# Petition for Writ of Certiorari — McLeod v. McLeod

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 506 U.S. 1079

## Text

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
EE ea os kg 4k os G8 Ko Ria 6 9 8 8 a ew ii
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...

iV

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,
© Wee. SIO CIGee) «6c be ws ee es 8

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.

10

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,

11

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).)

12

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

tO

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

a

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.

I

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."

II

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.

IV

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.)
Vv

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
y

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

(C) any court of competent jurisdiction of a
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
l

EE

| (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)));
or

(iii) division of property (including a
division of community property); and

(C) in the case of a division of property,
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
2

by law in order to receive compensation under title 5 or title
33;

(C) in the case of a member entitled to retired
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
3

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;

(C) the court order or other documents served
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

(C) includes nothing on its face that provides
reasonable notice that it is issued without authority of law.

(c) AUTHORITY FOR COURT TO TREAT RETIRED PAT
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
4

ee

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
5

es

(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
6

a

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(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.

(c) LIMITATIONS. --

(1) The total amount of the disposable retired pay of a
member payable under all court orders pursuant to subsection
(c) may not exceed 50 percent of such disposable retired pay.

(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
7

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
&

ee

(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
9

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
10

ee

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1651%3A1. Public record. Not legal advice.