As The Division And

Award Of Out-Of-State Real

Property By A California

State Court Violated The

Settled Doctrine Of Fall

v. Estin, And Thereby, The

"Traditional Notions Of

Fair Play And Substantial

Justice" Under International

Shoe. 30

a Certiorari Should Be

Granted As The Division And

Award Of Military Non-

disability Retired Pay

Violated The Jurisdictional

Provisions Of The Federal

Uniform Services Former

Spouses' Protection Act,

U.S.C. Section 1408(c) (4),

And Thereby, The "Traditional

Notions Of Fair Play And

Substantial Justice” Under

International Shoe. 33

B. Nondisability Retired

Pay. 38

Re Certiorari Should Be Granted

As Division Of Nondisability

Retired Pay Acquired Through

Reinvestment Of Post-Marital

Separation Pay, Conflicts

With The Congressional Intent

Underlying Separation And

Retired Pay. 39

-iii-

Page

ae Certiorari Should Be

Granted As The Transmutation

Of Post- Marital Separation

Military Separation Pay

Into Quasi-Community Property

Amounts To A Taking Of Property

Without Due Process In

Violation Of The Fourteenth

Amendment. 41

CONCLUSION 43

-iv-

TABLE OF AUTHORITIES

Cases

American Railway Express

Co. v. Levee, 263 U.S. 19

(1923)

Addison v. Addison,

62 Cal.2d 558,

399 P.2d 807 (1965)

Estin v. Estin,

334 U.S. 451 (1948)

Fall v. Estin,

245 U.B. 4 (1909)

Fransen v. Fransen,

142 Cal.App.3d 419 (1983)

Free v. Bland,

369 U.S. 663 (1962)

Hamilton v. Regents of the

University of California,

293 U.S. 254 (1934)

Hisquierdo v. Hisquierdo,

439 Ube Ste tanre)

In Re Marriage of Roesch,

83 Cal.App.3d 96 (1978)

In Re Thornton 's Estate,

1 Cal.2d 1 (1934)

International Shoe Company v.

Washington, 326 U.S. 310 (1945)

-V-

Page

20,21, 22

10,22

24,31,32

16,23

2,39

20 ,22,28

29,30

Kulko v. California Superior

Court, 436 U.S. 84 (1978)

Kuzmiak v. Kuzmiak,

176 Cal.App.3d 1152

222 Cal.Rptr. 644 (1986)

McCarty v. McCarty,

453 U.S. 210 (1981)

Miller v. Miller,

176 Cal.App.3d 1183 (1986)

Penoyer v. Neff,

95 U.S. 714 (1878)

Perry v. O'Donnell,

749 F.2d 1346

(9th Cir. 1984)

Rozan v. Rozan,

49 Cal.2d 322 (1957)

Shaffer v. Heitner,

433 U.S. 186 (1977)

Smith v. Smith,

45 Cal.2d 235 (1955)

Spreckéis v. Spreckels,

116 Cal. 339 (1987)

Tarvin v. Tarvin,

182 Cal.App.3d 721 (1986)

U.S. v. Wheeler,

254 U.S. 281 (1920)

Wisner v. Wisner,

338 U.S. 655 (1950)

Page

9,24,27

24,27

Page

STATUTES

10 U.S.C. sections 632 6,143,433,

1174 i3,i6,

17,38,43

1174 (h) (1) i7,.e

1408 (c) (4) Pol Pe y Pe

28 U.S.C. sections 1257 (3) 2

2101 (c) 2

2106 2

2403 (b) 2

California Civil Code

sections 4514 J0

4530 (a) a

4800 (a) 4

4800.5 32,00

4803 Si dees

i3Z,20,

aise?

California Civil Procedure Code

section 410.10 9

MISCELLANEOUS

United States Constitution

Article IV, Section 2,

Clause l 3,28

-vii-

Page

Fourteenth Amendment 3,420,246,

28 ,29,30

S. Rep. No. 59-502,

reprinted in 1982 U.S.

Code Cong. & Ad. News,

pp. 1603-1604 34

House Conf. Rep. No. 97-749,

reprinted in 1982 U.S. Code 34

Cong. & Ad. News, p. 1572

H. R. No. 96-1462,

reprinted in 1980 U.S. Code

Cong. & Admin. News, p. 6361 40

Rules of the Supreme Court

of the United States

Rule 21.1(b) l

Rule 28.4(c) 2

California Rules of Court

Rule 12i15(b) and (c) 10

1287 10

2 Witkin, California

Procedure, 3d Ed.,

p. 598 22

3 Stanford Law Review, 622 10,22

-viii-

OPINION BELOW i

The Court of Appeal of the State of

California, Division Six of the Second

Appellate District, issued an opinion in

this case. A copy of this opinion appears

in Appendix A to this Petition at pages 1

through 31. Portions of this opinion were

certified for publication and reported as

Kuzmiak v. Kuzmiak, 176 Cal.App.3d 1152,

222 Cal.Rptr. 644 (i986).

JURISDICTION

The Order of the California Supreme

Court denying review after judgment by the

California Court of Appeal was entered on

May 22, 1986. A Petition for Writ of

Certiorari can be filed within ninety (90)

1/ The caption of the case in this

court contains the names of all parties.

Rule 21.1(b), Rules of the Supreme Court of

the United States.

days of said denial. American Railway

Express Co. v. Levee, 263 U.S. 19 (1923).

Jurisdiction of this court is invoked

pursuant to 28 U.S.C. sections 1257(3),

210l1(c), and 2106, in that the application

of community property principles to

military separation and nondisability

retired pay as well as to out-of-state real

property threatens grave harm to the clear

and substantial federal interests in

federal military forces. McCarty v.

McCarty, 453 U.S. 210 (1981); Hisgquierdo v.

Hisgquierdo, 439 U.S. 572 (1978). Further,

under 28 U.S.C. 2403(b), the constitution-

ality of California Civil Code, section

4803, is drawn in question and appropriate

service has been made. Rule 28.4(c), Rules

of the Supreme Court of the United States.

CONSTITUTIONAL AND STATUTORY PROVISIONS

The constitutional and statutory

provisions considered in this case are:

a Article IV, Section 2, Clause l,

of the Constitution of the United States,

which provides:

"The Citizens of each State shall be

entitled to all Privileges and

Immunities of Citizens in the several

States."

a The Fourteenth Amendment of the

Constitution of the United States, which

provides, in part:

"No State shali make or enforce any

law which shall abridge the privileges

and immunities of citizens of the

United States; nor shall any State

deprive any person of life, liberty,

Or property without due process of

BOWt « @ ts *

3. 10 U.S.C. section 1408 (c) (4),

which provides:

"A court may not treat the disposable

retired or retainer pa, of a member in

the manner described in paragraph (1)

unless the court has jurisdiction over

the member by reason of (A) his

residence, other than because of

military assignment, in the

territorial jurisdiction of the court,

(B) his domicile in the territorial

jurisdiction of the court or (C) his

consent to the jurisdiction of the

court.”

4, California Civil Code, section

4800(a), which provides, in part:

" . . . the court shall, either in its

judgment of dissolution of the

marriage ... or at a later time if

it expressly reserves jurisdiction to

make such a property division, divide

the community property and the quasi-

community property of the parties

equally.

Ss California Civil Code, section

4803, which provides, in part:

"As used in this part, 'quasi-

community property' means all real and

personal property, wherever situated,

heretofore or hereafter acquired in

any of the following ways:

(a) By either spouse while

domiciled elsewhere which would have

been community property if the spouse

who acquired the property had been

domiciled in this state at the time of

its acquisition.

(b) In exchange for real or

personal property, wherever situated,

which would have been community

property if the spouse who acquired

the property so exchanged had been

domiciled in this state at the time of

its acquisition."

STATEMENT OF CASE

Through marital dissolution

proceedings, the Superior Court of the

State of €siifornia for the County of Santa

Barbara (hereinafter "superior court")

assumed jurisdiction to divide quasi-

community S/ personal and real property of

a career Air Force Officer and his wife.

Michael Kuzmiak was a Captain with the

United States Air Force. 3/ He grew up in

New Jersey and entered Air Force service in

that state on May 6, 1966. (Appendix A, p.

3) The marriage to Patricia Kuzmiak

2/ Quasi-community property is

defined by California Civil Code, section

4803, set forth, in full, at page 5 hereof.

3/ Because Captain Kuzmiak was

"passed over" twice when considered for the

grade of Major, he was involuntarily

discharged on February 28, 1983 from the

United States Air Force under 10 U.S.C.

section 632. He immediately enlisted in

the United States Air Force as an enlisted

member, a Sergeant.

occurred four (4) months later in New

Jersey; but the couple, on the date of the

marriage, moved, under military orders, to

Texas. Subsequently, Captain Kuzmiak

served, under military orders, in Texas,

New York, North Dakota, and commencing in

1975, in California. (Appendix A, p. 3)

While stationed in California under

military orders, Captain Kuzmiak maintained

a New Jersey driver's license, registered

his car in New Jersey, and voted in New

Jersey by absentee ballot. (Appendix A, p.

4) He filed an annual certificate with the

military stating that he was a New Jersey

resident; and he was thereby exempt from

New Jersey income taxation. (Appendix A,

p. 4) Captain Kuzmiak filed California

nonresident income tax returns during the

time that he was in California. (Appendix

A, Pp. 4)

Throughout the marital dissolution

proceedings, Captain Kuzmiak contended and

testified that he was, at all times, a

domicile of New Jersey, not California;

that he moved to and stayed in California

only because of military orders; and that

he never intended to become domiciled in

California. (Appendix A, pp. 3 and 4)

Patricia Kuzmiak, his wife, never

denied or contradicted this evidence or the

testimony of Captain Kuzmiak regarding his

domicile. She testified that she, however,

had "intended to become" a California

domicile. (Appendix A, p. 4) Further,

Since the dissolution of their marriage 4/

she had filed California tax returns,

although she still maintained a New Jersey

4/ This was a bifurcated marital

dissolution proceeding in the State of

California, so that the marital status of

the parties was dissolved almost three

years before orders determining the

division of the quasi-community property.

often

driver's license. (Appendix A, p. 4)

The marital dissolution proceedings

were instituted by wife Patricia xuzmiak

(hereinafter sometimes "Patricia") with the

filing of a petition for dissolution on

June 9, 1980, asserting that she was a

resident of the State of California for at

least six (6) months and of the County of

Santa Barbara for at least three (3) months

"immediately preceding" the filing of her

petition for dissolution. 2/

Husband,

Michael, Kuzmiak (hereinafter sometimes

"Michael") filed a standard Response

5/ These are the designated

jurisdictional "residency" requirements of

the State of California for its court to

grant a judgment of dissolution of

marriage. California Civil Code, section

4530(a).

California's jurisdiction is as broad

as the Constitution permits. California

Civil Procedure Code, section 410.10.

Kulko v. California Superior Court, 436

U.S. 84 (1978).

(Family Law) $/ and left blank the

residency declarations of said form.

On November 19, 1980, the superior

court entered an Interlocutory Judgment of

Dissolution of Marriage dissolving the

status of marriage of the parties only. Lf

On May 5, 1981, the remaining issues of the

marital dissolution proceeding were to be

heard, subject, however, to a stipulation

between the parties and verbalized on the

6/ In California, petitions for

marital dissolution and responses thereto

as well as many other marital dissolution

pleadings must be on preprinted forms

mandated by the Judicial Council of

California. On Petitions (Family Law) and

Responses (Family Law), see California

Rules of Court, Rule 1215, sections (b) and

(c), respectively.

7/ Interlocutory Judgments are no

longer issued in California. There are now

only judgments of dissolution which specify

an effective date six (6) months after

service or later. California Civil Code,

section 4514; California Rules of Court,

Rule 1287. California marital dissolution

proceedings employ the concept of a

"divisable divorce". Estin v. Estin, 334

U.S. 451 (1948); 3 Stanford Law Review 622.

atie

superior court's record by Michael's trial

counsel, with the agreement of Patricia's

trial counsel, as follows:

"Your Honor, at the .. . pre-trial

conference we had when we were

scheduling the trial, counsel for

petitioner (Patricia) indicated he

would stipulate as to the issue as to

whether Mr. Kuzmiak is a domiciliary

of the State of California and

therfore subject to the jurisdiction

of this Court insofar as the military

retirement benefits and certain

property which was brought into the

State of California from another

8 /

jurisdiction." — (Appendix C, pp. 50

and 51)

8/ Although not very specific, this

refers to the Arizona and Hawaii real

properties of the parties purchased while

they were stationed in North Dakota.

«3i«

The trial of the remaining issues proceeded

on May 5 and 6, 1981, before an assigned

municipal court judge who, at the

conclusion of the trial, found that

". . . the parties are residents of

California and New Jersey" (Emphasis

added, Appendix B, p. 32)

and entered various orders regarding

custody and visitation, support, and

California real property, reserving certain

issues for further trial proceedings.

Said further trial proceedings never

occurred. Instead, a stipulation by the

parties and subsequent court order of

October 5, 1982 vacated ali orders, except

those pertaining to child custody,

visitation, child and spousal support and

status. (Appendix B, p. 38)

On December 2 and 5, 1983, with each

of the parties having new trial counsel and

with a regular superior court judge, the

at 2e

remaining issues were tried. A portion of

the trial was devoted to the domicile of

Michael and the resultant jurisdiction of

the Superior Court over his military

separation pay — and the real property in

Hawaii and Arizona. The Order After

Hearing (Appendix B, pp. 34 through 46)

determined, in its pertinent parts hereto,

", . » That Mr. Kuzmiak is a resident

and domiciliary of the State of

California within the meaning of

California Civil Code, section 4803

and that the property in question is

quasi-community in character. ...

(Appendix B, p. 40)

9/ Retirement benefits had become

separation pay. On February 28, 1983,

Michael was involuntarily discharged from

the United States Air Force at Vandenberg

Air Force Base, as he was "passed over" for

selection to the grade of Major. 10 U.S.C.

section 632. He was thereby entitled to

separation pay under 10 U.S.C. 1174.

-13-

". . . That the funds received by the

Husband upon separation from the

United States Air Force, $24,000.00,

was retirement pay or payment in lieu

of retirement pay (subject to quasi-

community property division) ...

(Appendix B, p. 40)

". . . That the two (2) pieces of

unimproved real property in Hawaii and

Arizona are equal in value; and the

Wife is awarded the Hawaii property

and the encumbrance thereon and the

Husband is awarded the Arizona

property and the encumbrance thereon

- « « -" (Appendix B, pp. 41 and 42)

An appeal was lodged by Michael to the

Court of Appeal of the State of California,

Division Six of the Second Appeilate

District, whose determination is sought to

wie

be reviewed. (Appendix A, pp. 1-31) The

appellate briefs considered the jurisdic-

tion of the California courts. * The

appellate court 10/ found that Michael was

a domicile of California, as

"A finding of husband's California

domicile is necessary to support a

division of his longevity pension

under FUSFSPA absent his voluntary

residence in the state or his consent

to jurisdiction .. . (Appendix A, p.

23) (and)

". « « & finding of California

domicile of both spouses is necessary

to confer jurisdiction upon the court

to divide any quasi-community property

10/ Portions of the California

appellate court's opinion concerning its

separation pay determinations were

published. Kuzmiak v. Kuzmiak, 176

Cal.App.3d 1152, 222 Cal.Rptr. 644 (1986).

-15-=-

of the marriage. (In Re Marriage of

Fransen, (1983) 142 Cal.App.3d 419,

430. The trial judge's division of

the couple's Hawaii and Arizona

properties as quasi-community property

rests upon this domiciliary jurisdic-

tion." (Appendix A, pp. 24 and 25)

Thereupon, the Court of Appeal determined

that:

l. Michael's military separation pay

under 10 U.S.C. section i174 was his

separate property unless he applies for

military retirement. If such an

application occurs in conjunction with

Michael's enlistment il/ his separate

property would be converted into community

property subject to division by the

1l/ Immediately upon his involuntary

discharge as a Captain from the United

States Air Force at Vandenberg Air Force

Base, California, Michael enlisted, as an

enlisted member in the United States Air

Force, a Sergeant.

ai6<

California superior court. (Appendix A,

pp. 17-21)

y The Hawaiian and Arizona real

properties were subject to division by the

California superior court; but since there

was insufficient evidence of the value of

these properties, the cause was remanded

for a new hearing. (Appendix A, pp. 29 and

30)

A Petition For Rehearing was immedi-

ately lodged by Michael for consideration

of the issue of Patricia's interest, if

any, in Michael's military nondisability

retired pay, acquired with separation pay

12/

after marital separation, —'’ and

12/ The appellate court found that

separation pay under 10 U.S.C. 1174 was

Michael's separate property under McCarty

v. McCarty, 453 U.S. 210 (1981). However,

the appellate court further determined that

by reason of Michael's enlistment, the

separation pay was transmuted into

community property even though the

separation pay was separate property

reinvested by Michael upon enlistment after

marital separation, all by reason of 10

ot Tu

reconsideration of the appellate court's

determination of Michael's California

domicile since it was based primarily on

Michael's enlistment after marital

separation. The Petition for Rehearing was

denied on February 25, 1986.

A Petition for Review by the

California Supreme Court was thereafter

requested by Michael. With one dissent,

the Petition For Review was denied on May

22, 1986. (Appendix B, p. 48)

REASONS FOR GRANTING A WRIT

A. Jurisdiction of the California

State Courts Over Quasi-Community Property.

In these marital dissolution

proceedings between the Kuzmiaks, the

California state court assumed jurisdiction

U.S.C. section 1174(h) (1). Since this

extension of the California court's

authority had not been argued or briefed

earlier, a Petition For Rehearing was

lodged, but denied.

o) $<

to divide the military nondisability

retired pay and the Arizona and Hawaii real

properties on the basis that Michael was a

domicile of the state of California.

The evidence and testimony of Michael

regarding his New Jersey domicile was

uncontroverted. However, the state court

seized upon Michael's enlistment in the Air

Force at Vandenberg Air Force Base,

California, immediately after his

involuntary discharge under 10 U.S.C.

section 632 and determined that he was a

California domicile, even though these

actions took place some three (3) years

after the institution of the state marital

dissolution proceedings. az!

13/ The date when jurisdiction of

California state courts over military

nondisability retired pay is determined is

currently in dispute in California.

Compare Miller v. Miller, 176 Cal.App.3d

1183 (1986) (assuming jurisdiction to

divide retired pay of a nonresident based

on a 1970 judgment of dissolution) with

o19-

The predecessors to the California

statute in question, California Civil Code,

section 4803, 14/ which defines

"“quasi-community property", had a long

histery of unconstitutionality. In re

Thornton's Estate, 1 Cal.2d 1 (1934).

Particularly, the ongoing issue was how

could the State of California in dividing

property brought into this state from

common law states (such as New Jersey),

through marital dissolution proceedings,

avoid the due process and privileges and

immunity clauses of the Constitution and

its Fourteenth Amendment. The statute was

15/

revised in 196l. Addison v. Addison,

Tarvin v. Tarvin, 182 Cal.App.3d 721 (1986)

(declining jurisdiction under similar

circumstances). Review by the California

Supreme Court was denied in Miller, supra.

14/ See page 4-5 for complete

statute.

15/ The 1961 statute was different

from the current version, as it stated

", . . 'quasi-community property' means all

=-20<

62 Cal.2d 558, 399 P.2d 807 (1965)

sustained its constitutionality on the

basis chat

". . « the concept of quasi-community

property is applicable only if a

divorce . .. is filed here after the

parties have become domiciled in

California" (emphasis added).

Addison, supra, 62 Cal.2d 558, 566.

By basing its claim of jurisdiction on

persongl property wherever situated and all

real property situated in this state

heretofore and hereafter acquired..."

Changes were made in 1975, adding real

property to this section; and these changes

have never been judicially challenged. The

current California Civil Code, section

4803, reads, in part: "9

" , . - 'qQuasi-community property'

means all real and personal property,

wherever situated, heretofore or

hereafter acquired in any of the

following ways. . ss

Since the statute was originally enacted in

1891, it underwent changes in 1917 and 1923

until Addision, supra, determined its

constitutionality.

aZin

events happening three (3) years after the

institution of these dissolution ~

proceedings, the California state court

neglected the safeguards of Addision,

supra, and thereby violated the

constitutional rights of Michael Kuzmiak.

In re Thornton's Estate, supra.

An award of marital property to one

spouse in marital dissolution proceedings

is an exercise of "in rem" jurisdiction.

Penoyer v. Neff, 95 U.S. 714 (1878&).

Jurisdiction over the marital "res" or

status does not carry with it suetetnerien

over marital property. Thus, the power to

award property between the contending

marital partners is governed by the general

principles of jurisdiction of a state over

property, 2 Witkin, California Procedure,

3d Ed., p. 598; 3 Stanford Law Review 622,

with each right or property considered

separately. Estin v. Estin, 334 U.S. 451

(1948).

Since the state court was dealing with

“quasi-community property, when considering

the military nondisability retired pay and

the Arizona and Hawaii real properties,

both parties had to be domiciled in

California prior to the institution of the

dissolution proceedings for the court's

jurisdiction. In re Marriage of Roesch, 83

Cal.App.3d 96 (1978); Fransen v. Fransen

142 Cal.App.3d 419 (1983). This case

development in California, which was

emphasized by the appellate court in its

opinion, Appendix A, page 25, is an

application of the principles governing

state jurisdiction over property. Or in

terms of International Shoe Company v.

Washington, 326 U.S. 310 (1945), a

determination of whether there existed

certain minimum contacts with California so

that jurisdiction over the quasi-community

property of the Kuzmiaks, the military

w33<

nondisability retired and separation pay

and the Arizona and Hawaii real property,

did not offend the "traditional notions of

fair play and substantial justice."

Shaffer v. Heitner, 433 U.S. 186 (1977);

Kulko v. California Superior Court, 436

U.S. 84 (1978).

In exploring these "traditional

notions of fair play and substantial

justice", the California state court's

jurisdiction over the Arizona and Hawaii

real properties of the Kuzmiaks must

consider the doctrine of Fall v. Estin, 21

U.S. 1 (1909) and its jurisdiction over th

military nondisability retired and

separation pay must consider, the pro-

visions of 10 U.S.C. section 1408(c) (4).

-24-

a Certiorari Should Be Granted As

The California State Court's Assumption Of

Jurisdiction To Divide The Military

Nondisability Retired Pay And Arizona And

Hawaii Real Properties Within Marital

Dissolution Proceedings Violated The

Constitutional Rights Of Michael Kuzmiak

Under The Due Process And Privileges And

Immunities Clauses Of The Constitution And

Fourteenth Amendment.

By uncontroverted evidence and

testimony, Michael Kuzmiak was clearly a

domicile of New Jersey at the institution

of the California marital dissolution

proceedings in 1980. The mere fact, that

three (3) years subsequent thereto he

enlisted in the Air Force at the same

installation, Vandenberg Air Force Base,

California, as he was involuntarily

discharged from military service, should

not change this conclusion. A military

a 28e

member is not obligated to enlist in his

home state; and it seems somewhat

ridiculous for an individual, all at Unitec

States government expense, to travel via

discharge orders to his home state to

enlist and then to travel via enlistment

orders back to California as Vandenberg Aiz

Force Base was Sergeant Kuzmiak's duty

station. Every indicia of domicile in New

Jersey, that could be maintained, was

accomplished by Michael. (See page 7,

supra.) In addition, the State of

California never questioned and voluntarily

accepted Michael Kuzmiak's nonresident tax

returns, thereby assenting to his

non-resident status.

"The Due Process Clause of the

Fourteenth Amendment operates as a

limitation on the jurisdiction of

state courts to enter judgments

affecting rights and interests of

o%Se

cet?

nonresident defendants."

(Kulko v. California Superior Court,

supra, 436 U.S. 84, 91.