Blackson v. Blackson

COURT OF APPEALS OF VIRGINIA

Present: Judges Clements, Agee * and Felton
Argued at Richmond, Virginia

TRENT BLACKSON
OPINION BY
v. Record No. 1497-02-2 JUDGE WALTER S. FELTON, JR.
MAY 6, 2003
ANDREA LEE BLACKSON

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge

Charles E. Powers (Harris W. Leiner;
Barnes & Batzli, P.C., on brief), for
appellant.

No brief or argument for appellee.

Trent Blackson ("husband") contends on appeal that the trial

court (1) did not have subject matter jurisdiction over the

divorce proceedings because neither party qualified as a bona

fide resident and domiciliary of Virginia under any provision of

Code § 20-97; (2) did not have personal jurisdiction over him

because he was induced into the Commonwealth by the actions of

Andrea Blackson ("wife"), and would not have been present

otherwise; (3) erred in dividing his military pension because he

made continuous objection to the jurisdiction of the

Commonwealth's courts and never consented to their jurisdiction;

* Justice Agee participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
and (4) abused its discretion in awarding attorney's fees to

wife. For the following reasons, we affirm the judgment of the

trial court.

I. BACKGROUND

A. MARRIAGE AND FILING FOR DIVORCE

On February 14, 1987, husband and wife were married in

Honolulu, Hawaii, where husband was stationed with the United

States Marine Corps. Two children were born of the marriage.

One child was born on April 21, 1989 and the other born on

November 9, 1992. Husband remained an active duty Marine Corps

officer throughout the marriage.

In June 1999, the Blacksons moved from Virginia Beach,

Virginia, where they had lived for three years, to Guantanamo

Bay, Cuba. The parties lived in Guantanamo Bay for

approximately one year. On April 26, 2000, husband received

official orders to report to Camp Pendleton, California. The

orders separated him from Guantanamo Bay, Cuba on May 9, 2000

with a reporting date at Camp Pendleton, California no later

than June 11, 2000. He reported for duty at Camp Pendleton on

May 30, 2000.

Upon receiving his orders to report to Camp Pendleton, wife

told husband that she and the children would be moving to

California with him. However, she informed other adult family

members that she intended to return to Virginia with the

children and not to accompany husband to California, because of

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his admitted infidelity and a deteriorating marriage

relationship. In discussing the pending move, the Blacksons

ostensibly agreed that husband would report to Camp Pendleton in

advance of the family in order for the children to finish the

school year. The plan was for wife, in June, to pack and ship

their household items to California, travel to Virginia with the

children to pick up the vehicle they left there, and drive

cross-country to reunite with him.

On June 2, 2000, wife and the two children arrived in

Virginia, retrieved the vehicle and drove to Richmond. Upon

arriving in Richmond, she attempted to divert a portion of the

household goods from the planned destination in California to a

new location in Midlothian, Virginia. On June 9, 2000, seven

days after arriving in Virginia, wife filed for divorce.

Sometime between June 2 and June 9, 2000, an administrative

officer at Guantanamo Bay contacted husband regarding the

shipment of the household goods. He informed husband that his

wife was attempting to divert a portion of the shipment from its

California destination. In response, husband contacted wife and

learned that she did not intend to go to California, but

intended to remain with the children in Virginia. As a result,

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on June 12, 2000, he traveled to Virginia where he was served

with divorce pleadings. 1

B. SPECIAL APPEARANCE

On June 15, 2000, husband filed a notice of special

appearance with the trial court. A hearing was held the same

day regarding whether the trial court could exercise subject

matter and personal jurisdiction in this case. As to subject

matter jurisdiction, husband asserted that neither he nor wife

were residents of or domiciled in Virginia for the purposes of a

divorce proceeding. He argued that neither of them owned real

property in Virginia; that Texas was their home of record; and

that they filed their taxes jointly in Texas. In addition, he

asserted that the provisions of Code § 20-97(3) were not met to

establish subject matter jurisdiction in the trial court.

According to husband, prior to moving to Cuba, the parties

lived in Virginia Beach for three years, satisfying the

requirement of Code § 20-97(3)(ii). However, on the date the

divorce suit was filed, he was not "stationed in any territory

or foreign country," as required by Code § 20-97(3)(i). He was

stationed at Camp Pendleton, California, where he reported for

duty on May 30, 2000, when wife filed the suit for divorce on

June 9, 2000.

1
Husband was personally served with the bill of complaint
while temporarily residing in the Chesterfield County jail for
allegedly violating a protective order obtained by wife.

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 As to the issue of personal jurisdiction, husband asserted

that the court lacked personal jurisdiction over him (despite

personal service of process within the Commonwealth) because

wife wrongfully induced him to come into the Commonwealth. He

stated that, by using the children as bait, wife "dragged him"

into the Commonwealth primarily to serve him with process in the

divorce proceedings.

In response to husband's arguments, wife asserted that, for

the purposes of establishing subject matter jurisdiction, both

parties were bona fide residents of Virginia. She presented the

following evidence: (1) one of the family's vehicles was still

registered, licensed and titled in Virginia; (2) each of them

possessed a Virginia driver's license, even while they lived in

Cuba; (3) they held accounts in Virginia banks; (4) she had a

brother, sister, and brother-in-law living in Virginia; (5)

prior to her marriage, she filed taxes in Virginia; (6) she

lived in Virginia for three years prior to moving to Cuba and

returned to Virginia to re-establish her residency; (7) when she

left Virginia to go to Cuba, she left solely because of her

husband's military orders; (8) she informed her adult family

members that she intended to return to Virginia and not

accompany husband to California; (9) husband's orders reflect

that he was detached from Cuba on May 9, 2000 and that he was to

report for duty in California no later than June 11, 2000,

however, wife asserted there is no evidence that he reported

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prior to that date; (10) she arrived back in Virginia on June 2,

2000 and has not left Virginia since that date; and (11) she has

no break in her Virginia residency, outside of her husband's

military orders.

Wife testified that when she moved to Guantanamo Bay, it

was her intent to accompany her husband there. However, when

she left Guantanamo Bay, her intent was to return to Virginia,

not to go to California. She asserted that in November 1999,

five months after leaving Virginia to go to Cuba and after

learning of her husband's infidelity, she decided to divorce

husband and return to Virginia with the children. During

questioning, wife conceded that she and husband had registered

to vote in Texas because of the ease of absentee voting for

military personnel. She further conceded that during the course

of their marriage they filed taxes jointly in Texas because of

the favorable income tax advantage the state offers for military

personnel.

As to personal jurisdiction, wife argued that she did not

lure, trick, invite or induce husband to Virginia. She asserted

that he came to Virginia on his own accord and without

invitation from her. He was to be served with the divorce

proceedings in California, but because of his voluntary

appearance in Virginia, he was served at the Chesterfield County

jail, after trespassing at his brother-in-law's house in

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violation of a protective order. Consequently, she asserts that

personal service and jurisdiction were valid.

The trial court found after the ore tenus hearing that it

had both subject matter and personal jurisdiction over the

parties and the marriage. The court entered its order on August

1, 2000, nunc pro tunc June 15, 2000, the date of the ore tenus

hearing. After the trial court's announced finding at the ore

tenus hearing, but prior to the entry of the order, husband

filed an answer and cross-bill to wife's bill of complaint. In

his cross-bill, husband requested the court to grant him a

divorce on multiple grounds, that it make equitable distribution

of the parties' property, and award child custody to him, all

subject to his continuing objection to personal and subject

matter jurisdiction.

C. DISCOVERY AND TRIAL

On October 5, 2000, husband propounded discovery to wife.

For a period of approximately eight months, wife failed to

timely respond to several discovery requests by husband. On

April 18, 2001, the trial court entered a motion to compel

discovery. Wife again failed to respond to the discovery

request. 2 As a result, husband filed a motion for sanctions.

Discovery responses were eventually delivered to husband on June

2
Wife asserted in her defense that much of the material she
needed to respond to the discovery requests was located in a
storage unit in California, under husband's sole control.

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19, 2001. On May 30, 2001, wife propounded discovery on

husband. He delivered his response on June 19, 2001.

On May 10, 2002, the trial court entered a final decree of

divorce, nunc pro tunc to February 7, 2002, the date the trial

judge issued his opinion letter. The order, among other things,

granted wife a divorce from husband, equitably distributed the

marital property, awarded wife spousal and child support,

awarded wife a fifty percent interest in the marital portion of

husband's military retirement plan, ordered husband to make wife

the irrevocable beneficiary of his military survivor plan, and

awarded wife $20,000 in attorney's fees. 3 Husband appeals.

II. SUBJECT MATTER JURISDICTION

We first consider whether the trial court acquired subject

matter jurisdiction over the parties and their marriage. At the

conclusion of the June 15, 2000 hearing pursuant to husband's

special appearance, the trial court found that it had subject

matter jurisdiction over the divorce proceedings. It stated:

There is compliance with the statutory
provisions that there was no break in the
residency of the plaintiff in this matter
based upon her following Mr. Blackson-Major
Blackson to Guantanamo Bay Cuba, for the
purposes of his military duties.
Jurisdiction is proper . . . .

3
The trial court had previously awarded the parties joint
legal custody of their minor children with physical custody
awarded to wife.

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 Husband contends that the trial court erred in finding that

it possessed subject matter jurisdiction on the grounds that

wife qualified as a bona fide resident and domiciliary of

Virginia for the requisite time period. We disagree.

A. STANDARD OF REVIEW

The issue of subject matter jurisdiction in a divorce

proceeding requires a determination of both domicile and bona

fide residency. That determination presents a mixed question of

law and fact, reviewable on appeal. Adoteye v. Adoteye, 32

Va. App. 221, 226, 527 S.E.2d 453, 456 (2000). We give great

deference to the trial court's factual findings and view the

facts in the light most favorable to the prevailing party below,

in order to review the trial court's application of the law to

the facts. Caplan v. Bogard, 264 Va. 219, 225, 563 S.E.2d 719,

722 (2002).

Code § 20-97 provides:

No suit for annulling a marriage or for
divorce shall be maintainable, unless one of
the parties is and has been an actual bona
fide resident and domiciliary of this
Commonwealth for at least six months
preceding the commencement of the
suit . . . . 4

"The words 'domiciled' and 'resident' are technical words,

and, according to the usual rule of construction of statutes,

are presumed to have been used in their technical sense. This

4
Based on the facts of the case before us, we conclude that
subsections 1-4 of Code § 20-97 are inapplicable.

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is especially true where both words are used in the same section

of the statute." Towson v. Towson, 126 Va. 640, 651, 102 S.E.

48, 52 (1920).

There is . . . a wide distinction
between domicile and residence, recognized
by the most approved authorities everywhere.
Domicile is defined to be a residence at a
particular place, accompanied with positive
or presumptive proof of an intention to
remain there for an unlimited time. To
constitute a domicile, two things must
concur - first, residence; secondly, the
intention to remain there.

Long v. Ryan, 71 Va. (30 Gratt.) 718, 719 (1878) (emphasis in

the original). "'Mere change of place is not change of

domicile. Mere absence from a fixed home, however long

continued, cannot work the change. There must be the

[intention] to change the prior domicile for another. . . .

Until the new domicile is acquired, the old one remains

. . . .'" Cooper's Adm'r v. Commonwealth, 121 Va. 338, 347, 93

S.E. 680, 682 (1917) (quoting Lindsay v. Murphy, 76 Va. 428, 430

(1882)).

Within the purview of [Code § 20-97], . . .
to have been an "actual bona fide resident
of this State" for [six months] preceding
the institution of a suit for divorce, means
to have had in this State throughout that
period an actual bona fide permanent abode,
as contradistinguished from a sojourn, or
transitory abode in this State or elsewhere.
The plaintiff need not have been physically
present in Virginia every day during that
period; but it is essential that, during
such part of that year as he was absent from
Virginia, he has actually maintained in good

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 faith at least a locality somewhere in
Virginia as his permanent abode.

* * * * * * *

If a person, who has theretofore in good
faith established and is then maintaining a
permanent abode in the State, goes from the
State, and while absent therefrom
continuously in good faith maintains that,
or some other place or locality in the
State, as and for his permanent abode, the
establishment of a sojourn, or transitory
abode, outside the State will not (so long
as his physical residence elsewhere is
essentially transitory or a sojourning) put
an end to his being an "actual bona fide
resident of this State" within the meaning
of [Code § 20-97]. This is true even though
his absence from the State be of long
duration.

Hiles v. Hiles, 164 Va. 131, 137-38, 178 S.E. 913, 915-16

(1935).

B. DOMICILE

When wife filed for divorce on June 9, 2000, she satisfied

the domiciliary requirement of Code § 20-97. She re-established

her domicile, indeed if she ever lost it. 5 All the foregoing

facts were sufficient indicia to establish her residency in

Virginia and her intent to stay in Virginia for an unlimited

time.

5
Pre-marital domicile is a factor for the trial court to
consider in determining the present claim of domicile. Prior to
her marriage, wife resided in Lorton, Virginia. She moved to
Virginia when she was in high school and continued to reside in
Virginia until she married husband at age twenty-five. She
owned a townhouse, worked in Virginia, registered her car in
Virginia, paid taxes in Virginia, and registered to vote in
Virginia.

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 At her request, husband arranged to be transferred to

Virginia to permit wife to be near her sister, who was suffering

from a terminal illness. During the succeeding three years,

they resided in Virginia Beach. The couple registered their

motor vehicles in Virginia. Wife also registered to vote in

Virginia in order to vote in the 1996 Presidential election.

Husband asserted that wife was not domiciled in Virginia at

the time she initiated the divorce proceedings. He asked the

trial court to give significant weight to wife having been

previously registered to vote and having filed federal income

tax returns in Texas. We decline to do so. Wife never resided

in Texas. Furthermore, her purpose in filing joint tax returns

with her spouse in Texas was solely to take advantage of the tax

benefits afforded to military personnel. 6 Husband was the sole

source of income for the family, and his home of record was

Texas. Prior to her registering to vote in Virginia upon her

return to the Commonwealth in 1996, wife was registered to vote

with her spouse in Texas to take advantage of the ease of

absentee voting in that state for military personnel and their

dependents.

It is clear that a wife can establish a domicile separate

from that of her husband.

In the opinion of Steckel v. Steckel, 118
Va. 198, 86 S.E. 833, the court quoted with

6
Military personnel who are residents of Texas do not pay
state income taxes.

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 approval Lile's Notes to 1 Minor, at page
69, as follows: "She may establish a
separate domicile wherever it is necessary
and proper that she do so. And the courts
of either State may in such case determine
the status of the party domiciled there, and
such determination will be entitled to full
faith and credit in every other State."

Humphreys v. Strong, 139 Va. 146, 163, 123 S.E. 554, 559 (1924).

See also, Armstrong v. Armstrong, 350 U.S. 568, 577 (1955);

Commonwealth v. Rutherfoord, 160 Va. 524, 537-38, 169 S.E. 909,

913 (1933).

The courts have long held that the critical requirements of

establishing domicile is the absolute good faith in taking up

such residence and the animus manendi (intent to remain). In

other words, the fact of residence and the intent to remain

prove domicile. Humphreys, 139 Va. at 165, 123 S.E. at 560.

The parties resided in Virginia Beach for three years before

husband received orders to report to Guantanamo Bay, Cuba. Wife

left Virginia to accompany her spouse to that military

assignment. Following an incident in Florida in 1999 where

husband admitted his past and continuing infidelity, wife

informed her parents she would be returning to Virginia to live.

When she left Cuba, she did exactly what she had expressed an

intent to do.

The trial court considered all of the evidence before it,

and concluded that wife had previously established Virginia as

her domicile, and left Virginia only as a temporary sojourn to

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accompany husband to his next military duty station. Upon

learning of his continuing infidelity, she returned to her

domicile. Based on the facts found in the record, the trial

court reasonably concluded that wife satisfied the domiciliary

requirement of Code § 20-97. Accordingly, we find no error in

the trial court's finding on that issue.

C. RESIDENCY

Wife also satisfied the residency requirement of Code

§ 20-97. She left Virginia in 1987 when she married husband and

thereafter accompanied him on his various military assignments.

However, in 1996, she re-established her Virginia residency. In

that year, husband, at the urging of wife, secured a military

assignment to Virginia so that she could be near her sister, who

was terminally ill at the time. From 1996 until they departed

for husband's assignment to Cuba in 1999, the Blacksons resided

in Virginia Beach. During that time, they rented two houses in

the city, registered their motor vehicles in the Commonwealth,

and obtained Virginia driver's licenses. In addition, wife

registered to vote in Virginia in order to vote in the 1996

Presidential election.

Having re-established her residency in Virginia, wife

retains that residency until she establishes a new one. See

Hiles, 164 Va. at 137-38, 178 S.E. at 916. The establishment of

a sojourn or transitory abode outside the state will not put an

end to one's being an actual bona fide resident of the

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Commonwealth. Id. In June 1999, the Blacksons moved to

Guantanamo Bay, Cuba, a temporary sojourn for wife.

Prior to moving to Cuba, the Blacksons were experiencing

marital problems. Those problems continued following their move

to Cuba. In November 1999, wife received a letter from husband

confessing to marital infidelities. As a result of the

infidelities and continuing deterioration of their marital

relationship, she decided that she would return to Virginia,

where she had family, and would seek a divorce.

In December 1999, approximately six months after reporting

to Cuba for duty, the Blacksons visited wife's family in

Maryland. During the family visitations, she informed her

family, including her mother and father, that she was going to

return to Virginia and divorce husband. In a discussion with

her father, she contemplated not returning to Cuba. Wife's

father, after talking with both wife and husband, convinced her

to return to Cuba. However, he began assisting wife in finding

an attorney in Virginia to initiate a possible divorce action.

Wife had re-established her residency in Virginia from 1996

to 1999. Her absence from the Commonwealth while in Cuba was no

more than a temporary sojourn. Following a period of increasing

marital difficulties, wife told her family that she would return

to Virginia to live and to seek a divorce. Her decision to

return to Virginia in November 1999 was a re-affirmation of her

Virginia residency. Accordingly, we concur with the trial

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court's determination that wife satisfied the residency

requirement of Code § 20-97 when she filed for divorce, and

conclude that the trial court did not err in finding it had

subject matter jurisdiction over the parties in the divorce

proceedings.

III. PERSONAL JURISDICTION

We next consider whether the trial court possessed personal

jurisdiction over husband. He contends that the trial court did

not have personal jurisdiction over him because wife

fraudulently induced him to come into the Commonwealth. We

disagree.

Among the most firmly established
principles of personal jurisdiction in
American tradition is that the courts of a
State have jurisdiction over nonresidents
who are physically present in the State.
The view developed early that each State had
the power to hale before its courts any
individual who could be found within its
borders . . . no matter how fleeting his
visit.

Burnham v. Superior Court of California, Marin County, 495 U.S.

604, 610-11 (1990). "Generally, personal service on a

non-resident defendant found within this jurisdiction is valid

and will support a personal judgment against him." Ragouzis v.

Ragouzis, 10 Va. App. 312, 314, 391 S.E.2d 607, 608 (1990).

However, the Supreme Court has recognized that personal service

would not confer jurisdiction over a party where personal

service is accomplished by bringing the party to be served

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within the forum by force or fraud. See Burnham, 495 U.S. at

613.

Fraud is an "intentional perversion of [the] truth for the

purpose of inducing another in reliance upon it to part with

some valuable thing belonging to him or to surrender a legal

right." Black's Law Dictionary 660 (6th ed. 1990). In the

instant case there was no indicia of fraud perpetrated by wife.

She returned to Virginia on June 2, 2000, with the intent to

remain in the Commonwealth. On her arrival, she attempted to

divert a portion of the household goods and other items from

their California destination to Virginia. She, however, failed.

When husband was informed of the attempted diversion of

household goods, he subsequently contacted wife. She informed

him that she was not going to California, that the children were

staying with her in Virginia, and that she was filing for

divorce. Based on that information, husband voluntarily

traveled to Virginia to take his family to California. There

was no deceit or trickery involved in inducing husband to travel

to Virginia. Wife was forthright in her intention to seek a

divorce and maintain custody of their children.

After his arrival in Virginia, husband was arrested for

trespassing at his brother-in-law's house. Wife sought to keep

husband away from her and the children. She filed for and

obtained a protective order against him. Husband subsequently

violated the protective order and was arrested. While in the

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Chesterfield County jail, husband was served with divorce

papers. "It is the fact of service that gives the court

[personal] jurisdiction." Buttery v. Robbins, 177 Va. 368, 373,

14 S.E.2d 544, 545 (1941). The trial court properly acquired

personal jurisdiction over husband.

IV. DIVISION OF MILITARY PENSION

We next consider whether the trial court erred in dividing

husband's military pension. The trial court held that it had

jurisdiction to divide the military pension because, when

husband sought affirmative relief through his cross-bill, he

voluntarily invoked the court's jurisdiction. The trial court

determined that husband's filing a cross-bill constituted a

general appearance and consent to the court's jurisdiction under

the federal Uniformed Services Former Spouses' Protection Act

("USFSPA"). Husband contends this ruling was error. We

disagree.

Where, as in this case, military benefits are at issue, the

law of the Commonwealth is preempted by the USFSPA, which

controls state court proceedings to divide a service member's

disposable retired pay. Under the provisions of the USFSPA, a

state court may acquire jurisdiction to divide a service

member's disposable retired pay in three circumstances: (1) if

the member is domiciled in the state; (2) if the member is a

resident of the state; or (3) if the member gives consent to the

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state's jurisdiction. 7 Because husband was neither a resident

nor domiciliary of Virginia at any time during these

proceedings, the court's jurisdiction to make an award under 10

U.S.C. § 1408(c)(4) depends on whether he gave his consent to

the court's jurisdiction.

Husband initially made a special appearance to contest the

court's subject matter and personal jurisdiction. When the

court ruled that it had both subject matter and personal

jurisdiction, husband, while purporting to maintain his

objection to the jurisdictional rulings, filed a cross-bill of

complaint invoking the court's jurisdiction to grant a divorce

to him on multiple grounds, to award him child custody and child

7
10 U.S.C § 1408(c) states in relevant part:

(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. . . .

* * * * * * *

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

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support, to make equitable distribution, and to award him

attorney's fees and costs. By invoking the jurisdiction of the

court to grant him affirmative relief, husband consented to the

trial court's jurisdiction and satisfied the consent

requirements of 10 U.S.C. § 1408(c)(4). See Gowins v. Gowins,

466 So.2d 32 (La. 1985) (10 U.S.C.A. § 1408(c)(4) does not

require express consent; member can give implied consent by

making a general appearance, thereby waiving all jurisdictional

objections).

In Wagner v. Wagner, 768 A.2d 1112 (Pa. 2001), the Supreme

Court of Pennsylvania decided a case in some respects similar to

the one before us. Michael and Amy Wagner were married in

Pennsylvania in August 1982. Throughout the marriage,

Mr. Wagner served on active duty as an officer in the United

States Air Force. In 1992, the Wagners separated.

In December 1993, Ms. Wagner filed a complaint for support.

Later, in June 1994, she filed for divorce. Personal service

was effected on Mr. Wagner in Alabama in September 1995. 8

Mr. Wagner did not file an answer to the complaint for divorce.

Written interrogatories relating to income and expenses were

also served on Mr. Wagner. However, he did not file an answer.

In January 1998, Ms. Wagner filed an inventory of marital

8
Personal service was obtained through the Pennsylvania
long-arm statute. Husband, on the other hand, received personal
service while he was physically present within Virginia.

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property, which included Mr. Wagner's Air Force retirement.

Mr. Wagner did not file an inventory of marital property.

In May 1998, Mr. Wagner filed a "Refusal to Accept

Jurisdiction of Court to Determine the Disposable Retirement Pay

of a Member of the Armed Forces." He alleged "he did not reside

and was not domiciled in Pennsylvania. He also averred that he

did not consent to the trial court's jurisdiction for purposes

of the Act and objected to the court's jurisdiction over his

retirement pay." Wagner, 768 A.2d at 1115.

In construing 10 U.S.C. § 1408(c)(4)(C) of the USFSPA, the

Supreme Court of Pennsylvania began its analysis by determining

whether the statute speaks to subject matter or to personal

jurisdiction. The Court determined the Act authorizes action

"by those state courts that already have subject matter

jurisdiction and substantive law authority under pertinent state

law. Thus, Congress did not grant subject matter jurisdiction

to any court over a military pension . . . ." Id. at 1117. To

the contrary, the Pennsylvania court opined that § 1408(c)(4)(C)

refers to personal jurisdiction. For personal jurisdiction,

Congress chose not to use state law, but instead provided its

own, and exclusive, test of personal jurisdiction in

§ 1408(c)(4)(A)-(C). Id.

The court next addressed how consent under the federal

statute is established and concluded that § 1408(c)(4)(C)

"is . . . limited, and refers to a military serviceperson's

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consent to the court's authority over him to distribute his

pension." Id.

[I]n keeping with the federal policy to keep
federal intrusion into the area of domestic
relations at a minimum, the Act controls the
authority that state family law courts have
over a single item, military retirement
pay. . . . Section 1408(c)(4) preempts state
long-arm statutes only in connection with a
court's authority to determine a military
member's retirement pay, and leaves all
other rules by which state courts acquire
personal jurisdiction over a military member
for divorce and ancillary economic issues
untouched.

Id. at 1118.

The Pennsylvania court then concluded that under

§ 1408(c)(4)(C), "courts may not exercise the authority they are

provided in the Act to distribute a military member's retirement

pay in a divorce action, unless the member consents to the

court's jurisdiction over his person specifically to distribute

the retirement pay." Id. at 1119. The Pennsylvania court then

held that the trial court lacked personal jurisdiction over

Mr. Wagner to distribute his military pension under 10 U.S.C.

§ 1408(c)(4)(C).

It is evident from the record that none of
the action [Mr. Wagner] took constituted
consent as we have defined it. [Mr.
Wagner's] acceptance of service, his
counsel's written general appearance, his
participation in discovery matters unrelated
to the pay, and his attendance at a separate
support proceeding do not suffice. The only
activity on [Mr. Wagner's] part which
concerned his pay was the filing of

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 preliminary objections to the trial court's
jurisdiction and the refusal to consent.

Id. at 1120.

Husband took some actions that were similar to those of

Mr. Wagner. For example, he had his attorney enter a special

appearance in the trial court to contest both subject matter

jurisdiction over the divorce and personal jurisdiction over

him. However, unlike Mr. Wagner, husband specifically invoked

the court's jurisdiction over him when he voluntarily sought

affirmative relief through his cross-bill. The cross-bill

requested, among other things, equitable distribution of the

parties' marital estate which includes his retirement benefits.

Our Supreme Court has held that the filing of a cross-bill

constitutes a general appearance and an invocation of the

court's jurisdiction. See generally Ceyte v. Ceyte, 222 Va. 11,

14, 278 S.E.2d 791, 792 (1981) (any action taken by a litigant

which recognizes the case as before the court amounts to a

general appearance unless such action's sole purpose is to

contest jurisdiction).

Husband could not invoke and consent to the jurisdiction of

the court for equitable distribution and arbitrarily exclude his

retirement pay from the trial court's jurisdiction. Having

invoked the jurisdiction of the court to equitably distribute

all of the parties' property, husband cannot object to the

court's exercise of its authority that he voluntarily invoked.

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As a result, the trial court did not err in determining that

wife was entitled to a portion of husband's military retirement

pay under the USFSPA.

V. ATTORNEY'S FEES

Finally, we consider whether the trial court erred in

awarding wife $20,000 in attorney's fees. "An award of

attorney's fees is a matter submitted to the trial court's sound

discretion and is reviewable on appeal only for an abuse of

discretion." Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d

554, 558 (1987). "[T]he key to a proper award of counsel fees

[is] . . . reasonableness under all of the circumstances

revealed by the record." McGinnis v. McGinnis, 1 Va. App. 272,

277, 338 S.E.2d 159, 162 (1985).

Husband contends that the trial court improperly awarded

attorney's fees, in part, because wife delayed the discovery

process for approximately eight and a half months. While it is

true that wife delayed the discovery process, it was not solely

attributable to fault on her part.

The record before us indicates that many of the records

necessary to respond to the discovery requests propounded by

husband were located in a storage unit in California, under his

sole control. He denied wife access to the records he sought to

compel her to produce. Indicative of his intent, in a September

18, 2000 letter to wife, husband wrote:

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 Your best bet is to settle this divorce with
me quick through mediation and try to save
as much money as possible for yourself. If
not, the lawyers get richer and you are left
BROKE. I can make more money to replace my
loses [sic] you idiot . . . you can't. I
will drag your ass into court 1000 times if
you keep this crap up. There will never be
an end to it. I swear to you . . . this
will never, ever end if you insist on being
unreasonable. Mediate. You will lose no
matter what the outcome in court is if you
continue on your present course. I can
always appeal any decision and you will have
to pay a lawyer to defend you.

(Emphasis in the original). As a result of husband's refusal to

grant access to records, his numerous show cause filings, and

motions to compel discovery, wife was forced to delay discovery

and incur substantial additional legal expenses. From the

record before us in this case, we conclude that the trial court

did not abuse its discretion in its award of attorney's fees.

The judgment of the trial court is affirmed.

Affirmed.

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