Petition for Writ of Certiorari — McLeod v. McLeod

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In The

Supreme Court of the United States

October Term, 1992

WILLIAM C. McLEOD II, Petitioner.

FUMIKO I. McLEOD, Respondent.

Petition for a Writ of Certiorari

to the California Court of Appeais

for the Fourth Appellate District, Division Three

PETITION FOR A WRIT OF CERTIORARI

Douglas B. Cone

Attorney at Law

720 West 19th Street

Merced, California

(209) 383-4333

Counsel for Petitioner

QUESTION PRESENTED FOR REVIEW

Whether California courts can, consistent with the

Supremacy Clause and due process, invent new procedural

rules to circumvent 10 U.S.C. §1408 that specifically details

the sole conditions under which state courts may exercise

subject matter jurisdiction over the potential military

retirement pay of non-California citizens.

Re en ET OR

PARTIES

The parties are: Petitioner, Lieutenant Colonel William

C. McLeod II, U.S.A.F. and Respondent, Fumiko I. McLeod.

Since Petitioner contends California’s community

property division of the potential military retirement pay

pursuant to California Civil Code §4800(a) of active duty

military service members who do not consent to division and

who are not California citizens violates the supremacy clause

of the Federal Constitution, 28 U.S.C. §2403(b) may be

applicable, and the Attorney General of the State of California

is being served pursuant to Rule 29.4(c) of this court.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .......... i

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pe 8 Be ee gy |, y +. aaa ili

pee a py 8) ag | iv

OPINIONS OF THE LOWER COURTS .......... l

JURISDICTIONAL GROUNDS ............... l

CONSTITUTIONAL AND STATUTORY

OY EGRET MEO WOPEVESED 6 ws 2

SaAtmmons OF THE CASE ............008. 4

Ue A Lik ks als ba ke ow Ae SS 7

CALIFORNIA DOES NOT HAVE SUBJECT

MATTER JURISDICTION OVER BILL’S

POTENTIAL MILITARY RETIREMENT

PAY BECAUSE CALIFORNIA IS NOT BILL’S

RESIDENCE OR DOMICILE AND HE DOES

NOT CONSENT TO JURISDICTION ....... 7

LS aE ae ar ar ae ar er ear ee ge a 13

APPENDICES

A are ae

B Court of Appeal Opinion ......

i Court of Appeal’s Denial

i Re he eS A Ts

D California Supreme Court Order

eayine Review... 6 as

Re ck a ae ae ee ee ee ees

TABLE OF AUTHORITIES

CASES

Free v. Bland,

369 U.S. 663 (1962)..............

Hisquierdo v. Hisquierdo,

439 U.S. 572 (1979)... ee ee

In re Burrus,

136 U.S. 586 (1890)... ...0...00..

In re Marriage of Hattis,

196 Cal.App.3d 1162 [242

Cal.Rptr. 410] (1987)... 0.000.000

In re Marriage of Tucker,

226 Cal.App.3d 1249

(277 Cal.Rptr. 403] (1991) ... 2.0...

McCarty v. McCarty,

453 U.S. 210 [101 S.Ct. 2728,

Om Di Ge PE COUPEE 6 6 6 ee hee eK 7

McCulloch v. Maryland,

Owens v. Superior Court,

32 Cal.2d 822 [345 P.2d 921] (1959) ......... 1]

Ridgway v. Ridgway,

Ce Wie RD ee ee ek oe eee eee 7, 8

Tarvin v. Tarvin,

187 Cal.App.3d 56

[232 Cal.Rptr. 13] (1986) ....... 10, 11, 12, 13

CONSTITUTION & STATUTES

cs ce .. GR, We, Se ee ee eee

USE WM .....4.5 5).

28 U.S.C. $125Ta) oe ce cece eee:

28 U.S.C. §2403(b) .. 0... eee eee ee

California Civil Code §4800(a) ... . . Pree

sumpcmes Court Re 29.40) . 6 66 Sie ee ee eee eee

OPINIONS OF THE LOWER COURTS

On September 17, 1990, the trial court determined it

had jurisdiction to divide Petitioner’s potential military

retirement pay as community property, even though Petitioner

does not reside in California, is not domiciled in California,

and did not consent to California jurisdiction over his potential

military retirement pay. The trial court specifically based its

finding of jurisdiction on Petitioner’s appearance in the action.

(Appendix A.)

On May 29, 1992, the Court of Appeal affirmed

jurisdiction, but not based upon Petitioner’s appearance in the

case. Rather, it affirmed jurisdiction based upon implied

consent. (Appendix B.)

The Court of Appeal denied rehearing on June 29,

1992. (Appendix C.)

The California Supreme Court denied Review on

August 20, 1992. (Appendix D.)

JURISDICTIONAL GROUNDS

Lt. Col. McLeod invokes this court’s jurisdiction under

28 U.S.C. §1257(a). He asks the court to determine whether

California has subject matter jurisdiction to characterize and

divide his potential military retirement pay as community

property in violation of 10 U.S.C. §1408(c)(1) when he does

not reside in California, is not domiciled in California, and

does not consent to California jurisdiction over his potential

military retirement pay.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Supremacy Clause of the federal

Constitution:

U.S. Const., Art. VI, Cls. 2:

"The Constitution, and the Laws of the United

States which shall be made in Pursuance thereof; and

¢ll Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding."

This case also involves 28 U.S.C. §1257(a)

28 U.S.C. §1257(a):

"Final judgments or decrees rendered by the

highest court of a state in which a decision could be

had, may be reviewed by the Supreme Court by writ

of certiorari where the validity of a treaty or statute of

the United States is drawn into question or where the

validity of a statute of any state is drawn in question

on the ground of its being repugnant to the

Constitution, treaties, or laws of the United States, or

where any title, right, privilege, or immunity is

specifically set up or claimed under the Constitution or

the treaties or statutes of, or any commission held or

authority exercised under, the United States."

This case also involves the jurisdictional provisions of _

the Uniformed Services Former Spouses Protection Act

(FUSFSPA), (10 U.S.C. §1408(c)(1) and (c)(4). The statute

is set forth in full in the appendix because of its length. The

relevant portion provides:

"(c) AUTHORITY FOR COURT TO TREAT

RETIRED PAY AS PROPERTY OF THE MEMBER

AND SPOUSE.--

"(1) Subject to the limitations of this section, a

court may treat~disposable retired pay payable to a

member for pay periods beginning after June 25, 1981,

either as property solely of the member or as property

of the member and his spouse in accordance with the

law of the jurisdiction of such court. A court may not

treat retired pay as property in any proceeding to

divide or partition any amount of retired pay of a

member as the property of the member and the

member’s spouse or former spouse if a final decree of

divorce, dissolution, annulment, or legal separation

(including a court ordered, ratified, or approved

property settlement incident to such decree) affecting

the member and the member’s spouse or former spouse

(A) was issued before June 25, 1981, and (B) did not

treat (or reserve jurisdiction to treat) any amount of

retired pay of the member as property of the member

and the member’s spouse or former spouse.

* * * *

"(4) A court may not treat the disposable

retired or retainer pay 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.

STATEMENT OF THE CASE

Petitioner, LIEUTENANT COLONEL WILLIAM C.

MCLEOD II [Bill], is a career officer on active duty in the

United States Air Force. He is domiciled in the State of

Colorado. (Court of Appeal Opinion, p. 8, fn. 3; RT Sept 22,

1988, at 21-22 and 139-140.)

Respondent, FUMIKO (ISHII) MCLEOD [Fumiko], is

a Japanese naturalized American citizen who established

California as her domicile when the parties were stationed in

California in the late 1970s. (RT Mar 6-7, 1989, at 91.) The

parties were married in Tokyo, Japan, in 1972 while Bill was

stationed on Okinawa. (CT 607.)

The parties were transferred to West Germany in 1981.

(CT 426.) In May, 1984, Fumiko absconded to California

with the children and all of the parties liquid assets. Five

days later, on June 4, 1984, she filed a petition for dissolution

of marriage. (CT 4.)

Bill wrote several letters to the court objecting to

jurisdiction, and the court purported to stay the proceedings

pursuant to the Soldiers and Sailors Civil Relief Act. (CT 17-

18, 110.) Nevertheless, the court entered an order for child

and spousal support and other relief. (CT 110-112.) Fumiko

then obtained writs of execution and garnished virtually all of

Bill’s pay. (CT 37-38, 80, 279.)

Later, the court appointed an attorney to represent Bill.

(CT 36.) Bill specifically instructed the attorney not to make

a general appearance. (CT 600.) Nevertheless, the court-

appointed attorney filed a response to the petition for

dissolution without Bill’s signature, knowledge, or consent.

(CT 1744.)

Eighteen months after Fumiko took all of the money

(approximately $40,000.00) and left Bill in Germany, and

after California garnished all of Bill’s military pay, he was

financially forced to come to California. He had to try to set

aside the garnishments so he could live.

At a November 21, 1985 hearing, Fumiko and Bill

entered a stipulation concerning interim orders for family

support. All other issues were specifically reserved for trial.

(CT 162-164.)

During the six years the case was pending for trial,

numerous interim proceedings were held, including a change

in venue at Fumiko’s request. Bill continued to object to

jurisdiction. (CT 992.) He raised the jurisdiction issue at

every possible opportunity. (CT 658-662.)

On September 28, 1989, five years after Fumiko filed

the case, the parties entered into a pre-trial stipulation to

retain a private retired judge to hear the case because they

could not get a trial date on the crowded calendar. (CT 908.)

The Stipulation provided, in relevant part:

"Parties and Attorneys stipulate to have the

entire matter assigned to JAMS - Judge Rutter.

Respondent to be fully responsible for that part of the

fees for JAMS in connection with the following issues.

* * *

2. Military pension v. sep. property retainer

pay. * * * ." (JAMS is the Judicial Arbitration and

Mediation Service; a private "rent-a-judge" agency;

Clerk’s Transcript, page 908-909.)

Both parties and their attorneys signed the Stipulation,

and the regular trial court judge approved the stipulation as an

order of the court. (CT 908.)

Thus, it was understood by the court, counsel, and

parties that Bill did not consent to characterization of his

potential military retirement pay as community property.

Further, he agreed to pay the additional cost of the trial

attributable to his claim that the potential military retirement

pay is separate property under federal law.

A three day trial was held on September 4, 5, and 9,

1990. Judgment was filed on September 17, 1990. (CT 929-

939.) The trial court found personal jurisdiction and

jurisdiction to divide Bill’s potential military retirement pay as

community property based upon Bill’s general appearance on

November 21, 1985 and stipulation for interim orders. (CT

929-939.)

The Court of Appeal affirmed on May 29, 1992, and

denied rehearing on July 2, 1992. The Court of Appeal

specifically declined to hold that Bill had an affirmative duty

to raise the issue of non-consent. (Opinion, page 9, lines 3-4.)

Nevertheless, the Court of Appeal determined Bill consented

to division of his potential retirement pay by his lack of

responsive filings after Fumiko listed Bil!l’s retirement benefits

in a settlement conference statement she filed two and one-half

years before trial and before venue was changed at Fumiko’s

request. (Opinion, page 8-9.)

In California, there is no statute or rule providing

failure to brief an issue for a pre-trial setthement conference

constitutes consent to jurisdiction. Nor does any prior case

establish this rule. The Court of Appeal did not recite any

rule, statute, or case law conferring consent. The Court of

Appeal simply invented a new procedural rule, unique to this

case, because there was no valid way to uphold the substantive

finding of the trial court.

The Court of Appeal denied rehearing on June 29,

1992. The California Supreme Court denied review on

August 20, 1992. This petition is being filed within 90 days

following the state Supreme Court’s denial of review.

ARGUMENT

CALIFORNIA DOES NOT HAVE SUBJECT

MATTER JURISDICTION OVER BILL’S

POTENTIAL MILITARY RETIREMENT PAY

BECAUSE CALIFORNIA IS NOT BILL’S

RESIDENCE OR DOMICILE AND HE DOES

NOT CONSENT TO JURISDICTION

When state action conflicts with a _ direct

pronouncement of federal law, the state act is invalid, even in

domestic relations cases. As the Court pointed out in Ridgway

v. Ridgway, 454 U.S. 46 (1981):

“Notwithstanding the limited application of federal law

in the field of domestic relations generally, (see

McCarty v. McCarty, 453 U.S. 210 [101 S.Ct. 2728,

2735, 69 L.Ed.2d 589] (1981); Hisquierdo v.

Hisquierdo, 439 U.S. 572, 581 (1979); In re Burrus,

136 U.S. 586, 593-594 (1890)), this court, even in that

area, has not hesitated to protect, under the Supremacy

Clause, rights and expectancies established by federal

law against the operation of state law, or to prevent the

frustration and erosion of the congressional policy

embodied in federal rights... . And, specifically, a

state divorce decree, like other law governing the

economic aspects of domestic relations, must give

way to clearly conflicting federal enactments."

(emphasis added, Ridgway, 454 U.S. at 54-55).

Pre-emption by the federal government, quite simply,

deprives state courts of subject matter jurisdicuion, and this

has been so from the earliest days of our country. (McCulloch

v. Maryland, 4 Wheat. 316 (1818).)

Since McCulloch, if a state action is seen to be

incompatible with any legitimate exercise of power by the

federal government, it loses all claim of validity--and this is

true even though the state action in question was taken within

a sphere in which the states could otherwise act. (ree v.

Bland, 369 U.S. 663, 666 (1962).)

In the present case, Congress has specifically defined

and limited the conditions under which states may exercise

jurisdiction over military reurement pay. Tithe 10 of U.S.C.

Secuon 1408(c)(4) provides:

"A court may not treat the disposable retired or

retainer pay of a member [as community property|

unicss 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."

Since the appellant in the present case has never resided in

California except because of his military assignments, and

since he has never been domiciled in California, and since he

does not consent, the California courts do not have jurisdiction

to treat his military retirement pay as community property.

The Court of Appeal agreed jurisdiction cannot be

based upon residence or domicile, so it invented a new way to

imply consent. The Court of Appeal found consent to division

of the retirement pay, even though Bill objected at every

opportunity and the parties stipulated the issue was reserved

for trial.

The Court of Appeal found consent. But, it did not

address the fact that the stipulation to try the issue was made

an order of the trial court.

The Court of Appeal found consent. But, it did not

address the fact that Bill paid all of the extra cost of litigating

the issue.

The Court of Appeal found consent. But, it did not

address the fact that the issue was actually litigated at trial.

The Court of Appeal found consent. But it did not

base its factual finding on any Statute, rule of court, or

decision of any prior case. It simply invented a new rule, for

this case only, because Bill had met all of the previously

established statutes, rules, and cases.

The appellate court "rule-making" and "fact-finding"

in the present case simply denics all process of law, never

mind due process.

In the case of In re Marriage of Hattis, 196

Cal.App.3d 1162 [242 Cal.Rptr. 410] (1987), a former wife

filed complaints to partition her non-resident, former

husband’s military retirement pay and to modify the- child

support provisions of a Georgia judgment of dissolution. The

Court of Appeal held that the former husband was not subject

to the jurisdiction of California in the action to partition his

military retirement pay.

According to Hattis, supra, since the jurisdictional

analysis required under 10 U.S.C. §1408(c)(4) for the

partition of the retirement pay differs from the constitutional

"minimum contacts" approach applicable to the action on the

child support order, California did not have jurisdiction to

partition the military retirement pay, even though it could

order child support.

This was true, even though the retired service member

voluntarily appeared in the action. In contrast, in the present

case, California forced Bill to appear by garnishing all of his

military pay. Nevertheless, appearance does not confer

jurisdiction over military retirement pay. (fattis, supra.)

The Federal Uniformed Services Former Spouses

Protection Act, 10 U.S.C. §1408, provides jurisdiction based

only upon residence other than by reason of military

assignment, domicile, or consent. Minimum contacts will not

sustain jurisdiction when Congress has expressly dictated a

more restrictive standard for dividing military retirement pay.

(In re Marriage of Hattis, 196 Cal.App.3d 1162 [242

Cal.Rptr. 410] (1987); see also Jarvin v. Tarvin, 187

Cal.App.3d 56 [232 Cal.Rptr. 13] (1986).)

In the present case, the trial court specifically relied

upon a minimum contacts analysis and Bill’s purported general

appearance in the case. This was reversible error. (f/attis,

supra.) Bill is not domiciled in California. His past residence

in the state was solely a result of military assignment.

Further, he did not consent to jurisdiction. To the contrary,

he objected to jurisdiction at every reasonable opportunity.

Therefore, under 10 U.S.C. §1408(c)(4), California does not

have jurisdiction to divide his potential military retirement

benefits.

Even if Bill had consented to jurisdiction over the case

generally, which he did not, the California court would still

not have subject matter jurisdiction over his potential military

retirement pay. In 7arvin v. Tarvin, 187 Cal.App.3d 56 [232

Cal.Rptr. 13] (1986), one of the issues was whether the

California court had jurisdiction, based upon past residency,

over a non-resident, former husband for purposes of dividing

the service member’s quasi-community property military

retirement pay. The court found FUSFSPA does not provide

jurisdiction based upon past residency.

"(T]he mere fact of past domicile in the state would

not subject [the defendant] to its jurisdiction

indefinitely, for a past domicile having no relationship

to the litigation at hand would not afford a reasonable

basis for assertion of jurisdiction." (Owens v. Superior

Court, 52 Cal.2d 822, 829 [345 P.2d 921] (1959).)

In Tarvin v. Tarvin, 187 Cal.App.3d 56 [232 Cal.Rptr.

13] (1986), the only connection between pending litigation and

the serviceman was his past residency in California. This was

too remote and indirect. The former husband’s military

retirement rights did not mature during his brief California

residency, and his former domicile could not subject him to

California’s present jurisdiction. (Jarvin, supra., 187

Cal.App.3d at 60.) Therefore, the service member could

appear and object to jurisdiction.

For the same reasons, the trial court did not have

jurisdiction to divide Bill’s potential military retirement pay in

the present case. Bill’s only connection to California, other

than the fact his wife stole his children and virtually all of his

money and fled to California, is his past residency in this

state, which was solely due to official orders of the United

State Air Force. This is teo remote and indirect. (Tarvin,

supra., 187 Cal.App.3d at 60.) Therefore, the court lacked

subject matter jurisdiction.

In In re Marriage of Tucker, 226 Cal.App.3d 1249

[277 Cal.Rptr. 403] (1991), the Court of Appeal confirmed

that a service member’s consent to jurisdiction over the status

of the marriage, community property generally, spousal

support, and child custody and support does not confer

jurisdiction over military retirement pay within the meaning of

10 U.S.C. §1408. The facts of Tucker are remarkably similar

to the present case.

As in the present case, the service member in Tucker

maintained domicile in a different state, but owned a

community property house in California. As in the present

case, the service member in J7ucker stipulated, pendente lite,

to temporary orders concerning custody and support, and he

subsequently fully litigated the case. As in the present case,

the service member in 7ucker fiied non-resident income tax

returns while he was stationed in California, and he objected

to subject matter jurisdiction over his military retirement

benefits. And. as in the present case, the former spouse in

Tucker did not argue that the service member’s residency due

to military assignment in California conferred jurisdiction.

Rather, exactly as in the present case, the former

spouse in Tucker argued California had jurisdiction over the

military retirement pay because the service member consented

to jurisdiction based upon his general appearance in the case.

The Tucker Court of Appeal rejected the argument.

"{A] member of the military * * * may both agree

California has jurisdiction over non-pension issues and

at the same time argue California has no power to

divide his or her military pension." (/n re Marriage of

Tucker , 226 Cal.App.3d 1249 [277 Cal.Rptr. 403] (1991).)

That is exactly what Bill did in the present case.

Therefore, the judgment should have been reversed. In the

present case, the trial court did not rely on the purported

"consent" found by the Court of Appeal. The trial court

simply refused to follow the correct rule of Hattis, Tarvin,

and Tucker.

Nevertheless, the Court of Appeal, in its zeal to

continue California’s tradition of ruling against military

members in family law cases, affirmed by inventing a new

rule that denies due process and offends the Supremacy

Clause.

CONCLUSION

Certiorari should be granted to determine whether an

appellate court may establish a new procedural rule that

violates due process and offends the Supremacy Clause.

Respectfully Submitted,

Douglas B. Cone

Counsel of Record

720 West 19th Street

Merced, California 95340

(209) 383-4333

November, 1992.

FILED

SEP 17 1990

Gary L. Granville,

County Clerk

JUDICIAL ARBITRATION &

MEDIATION SERVICES, INC.

500 North State College Boulevard

Suite 600

Orange, California 92668

Telephone - (714) 939-1300

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ORANGE

In re the marriage of ) NO. D-29-01-45

Petitioner: )

FUMIKO I. MC LEOD )

and ) JUDGMENT ON

Respondent: ) RESERVED

WILLIAM C. MC LEOD II ) ISSUES

)

This matter came on for trial on October 4, 5 and 9,

1989, before the Honorable J.E.T. Rutter, Retired, by

stipulation of all parties sitting as Judge Pro Tem, on issues

reserved after the bifurcation of marriage on September 29,

1989.

Petitioner, FUMIKO ISHII MC LEOD, was present

and represented by her attorney PETER H. WERNICKE.

Respondent, WILLIAM C. MC LEOD II, was present and

represented by his attorney, WILMA E. PRESLEY.

APPENDIX A |

The Court orders as follows:

CUSTODY AND VISITATION:

1. By reference, the Partial Judgment on Reserved

Issues of Custody and Visitation, signed on December 15,

1989, and filed on December 15, 1989, attached hereto, is

incorporated herein.

CHILD SUPPORT:

2. As and for support of the minor children of the

parties, MARGARET COCO MC LEOD, born January 11,

1977, and WILLIAM CARL MC LEOD III, born January 1,

1980, the respondent is ordered to pay to petitioner the sum

of $300.00 per month per child, for a total of $600.00 per

month, payable one-half on the first and one-half on the

fifteen of each month, commencing November 1, 1989. Said

child support shall continue to be paid for each child until

further order of court, or until the child marries, dies, is

emancipated, reaches 19, or reaches 18 and is not a full-time

high school student residing with a parent, whichever occurs

first.

The Court finds that petitioner’s net income is

$2,116.00 per month, and respondent’s net income is

$3,374.00 per month. The Court, in ordering this amount of

child support, has taken into consideration the expense to

respondent of transporting his children to his duty station, of

coming to California to visit them, and his expenses while

they are with him for the summer visitation. This order,

therefore, assumes and expects that respondent shall pay all

such costs and assumes all such expenses. Should he move to

a different part of the world, respondent shall have the right

to show an increase in transportation costs.

APPENDIX A

SPOUSAL SUPPORT:

3. The Court reserves jurisdiction over spousal support

until January 1, 1997, at which time spousal support shall

cease and terminate, and the Court shall lose jurisdiction over

spousal support. The Court intends this order to be a

termination order and does not permit extension of spousal

support by a motion filed prior to date of expiration.

RESTORATION OF NAME:

4. Upon entry of this decree, the Court orders the

petitioner resume her name as a hyphenated name, FUMIKO

ISHII-MCLEOD.

DIVISION OF PROPERTY:

5. Petitioner shall be awarded as her sole and separate

property from the community the following items:

a. Monies taken from community money market fun&19,900

b. German bank accounts received: 24,438

c. Received from bank account before separation: 2,900

d. Remaining balance in community checking account: 660

e. Further funds received at separation (Ex. FF) 1,158

Sub-total: $49 056

Petitioner shall receive the following credits:

Funds returned: rental income $7,811.43 minus

$6,314.48 equals a net credit: ( 1,497)

Credit for airline tickets: ( 2,900)

Net funds taken - petitioner: $44,659

APPENDIX A 3

f. One-half of savings bonds; respondent is ordered to account

these bonds to petitioner,and turn over one-half of the bonds

to petitioner -0-

g. Petitioner’s IRA: 960

The Court will allow credit to petitioner

against funds taken: $44,659

LESS living expense credit as follows:

July 1984 - October 1984: $6,000

November 1984 - February 1985: 4,080

February 1985 - May 1985: 2,940

June 1985 - November 1985: 7,011

Sub-total: $20,031

PLUS expenses for getting set up in California: _2,500

Deduct support received from Resp. ($18,000)

Total credit to petitioner against

funds taken from Germany: 4,531

RECAPITULATION: 44,659

Credit amount to petitioner: (4,531)

Sub-total: $40,128

On the sum of $40,128, petitioner is assessed interest

from the time petitioner was ordered to deposit the community

funds into an interest-bearing account (November 19, 1985)

until October 4, 1989, a total of 47 months at ten percent

interest per annum:

$4,013 per year, or $334 per month x 47 months: $15,698

TOTAL CHARGE TO PETITIONER MONIES RECEIVED

AND INTEREST: $55 ,826

6. Respondent shall be awarded trom the community

the following property:

a. Page 5S, line 10: $ 650

b. Capital Preservation Fund: 700

APPENDIX A 4

c. Page 13, line 1: (no Cignovich credit) -()-

d. Page 1, line 13: (Settled, no charge) -0-

e. Militaria collection: 12,348

f. 1974 Mazda: 150

g. 1971 Van: 250

h. 1978 Mercedes Benz: -0-

i. 1975 Mercedes Benz: -0-

j. IRA of respondent: 10,098

k. Family residence, net: 88,385

Stipulated value: $117,000

LESS: Trust deed balance: ( 28,615)

Sub-total 112,581

Credits:(5,200) TOTAL CHARGE TO

RESPONDENT: $107,376

In order to equalize the division of property, $107,376

versus $55,826, Respondent shall pay to petitioner the sum of

$25,775, less the following:

$ 138.00 Reimbursement of children’s travel

473.00 One-half court reporter’s fee

840.00 Portion of JAMS’ bill paid by respondent

over and above his share :

500.00 Stipulated compromise on support arrearages

$1,951.00

Deduction of this total -- $1,951.00, leaves a balance of

$23,824.00. Said sum is due and payable not later than 5:00

p.m., November 15, 1990. However, it shall bear interest at

the rate of ten percent per annum from August 15, 1990, until

paid. The purpose of delay in the due date is to give the

respondent time to refinance the Apple Valley residence. if

[sic] respondent elects to refinance the Apple Valley residence

in order to pay the petitioner, there shall be deducted from the

sum due, one-half of the actual finance charge. If respondent

APPENDIX A 5

refinances the residence for an amount larger than the sum

due, respondent may charge the petitioner for a proportion of

the refinance charge as the sum due bears to the sum

borrowed.

In the event respondent fails to pay said sum ol

$23,824.00 to petitioner by November 15, 1990, he shall lose

the refinance option and the residence shall be listed for sale

by a broker chosen by the attorneys for the parties. The court

reserves jurisdiction over all aspects of the sale, including the

listing price, the selection of the broker, the placing of the

lock box on the door, disputes about the sale price and the

like, and including the jurisdiction to order the Clerk of the

Superior Court to execute any documents which any party is

unwilling or unable to sign.

In the event the residence is sold, any party making

payments unreimbursed by rental income or otherwise, shall

be paid from the first proceeds. Thereafter, from the net

proceeds of sale, the petitioner shall receive the said sum of

$23,824.00, plus any accrued interest. In the event the net

proceeds of sale exceed the sum of $88,385, petitioner shall

receive, in addition to the figure set forth above, plus interest,

one-half of said "excess" in excess of $88,385.00.

Actions pending sale: It appears to the court that, as a

result of the parties haggling, the rental management company

has been lost. The court, therefore, makes the following

order: Effective forthwith, and until sale or the completion of

the refinance of the property, Fumiko McLeod shall have the

sole management and control of the property, including

control of the rents and the obligation to make mortgage

payments. The court hereby orders that the tenant may be

instructed to forward rental payments directly to petitioner’s

attorney, Mr. Wernicke, and petitioner shall make all

payments upon the property subject to being reimbursed first

APPENDIX A 6

from rentals collected and thereafter from the refinance

proceeds or sale proceeds, as the case may be. Respondent is

enjoined and restrained from contacting the rental company,

or the tenant, and the tenant may be so notified. The court

concludes that petitioner and her attorney are in a great deal

better position to deal with the tenant than the respondent who

is out of the state.

7. The following real estate partnerships are

community property:

Name Manager

Rushfair Guardian

Montebello Guardian

E] Mirador Guardian

Sale Guardian

BWP II Boettchler

and are awarded to both parties. The respondend [sic] is

ordered to write to the partnerships and either cause them to

be liquified, with any monies due divided equally between the

partics, or obtain documentation in order to divide their

interest therein and register their interest with said

partnerships. Both parties shall cooperate in order to effectuate

his divison [sic]. The Court reserves jurisdiction in the event

that the division for some reason may not be effected. In the

event a division of any of the interests is not effected, the

respondent shall continue to manage that interest, but shall

account yearly to the petitioner at the time the K1 is received

and shall forward copies of all correspondence with the

partnership to the petitioner.

8. Furniture, furnishings and personal property shall be

awarded to the party in possession of same with the exception

that it was stipulated that certain items would be returned from

APPENDIX A 7

each party to the other. The court reserves jurisdiction to

enforce that stipulation.

MILITARY PENSION

9. The Court finds that the respondent, WILLIAM C.

MC LEOD Hl, is presently a Lt. Colonel in the United States

Air Force, Social Security No. 545-60-0157, and has been an

active member of said branch of the military every since June,

1965.

The Court finds that the petitioner, FUMIKO I. MC

LEOD, and the respondent, WILLIAM C. MC LEOD II,

married on March 31, 1972, and separated on May 31, 1984,

for a total length of marriage of 12 years, 2 months, or 146

months.

The Court further finds that during the time of April

1, 1981 and up to an including October 19, 1981, the parties

temporarily separated for a period of seven months, and thus

deducts said seven months from the total time the petitioner is

entitled to share in the retirement of the respondent.

The total length of marriage credited to the community

is 139 months.

The Court further finds that petitioner proprely [sic]

filed for dissolution in the State of California, that in

personam jurisdiction existed over the respondent in 1984, at

the date of filing the petition.

The Court further finds that on November 23, 1985,

the respondent made an appearance and stipulated to certain

orders which conferred his consent to this proceeding and all

orders resulting thereafter.

APPENDIX A 8

For that reason, the Court finds that by his appearance,

the respondent has waived any issues with respect to the

Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended.

The orders made by this Court herein as to the

marriage of petitioner, FUMIKO I. MC LEOD and

respondent, WILLIAM C. MC LEOD II, Social Security No.

545-60-0157, have been made in full compliane [sic] with the

Soldiers’ and Sailors’ Civil Relief Action of 1940, as

amended, 50 USC, App. Sec. 501, et. seq. The Court finds

that the retirement accrued during the term of service of

respondent, WILLIAM C. MC LEOD II, is community

property and divides the same by the following formula: 139

months of marriage divided by the number of months of total

service, equals percentage of community interest, divided by

two (2), equals percentage interest of petitioner in the

retirement net pay after 1408(a)(4) deductions of respondent,

WILLIAM C. MC LEOD II.

Said interest shall be directly payable to petitioner,

FUMIKO I. MC LEOD, from the United States Air

Force upon the actual retirement of respondent,

WILLIAM C. MC LEOD II, from the United States

Air Force (i.e., respondent begins to receive

retirement benefits), or at the earliest possible date

under which said retirement benefits could be directly

payable to petitioner, and continuing each and every

month the respondent receives said benefits.

Petitioner’s name/address: FUMIKO I. MCLEOD

479 Springbrook North

Irving, CA 92714

Respondent/Military member ane [sic] and address:

WILLIAM C. MC LEOD II

Social Security No.: 545-60-0157.

APPENDIX A 9

The Court retained jurisdiction over the issue of the

military retirement pay, to enforce the division herein

awarded, including but not limited to, a determination in case

here [sic] is a change in law, whether retirement shall be paid

out of gross or net pay.

ATTORNEYS’ FEES AND COSTS

10. Each party shall bear his or her own attorneys’

fees and costs in connection with this proceeding and shall pay

the bill incurred with JAMS and the reporter’s fee equally by

way of the adjustment made in the equalization amounts. This

order supersedes the previous Announcement of Intended

Decision and other orders because of respondent’s refusal to

comply with them, and the court’s inability to enforce the

judgment otherwise.

Provided, however: The Court feels compelled to

answer the complaint of petitioner’s attorney that the activities

of respondent subsequent to the close of evidence have

consisted in stalling, refusing to comply with the court’s

directions, and an attempt to introduce additional evidence,

and reargue issues already decided, and requests erroneous

and fraudulent orders. While not agreeing with counsel

entirely, the court concludes that the complaint has sufficient

merit to call for some further award of attorney’s fees.

Respondent is ordered to pay to petitioner’s attorney directly

the sum of One Thousand Dollars ($1,000.00) attorneys’ fees,

which shall be paid out of the refinance proceeds, or proceeds

from the sale of the house.

Additional Credit: The court by Minute Order

September 22, 1988, ordered that the community reimburse

the respondent for the fees of Mary Pedrosi. The court will

accept the representation of respondent’s counsel that the bill

was $1,400.00 and that no such reimbursement has been

APPENDIX A 10

made. The court will further assume that the intention of the

Minute Order is reimbursement for the bill and not just the

cost of typing the report. From the proceeds of sale or

refinance of the house therefor, respondent will be reimburse

the sum of $1,400.00 before the division of funds (i.e. the

community will reimburse the respondent, or if there is a

refinance sufficient only to pay off the petitioner, then the

amount due to equalize the division of community will be

reduced by $700.00.

IT IS SO ORDERED:

Dated: September 17, 1990

/s/ J.E.T. Rutter, Judge of

the Superior Court, Retired

Judge Pro Tem

APPENDIX A li

COURT OF APPEAL-4TH DIST,DIV.3

FILED

MAY 29 1992

Stephen M. Kelly, Clerk

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of )

FUMIKO and WILLIAM MCLEOD. ) G010337

)

) (Super.Ct.

FUMIKO I. MCLEOD, ) No.

Respondent, ) D290145)

Vv. )

WILLIAM C. MCLEOD, ) OPINION

Appellant. )

)

APPEAL from a judgment of the Superior Court of

Orange County, J.E.T. Rutter, Judge. (Retired judge of the

superior court sitting under assignment by the chairperson of

the Judicial Council.) Affirmed.

Douglas B. Cone for Appellant.

Peter H. Wernicke for Respondent.

William McLeod appeals from the judgment of

dissolution of his marriage to Fumiko McLeod, claiming the

trial court had no jurisdiction to divide his military retirement

pay. He contends the court erroneously based jurisdiction on

his general appearance and a traditional "minimum contacts"

analysis

rather than applying the statutory bases for

APPENDIX B ]

saciid ieee

jurisdiction under the Federal Uniform Services Former

Spouses’ Protection Act (10 U.S.C. § 1048) (FUSFSPA). We

find the court’s jurisdiction was proper under FUSFSPA and

affirm.

Bill and Fumiko were married in Tokyo in 1972 while

Bill was stationed there in the United States Air Force. In

1974, Bill was transferred to California. The parties bought a

house in Apple Valley and lived there for seven years, during

which time their two children were born. In 1981, Bill was

transferred to West Germany. The family moved again, but

kept the house as a rental property.

In 1984, Fumiko and the children returned to

California. Fumiko filed a petition for dissolution in San

Bernardino County on June 4, 1984, and obtained ex parte

temporary orders for custody, visitation and support. The

property declaration did not list Bill’s military retirement

benefits as an asset. After Bill was personally served in

Germany, he filed an affidavit claiming his right to a stay of

the proceedings under the Soldiers’ and Sailors’ Civil Relief

Act (50 U.S.C., Appen., § 501 et seq.) (Soldiers’ and Sailors’

Act).' On July 9, at the hearing on the order to show cause

re temporary orders, an attorney for Bill made a special

appearance requesting a stay under the Soldiers’ and Sailors’

Act. The court stayed the dissolution proceedings "until such

time as the court is petitioned to appoint counsel for [Bill]";

nonetheless, it made temporary orders for custody, visitation

and support.

' The Soldiers’ and Sailors’ Act provides no judgment

can be entered against a defendant in the military service

until the court appoints an attorney to represent his or her

interests (SO U.S.C., Appen., § 520), and that court

proceedings shall be stayed if the military service affects the

conduct thereof (SO U.S.C., Appen., § 521).

APPENDIX B 2

In October the court appointed counsel for Bill for

response to Fumiko’s request and issued a writ of execution

for unpaid temporary support. Bill wrote to the court,

asserting it lacked jurisdiction to proceed because of the

protection of the Soldiers’ and Sailors’ Act and objecting to

the appointment of an attorney "because it will be next to

impossible for him to protect my rights without my presence

in court." In January 1985, Bill’s appointed counsel made an

unsuccessful motion to quash the writ of execution based on

the Soldiers’ and Sailors’ Act and filed a response to the

dissolution petition.” An at-issue memorandum was filed and

the matter was set for trial on July 22, 1985. In August, Bill

substituted retained counsel and the trial was continued to

November 1985.

Bill filed another motion to quash the writ of execution

and to vacate or modify the temporary orders of July 9, 1984.

On November 23, 1985, Bill personally appeared for the

hearing on the motions. The parties stipulated to certain

temporary orders regarding visitation, support and the

management of community property and reserved the issue of

the validity of the July 9 orders to the time of trial.

Seventeen months passed. The parties disagreed

vehemently over visitation and child support and _ their

voluminous items of personal property; the trial was continued

several times by agreement. On April 20, 1987, a settlement

conference was scheduled, and Fumiko filed a settlement

statement which, for the first time, mentioned Bill’s military

retirement and listed it as a community asset subject to

division. The record contains no response by Bill. The

settlement conference was unsuccessful and trial was again

continued repeatedly by agreement of the parties. In July, Bill

> The response was filed without Bill’s authorization

and accordingly was not considered a general appearance at

the hearing on reserved issues in March 1989, discussed

post.

APPENDIX B 3

moved for modification of the visitation and child support

arrangements; he did not raise an objection to jurisdiction over

his military retirement either in his papers or at oral

argument.

The parties continued to bicker over visitation and

child support payments. In May 1988, venue was changed to

Orange County. In November, the matter was bifurcated and

the dissolution as to status was granted. Although Bill filed

numerous declarations with the court regarding a variety of

matters, including one setting forth his objections to California

jurisdiction and certain conditions under which he would agree

to dissolve the marriage in California, his military retirement

was not mentioned.

In March 1989, a hearing was held on the reserved

issue of the validity of the July 1984 temporary orders and

Bill’s rights under the Soldiers’ and Sailors’ Act. In his

supporting points and authoritics, Bill for the first time

mentioned his military retirement and argued the court had no

jurisdiction over it under federal law. The court refused to

discuss the retirement issue, however, stating, "I want the

record to be real clear, the issue of whether or not the court

has jurisdiction over the military pension was not a matter that

was reserved in 1985. So that’s not a motion that is before the

court....[[] It was never raised until you filed your points and

authorities today. But you never made any motion concerning

that. I reviewed everything that you have submitted." Bill’s

counsel concurred with the court’s observation.

The court found California had in personam

jurisdiction over Bill when the petition was filed in June 1984

based on his joint ownership of real property and bank

accounts here and his previous period of residence during

which the parties’ children were born. The court further found

the July 9, 1984, orders were void because the proceedings

had been stayed under the Soldiers’ and Sailors’ Act, but

Bill’s appearance and stipulation to the court’s orders on

November 21, 1985, was a general appearance and constituted

APPENDIX B 4

Bill’s consent to all subsequent proceedings. No urrearages for

support acc™ied between July 9, 1984, and November 23,

1985.

Nothing more was said about the military retirement

until trial, which was held seven months later, when both

parties briefed the question of the court’s jurisdiction over it.

The court exercised its jurisdiction over the benefits based on

the March 1989 finding of in personam jurisdiction and Bill’s

general appearance and resultant waiver of issues under the

Soldiers’ and Sailors’ Act. The court found the retirement

benefits that accrued during the 139 months of marriage were

community property and awarded Fumiko one-half of the

community property share, payable upon Bill’s actual

retirement. The court retained jurisdiction to enforce the

division of the benefits, "including but not limited to, a

determination in case [t]here is a change of law, whether

retirement shall be paid out of gross or net pay."

Bill correctly contends in personam jurisdiction and his

general appearance were insufficient bases for the trial court

to exercise jurisdiction over his military retirement benefits.

In McCarty v. McCarty (1981) 453 U.S. 210, the Supreme

Court held in the absence of federal legislation, state courts

lacked jurisdiction to order division of military retirement

benefits as part of a distribution of community property in

dissolution proceedings. In response to McCarty, Congress

enacted FUSFSPA, which authorizes state courts to treat

disposable retired or retainer pay of a member of the military

"either as property solely of the member or as property of the

member and his spouse in accordance with the law of the

jurisdiction of such court." (10 U.S.C. § 1408(c) (1).)

Congress, however, set forth clear and express

jurisdictional limitations, apparently in response to potential

"forum-shopping" spouses seeking states with favorable

divorce laws but with which the pensioner has had few

contacts. (Mansell v. Mansell (1989) 490 U.S. 581, 591. See

APPENDIX B 5

i eae li inact

also In re Marriage of Hattis (1987) 196 Cal.App.3d 1162,

1167.) "A court may not treat the disposable retired pay of a

member... 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." (10 U.S.C. § 1408(c)

(4).) Because Congress has expressly dictated a more

restrictive standard, the "minimum contacts" basis for personal

jurisdiction under state law will not support a court order

dividing federal military pension rights. (In re Marriage of

Hattis, supra, 196 Cal.App.3d at p. 1167; Tarvin v. Tarvin

(1986) 187 Cal.App.3d 56. But see In re Marriage of

Jacobson (1984) 161 Cal.App.3d 465.)

Likewise, a general appearance by a party in a2

California dissolution action will not by itself confer

jurisdiction over that party’s military retirement benefits.

"[T]he failure to object to California’s jurisdiction over all

aspects of a divorce cannot be interpreted as an agreement the

narrower requirements of FUSFSPA have been satisfied or

need not be met. Rather,... a member of the military... may

both agree California has jurisdiction over nonpension issues

and at the same time argue California has no power to divide

his or her military pension." (In re Marriage of Tucker (1991)

226 Cal.App.3d 1249, 1256.)

Ill

Notwithstanding the foregoing authorities, Fumiko

claims Bill’s failure to object specifically to the court’s

jurisdiction over the military retirement benefits constitutes his

consent to that jurisdiction under FUSFSPA.° We agree.

In re Marriage of Tucker, supra, 226 Cal.App.3d 1249

held a military spouse was not required to object to the court’s

power over his pension by filing a motion to quash. "Since the

* The parties agree Bill is neither a resident nor a

domiciliary of California.

APPENDIX B 6

Statute was designed to provide protection which is not

provided by the due process clause of the federal Constitution,

and... applies even where a court has personal jurisdiction

over a member of the military, it is more akin to the doctrine

of forum non conveniens than to any lack of personal

jurisdiction." (Id. at p. 1257.) In finding the military spouse

had properly objected so as to negate consent to jurisdiction,

however, the Tucker court emphasized that he clearly and

consistently "raised the issue at every stage of the

proceedings--in his initial conversation with counsel, in the

Stipulated order and order to show cause and in the response."

(Id. at p. 1258.)

Here, Fumiko did not list the military retirement

benefits in her property declaration; and we do not suggest

that Bill had an affirmative duty to raise the issue. But in

contrast to the spouse in Tucker, Bill continued to

aggressively litigate the case for over two years after Fumiko

listed the benefits as an asset in her settlement statement

without mentioning his objection to its division. In our view,

this amounts to the consent contemplated by FUSFSPA.

Bill contends his repeated objections to the proceedings

under the Soldiers’ and Sailors’ Act were sufficient to

preclude a finding of consent under FUSFSPA. But the

Soldiers’ and Sailors’ Act provides for "the temporary

suspension of legal proceedings and transactions which may

prejudice the civil rights of persons in [military] service...."

(50 U.S.C., Appen., § 510.) These protections, enacted in

1940, are addressed to jurisdiction generally and cannot be

interpreted to apply to the specific requirements of FUSFSPA.

Bill complains even if the trial court had power over

his retirement benefits, it erred by reserving jurisdiction to

effect possible future changes in the law, citing In re Marriage

of Bergman (1985) 168 Cal.App.3d 742. The Bergman court

stated the trial court could not fail to divide the community

interest in the wife’s pension and simply retain jurisdiction to

APPENDIX B 7

do so when she became eligible to receive benetits. It found,

however, that the trial court had made a present division of

the community interest in the plan by awarding to each party

"{o}ne-half of the community interest in the California State

Teachers’ Retirement Benefits in [wife’s] name" and reserving

jurisdiction "to divide said benefits which shall be distributed

at the earliest date when [wife] is eligible to draw her

pension." (Id. at p. 758.) The order here similarly made a

present division of Bill’s retirement benefits. Furthermore,

recent frequent changes in the law relating to military pensions

suggest any prudent practitioner should consider requesting the

court’s reservation of jurisdiction such as was done here. (See

In re Marriage of Walters (1990) 220 Cal.App.3d 1062.)

Bill’s final contentions attack FUSFSPA itself. He

asserts Congress has no power to allow the division of

military retirement pay before retirement because it is earned

when paid as reduced compensation for current services. But

the California Supreme Court has disagreed, holding

"’military retirement pay must be realistically viewed as

compensation for past, not present, services.’" (Casas v.

Thompson (1986) 42 Cal.3d 131, 142, fn. 5, quoting In re

Marriage of Fithian (1974) 10 Cal.3d 592, 604.)

Lastly, Bill challenges FUSFSPA’s constitutionality,

claiming it accomplishes an impermissible taking of a property

right that married military personnel had under McCarty. But

FUSFSPA has been applied retroactively to the date of the

McCarty decision and pre-McCarty law held such benefits to

be community property. (In re Marriage of Fithian, supra, 10

Cal.3d 592.) "’[T]he fact is that no case within our memory

has received less retroactive application than McCarty....

[Flor most purposes, McCarty not only is not the law but

never really was.’" (Casas v. Thompson, supra, 42 Cal.3d at

p. 141, quoting Aloy v. Mash (1985) 38 Cal.3d 413, 421-

422.) Thus, FUSFSPA did not divest Bill of any property

rights.

APPENDIX B 8

The judgment is affirmed. Respondent is entitled to

costs on appeal.

WALLIN, J.

WE CONCUR:

SILLS, P. J.

SONENSHINE, J.

APPENDIX B 9

Court of Appeal-4th Dis.Div. 3

FILED

Jun 29 1992

Deputy Clerk

COURT OF APPEAL - STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

Division Three

MC LEOD, FUMIKO |

Vv.

MC LEOD, WILLIAM C.

IN RE THE MARRIAGE OF MC LEOD

G010337

Orange County No. D-290145

THE COURT:

The petiver for rehearing is DENIED.

s/ WALLIN, J.

We Concur:

/s/ SILLS, P.J.

SONENSHINE, J.

cc: Orange County Clerk

All Counsel

APPENDIX C

aerate ere

SUPREME COURT

FILED

AUG 20 1992

Robert Wandruff Clerk

Fourth Appellate District, Division Three, No. G0Q10337

S027587

IN THE SUPREME COURT OF THE STATE OF

CALIFORNIA

In Re the Marriage of FUMIKO AND WILLIAM MCLEOD

FUMIKO I. MCLEOD, Respondent

WILLIAM C. MCLEOD, Appellant

Appellant’s petition for review DENIED.

Baxter, J. is of the opinion the petition should be granted.

Lucas

Chief Justice

APPENDIX D

TITLE 10, U.S.C.A. §1408

§1408. Payment of retired pay in compliance with

court orders

(a) DEFINITIONS.-- IN THIS SECTION:

(1) The term "Court" means--

(A) any court of competent jurisdiction of any

State, the District of Columbia, the Commonwealth of Puerto

Rico, Guam, American Samoa, the Virgin Islands, the

Northern Mariana Islands, and the Trust Territory of the

Pacitic Islands;

(B) any court of the United States (as defined

in section 451 of title 28) having competent jurisdiction; and

foreign country with which the United States has an agreement

requiring the United States to honor any court order of such

country.

(2) The term "court order" means a final decree of

divorce, dissolution, annulment, or legal separation issued by

a court, or a court ordered, ratified, or approved property

settlement incident to such a decree (including a final decree

modifying the terms of a previously issued decree of divorce,

dissolution, annulment, or legal separation, or a court ordered,

ratified, or approved property settlement incident to such

previously issued decree), which--

(A) is issued in accordance with the laws of the

jurisdiction of that court;

(B) provides for--

APPENDIX - STATUTES

| (i) payment of child support (as defined

in section 462(b) of the Social Security Act (42 U.S.C.

662(b)));

(ii) payment of alimony (as defined in

section 462(c) of the Social Security Act (42 U.S.C. 662(c)));

(iii) division of property (including a

division of community property); and

specifically provides for the payment of an amount, expressed

in dollars or as a percentage of disposable retired pay, from

the disposable retired pay of a member to the spouse or

former spouse of that member.

(3) The term "final decree" means a decree from which

no appeal may be taken or from which no appeal has been

taken within the time allowed for taking such appeals under

the laws applicable to such appeals, or a decree from which

timely appeal has been taken and such appeal has been finally

decided under the laws applicable to such appeals.

(4) The term "disposable retired pay" means the total

monthly retired pay to which a member is entitled less

amounts which-

(A) are owed by that member to the United

States for previous overpayments of retired pay and for

recoupments required by law resulting from entitlement to

retired pay;

(B) are deducted from the retired pay of such

member as a result of forfeitures of retired pay ordered by a

court-martial or as a result of a waiver of retired pay required

APPENDIX - STATUTES

by law in order to receive compensation under title 5 or title

33;

pay under chapter 61 of this title, are equal to the amount of

retired pay of the member under that chapter computed using

the percentage of the member’s disability on the date when the

member was retired (or the date on which the member’s name

was placed on the temporary disability retired list); or

(D) are deducted because of an election under

chapter 73 of this title to provide an annuity to a spouse or

former spouse to whom payment of a portion of such

member’s retired or retainer pay is being made pursuant to a

court order under this section.

(5) The term "member" includes a former member

entitled to retired pay under section 1331 of this title.

(6) The term "spouse or former spouse" means the

husband or wife, or former husband or wife, respectively, of

a member who, on or before the date of a court order, was

married to that member.

(7) The term ’retired pay’ includes retainer pay.

(b) EFFECTIVE SERVICE OF PROCESS.-- FOR THE

PURPOSES OF THIS SECTION--

(1) service of a court order is effective if--

(A) an appropriate agent of the Secretary

concerned designated for receipt of service of court orders

under regulations prescribed pursuant to subsection (h) or, if

no agent has been so designated, the Secretary concerned, is

APPENDIX - STATUTES

SS eT ae

personally served or is served by certified or registered maii,

return receipt requested;

(B) the court order is regular on its face;

with the court order identify the member concerned and

include, if possible, the social security number of such

member; and

(D) the court order or other documents served

with the court order certify that the rights of the member

under the

Soldiers’ and Sailors’ Civil Relief Act of 1940 (S50

U.S.C.App. 501 et seq.) were observed; and

2) a court order is regular on its face if the order--

(A) is issued by a court of competent

jurisdiction;

(B) is legal in form; and

reasonable notice that it is issued without authority of law.

AS PROPERTY OF THE MEMBER AND SPOUSE.--

(1) Subject to the limitations of this section, a court

may treat disposable retired pay payable to a member for pay

periods beginning after June 25, 1981, either as property

solely of the member or as property of the member and his

spouse in accordance with the law of the jurisdiction of such

court. A court may not treat retired pay as property in any

APPENDIX - STATUTES

proceeding to divide or partition any amount of retired pay of

a member as the property of the member and the member’s

spouse or former spouse if a final decree of divorce,

dissolution, annulment, or legal separation (including a court

ordered, ratified, or approved property settlement incident to

such decree) affecting the member and the member’s spouse

or former spouse (A) was issued before June 25, 1981, and

(B) did not treat (or reserve jurisdiction to treat) any amount

of retired pay of the member as property of the member and

the member’s spouse or former spouse.

(2) Notwithstanding any other provision of law, this

section does not create any right, title, or interest which can

be sold, assigned, transferred, or otherwise disposed of

(including by inheritance) by a spouse or former spouse.

Payments by the Secretary concerned under subsection (d) to

a spouse or former spouse with respect to a division of retired

pay as the property of a member and the member’s spouse

under this subsection may not be treated as amounts received

as retired pay for service in the uniformed services.

(3) This section does not authorize any court to order

a member to apply for retirement or retire at a particular time

in order to effectuate any payment under this section.

(4) A court may not treat the disposable retired or

retainer pay 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.

APPENDIX - STATUTES

(d) PAYMENTS BY SECRETARY CONCERNED TO

SPOUSE OR FORMER SPOUSE.--

(1) After effective service on the Secretary concerned

of a court order providing for the payment of child support or

alimony or, with respect to a division of property, specifically

providing for the payment of an amount of the disposable

retired or retainer pay from a member to the spouse or a

former spouse of the member, the Secretary shall make

payments (subject to the limitations of this section) from the

disposable retired or retainer pay of the member to the spouse

or former spouse in an amount sufficient to satisfy the amount

of child support and alimony set forth in the court order and,

with respect to a division of property, in the amount of

disposable retired pay specifically provided for in the court

order. In the case of a member entitled to receive retired pay

on the date of the effective service of the court order, such

payments shall begin not later than 90 days after the date of

effective service. In the case of a member not entitled to

receive retired pay on the date of the effective service of the

court order, such payments shall begin not later than 90 days

after the date on which the member first becomes entitled to

receive retired pay.

(2) If the spouse or former spouse to whom payments

are to be made under this section was not married to the

member for a period of 10 years or more during which the

member performed at least 10 years of service creditable in

determining the member’s eligibility for retired pay, payments

may not be made under this section to the extent that they

include an amount resulting from the treatment by the court

under subsection (c) of disposable retired pay of the member

as property of the member or property of the member and his

spouse.

APPENDIX - STATUTES

——O eae

(3) Payments under this section shall not be made more

frequently than once each month, and the Secretary concerned

shall not be required to vary normal pay and disbursement

cycles for retired pay in order to comply with a court order.

(4) Payments from the disposable retired pay of a

member pursuant to this section shall terminate in accordance

with the terms of the applicable court order, but not later than

the date of the death of the member or the date of the death of

the spouse or former spouse to whom payments are being

made, whichever occurs first.

(5) If a court order described in paragraph (1) provides

for a division of property (including a division of community

property) in addition to an amount of child support or alimony

or the payment of an amount of disposable retired pay as the

result of the court’s treatment of such pay under subsection (c)

as property of the member and his spouse, the Secretary

concerned shall pay (subject to the limitations of this section)

from the disposable retired pay of the member to the spouse

or former spouse of the member, any part of the amount

payable to the spouse or former spouse under the division of

property upon effective service of a final court order of

garnishment of such amount from such retired pay.

(1) The total amount of the disposable retired pay of a

member payable under all court orders pursuant to subsection

(2) In the event of effective service of more than one

court order which provide for payment to a spouse and one or

more former spouses or to more than one former spouse, the

disposable retired pay of the member shall be used to satisfy

(subject to the limitations of paragraph (1)) such court orders

APPENDIX - STATUTES

on a first-come, first-served basis. Such court orders shall be

satisfied (subject to the limitations of paragraph (1)) out of

that amount of disposable retired pay which remains after the

satisfaction of all court orders which have been previously

served.

(3) (A) In the event of effective service of

conflicting court orders under this section which assert to

direct that different amounts be paid during a month to the

same spouse or former spouse of the same member, the

Secretary concerned shall--

(i) pay to that spouse from the member’s

disposable retired pay the least amount directed to be paid

during that month by any such conflicting court order, but not

more than the amount of disposable retired, pay which

remains available for payment of such court orders based on

when such court orders were effectively served and the

limitations of paragraph (1) and subparagraph (B) of paragraph

(4);

(ii) retain an amount of disposable

retired pay that is equal to the lesser of--

(1) the difference between the

largest amount required by any conflicting court order to be

paid to the spouse or former spouse and the amount payable

to the spouse or former spouse under clause (i); and

(Il) the amount of disposable

retired pay which remains available for payment of any

conflicting court order based on when such court order was

effectively served and the limitations of paragraph (1) and

subparagraph (B) of paragraph (4); and

APPENDIX - STATUTES

(iii) pay to that member the amount

which is equal to the amount of that member’s disposable

retired pay (less any amount paid during such month pursuant

to legal process served under section 459 of the Social

Security Act (42 U.S.C. 659) and any amount paid during

such month pursuant to court orders effectively served under

this section, other than such conflicting court orders) minus--

(I) the amount of disposable

retired pay paid under clause (i); and

(Il) the amount of disposable

retired pay retained under clause (ii).

(B) The Secretary concerned shall hold the

amount retained under clause (ii) of subparagraph (a) until

such time as that Secretary is provided with a court order

which has been certified by the member and the spouse or

former spouse to be valid and applicable to the retained

amount. Upon being provided with such an order, the

Secretary shall pay the retaincd amount in accordance with the

order.

(4) (A) In the event of effective service of a court

order under this section and the service of legal process

pursuant to section 459 of the Social Security Act (42 U.S.C.

659), both of which provide for payments during a month

from the same member, satisfaction of such court orders and

legal process from the retired pay of the member shall be on

a first-come, first-serve basis. Such court orders and legal

process shall be satisfied out of moneys which are subject to

such orders and legal process and which remain available in

accordance with the limitations of paragraph (1) and

subparagraph (B) of this paragraph during such month after

the satisfaction of all court orders or legal process which have

been previously served.

APPENDIX - STATUTES

rr,

(B) Notwithstanding any other provision of law,

the total amount of the disposable retired pay of a member

payable by the Secretary concerned under all court orders

pursuant to this section and all legal processes pursuant to

section 459 of the Social Security Act (42 U.S.C. 659) with

respect to a member may not exceed 65 percent of the amount

of the retired pay payable to such member that is considered

under section 462 of the Social Security Act (42 U.S.C. 662)

to be remuneration for employment that is payable by the

United States.

(5) A court order which itself or because of previously

served court orders provides for the payment of an amount

which exceeds the amount of disposable retired pay available

for payment because of the limit set forth in paragraph (1), or

which, because of previously served court orders or legal

process previously served under section 459 of the Social

Security Act (42 U.S.C. 659), provides for payment of an

amount that exceeds the maximum amount permitted under

paragraph (1) or subparagraph (B) of paragraph (4), shall not

be considered to be irregular on its face solely for that reason.

However, such order shall be considered to be fully satisfied

for purposes of this section by the payment to the spouse or

former spouse of the maximum amount of disposable retired

pay permitted under paragraph (1) and subparagraph (B) of

paragraph (4).

(6) Nothing in this section shall be construed to relieve

a member of liability for the payment of alimony, child

support, or other payments required by a court order on the

grounds that payments made out of disposable retired pay

under this section have been made in the maximum amount

permitted under paragraph (1) or subparagraph (B) of

paragraph (4). Any such unsatisfied obligation of a member

may be enforced by any means available under law other than

the means provided under this section in any case in which the

APPENDIX - STATUTES

maximum amount permitted under paragraph (1) has been paid

and under section 459 of the Social Security Act (42 U.S.C.

659) in any case in which the maximum amount permitted

under subparagraph (B) of paragraph (4) has been paid.

(f) IMMUNITY OF OFFICERS AND EMPLOYEES OF

UNITED STATES.--

(1) The United States and any officer or employee of

the United States shall not be liable with respect to any

payment made from retired pay to any member, spouse, or

former spouse pursuant to a court order that is regular on its

face if such payment is made in accordance with this section

and the regulations prescribed pursuant to subsection (h).

(2) An officer or employee of the United States who,

under regulations prescribed pursuant to subsection (h), has

the duty to respond to interrogatories shall not be subject

under any law to any disciplinary action or civil or criminal

liability or penalty for, or because of, any disclosure of

information made by him in carrying out any of his duties

which directly or indirectly pertain to answering such

interrogatories.

(g) NOTICE TO MEMBER OF SERVICE OF COURT

ORDER ON SECRETARY CONCERNED.--

A person receiving effective service of a court order

under this section shall, as soon as possible, but not later than

30 days after the date on which effective service is made, send

a written notice of such court order (together with a copy of

such order) to the member affected by the court order at his

last known address.

(h) REGULATIONS.--

APPENDIX - STATUTES

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The Secretaries concerned shall prescribe uniform

regulations for the administration of this section.

California Civil Code §4800(a). Division of Community

Estate.

(a) Except upon the written agreement of the parties,

or on oral stipulation of the parties in open court, or as

otherwise provided in this section, the court shall, cither in its

judgment of dissolution of marriage, in its judgment decreeing

the legal separation of the parties, or at a later time if it

expressly reserves jurisdiction to make such a property divi-

sion, divide the community estate of the parties equally. For

purposes of making this division, the court shall value the

assets and liabilities as near as practicable to the time of trial,

except that, upon 30 days’ notice by the moving party to the

other party, the court for good cause shown may value all or

any portion of the assets and liabilities at a date after

separation and prior to trial to accomplish an equal division of

the community estate of the parties in an equitable manner.

For the purposes of division and in confirming or

assigning the liabilities of the parties for which the community

estate is liable, the court shall characterize liabilities as

separate or community and confirm or assign them to the

parties in accordance with subdivision (c).

As used in this section, "community estate" includes

both the community and quasi-community assets and liabilities

of the parties.

APPENDIX - STATUTES

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.