THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Rubiela Williams, Respondent,
v.
Ennis Williams, Appellant.
Appellate Case No. 2017-002358
Appeal From Richland County
Michelle M. Hurley, Family Court Judge
Gwendlyne Y. Jones, Family Court Judge
Opinion No. 5910
Submitted March 1, 2022 – Filed May 25, 2022
REVERSED
Ennis Williams, pro se, of Charlotte, North Carolina.
Rubiela Williams, pro se, of Columbia.
KONDUROS, J.: In this divorce action, Ennis Williams (Husband) appeals the
family court's determination it had jurisdiction over him to divide his military
retirement benefits. We reverse.1
FACTS/PROCEDURAL HISTORY
1
We decide this case without oral argument pursuant to Rule 215, SCACR.
Husband married Rubiela Williams (Wife) on February 14, 1990, in Michigan.
They had two children—one born in 1997 and one in 2000. Husband joined the
United States Navy in January 1993 and retired on February 28, 2014. The parties
separated around July 20, 2015, and have been "living separate and apart" since
then.
In late 2015, Wife filed a complaint in South Carolina for divorce. She also
requested, inter alia, custody of the parties' minor child; child support; alimony;
equitable apportionment of the parties' assets, debts, and property, including
retirement accounts; and an order requiring Husband to set aside his "GI Bill
Benefits" for the children equally. At the time of filing, Wife had been a resident
of Richland County for at least one year and Husband lived in Mecklenburg
County, North Carolina, where the parties last resided together.
On April 14, 2016, Husband filed a Rule 12(b), SCRCP, motion to dismiss,
contending that under 10 U.S.C.A. § 1408(c)(4),2 the family court did not have
jurisdiction to divide his military benefits because he currently lived in North
Carolina and had never been a resident or domiciled in South Carolina. He stated
that he did "not absolutely nor implicitly consent to the jurisdiction of the [family]
court." He therefore asserted Wife's causes of action related to his military
retirement benefits should be dismissed.
On April 20, 2016, the family court held a hearing on temporary relief. Husband's
attorney began by requesting that the court not consider anything related to
military retirement because of Husband's pending motion to dismiss that claim for
lack of jurisdiction. Husband's attorney then noted Husband was requesting
custody of the minor child. That same day—April 20, 2016—Husband filed an
answer and counterclaim. In it, he again denied the family court had jurisdiction to
divide his retirement military benefits, pursuant to 10 U.S.C.A. § 1408(c)(4). He
asserted the family court did not have jurisdiction over him because he did not
reside in the state, he was not domiciled in the state, and he did not consent to the
2
10 U.S.C.A. § 1408(c)(4) provides that a court can divide military retirement
benefits only if "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."
jurisdiction of the court.3 He also counterclaimed seeking, inter alia, a divorce;
custody of the minor child or in the alternative, visitation; and attorney's fees.
The family court held a hearing on May 11, 2016, on Husband's motion to dismiss
for lack of jurisdiction. On May 18, 2016, the family court issued an order finding
Husband consented to the family court's jurisdiction through his affirmative
actions—specifically, that he filed an answer and counterclaim and appeared and
participated in the temporary hearing.4
On May 25, 2015, Husband filed a motion for reconsideration of the family court's
order. He argued he
was placed in an impossible predicament that he either
not appear to the temporary hearing and forfeit the ability
to contest the issues that this [c]ourt did have jurisdiction
3
Husband also asserted "post 9/11 GI Bill benefits" could not be treated as marital
property and were not subject to equitable division. See Eicher v. Shulkin, 29 Vet.
App. 57, 60 (2017) ("For more than 70 years, veterans have received educational
assistance through various 'GI Bills' . . . ."); Thompson v. United States, 119 F.
Supp. 3d 462, 465 (E.D. Va. 2015) ("'The Post 9/11 Veterans Education Assistance
Act of 2008[]' or the 'Post 9/11 GI Bill' . . . provide[s] monetary benefits to eligible
military members to assist veterans in readjusting to civilian life, and particularly
to assist veterans in paying for higher education." (codified at 38 U.S.C.A. §§ 3301
to 3327)); 38 U.S.C.A. §§ 3311 to 3312 (establishing that individuals who after
September 11, 2001, serve on active duty for a specified period of time are entitled
to thirty-six months of education assistance); 38 U.S.C.A. § 3313 (providing the
assistance includes payment of tuition and fees and a monthly housing stipend,
plus a lump sum amount for books, supplies, equipment, and other costs);
Thompson, 119 F. Supp. 3d at 465 ("[V]eterans who were eligible for retirement on
August 1, 2009[,] were entitled to transfer their educational benefits to their spouse
or children.").
4
The family court stated it was not addressing the GI Bill benefits issue because
Wife's complaint did not request the benefits be treated as marital property subject
to equitable division but only requested the benefits be preserved for the minor
children. But see Thompson, 119 F. Supp. 3d at 465 ("[A]n individual approved to
transfer entitlement to educational assistance under this section may transfer such
entitlement only while serving as a member of the armed forces when the transfer
is executed." (quoting 38 U.S.C.A. § 3319(f)(1))).
over . . . , including child custody, alimony/spousal
support, visitation, and child support, because the long[-
]arm statute vested this [c]ourt with jurisdiction over him
as he was served with this action while in this [s]tate.
He also asserted he filed the motion to dismiss six days prior to the temporary
hearing and attempted to have the motion heard prior to or on the same day as the
temporary hearing but the clerk of court informed his attorney it was impossible to
do so. He further contended that prior to the commencement of the temporary
hearing, his attorney informed the family court a motion to dismiss for lack of
jurisdiction was pending and asked the court to address the motion or in the
alternative, continue the temporary hearing until after the court heard the motion to
dismiss. He maintained the motion to continue was not granted and the temporary
hearing commenced over his objections.
The family court denied the motion for reconsideration on June 13, 2016. The
family court issued a subsequent order on October 31, 2016, reiterating its findings
from the initial order denying Husband's motion to dismiss for lack of jurisdiction,
stating it was denying Husband's motion for reconsideration dated September 26,
2016.5
At the hearing regarding the final divorce decree on August 7, 2017,6 after
Husband, appearing pro se, asserted the family court did not have jurisdiction over
the military retirement, the family court stated it was again denying Husband's
motion regarding jurisdiction.
On October 31, 2017, the family court granted Wife a divorce on the basis of one
year's continuous separation. The decree noted the parties had reached a partial
settlement primarily on the matter of custody. Regarding Husband's military
retirement, the family court found "[Husband] meets the jurisdiction/venue
requirements for the State of South Carolina and consented with his appearance
and that of his former attorney to [the] presiding court's jurisdiction by filing his
5
The record on appeal does not include a motion for reconsideration with this date.
6
The Honorable Michelle M. Hurley had presided over all of the proceedings
discussed before this point. The Honorable Gwendlyne Y. Jones presided over the
final divorce hearing and issued the divorce decree.
answer and counterclaim." The family court also determined Wife was entitled to
a percentage of Husband's military retirement.7 This appeal followed.
STANDARD OF REVIEW
An appellate court reviews decisions of the family court de novo. Lewis v. Lewis,
392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). The party contesting the family
court's decision bears the burden of demonstrating the family court's factual
findings are not supported by the preponderance of the evidence. Id. at 388, 709
S.E.2d at 653. "Lewis did not address the standard for reviewing a family court's
evidentiary or procedural rulings, which we review using an abuse of discretion
standard." Stoney v. Stoney, 422 S.C. 593, 594 n.2, 813 S.E.2d 486, 486 n.2 (2018)
(per curiam). "An abuse of discretion occurs either when a court is controlled by
some error of law, or where the order is based upon findings of fact lacking
evidentiary support." Sellers v. Nicholls, 432 S.C. 101, 113, 851 S.E.2d 54, 60 (Ct.
App. 2020) (quoting Patel v. Patel, 359 S.C. 515, 529, 599 S.E.2d 114, 121
(2004)). "A failure to exercise discretion amounts to an abuse of that discretion."
Id. at 114, 851 S.E.2d at 60 (quoting Samples v. Mitchell, 329 S.C. 105, 112, 495
S.E.2d 213, 216 (Ct. App. 1997)).
LAW/ANALYSIS
I. Timing of Hearing Jurisdictional Challenge and Motion for Continuance
Husband contends the family court erred in failing to first decide his prepleading
personal jurisdiction challenge made at the outset of the case. He also maintains
the family court erred in failing to grant him a continuance until his motion to
dismiss for lack of personal jurisdiction could be heard. We agree.
"As actions are called, counsel may request that the action be continued. If good
and sufficient cause for continuance is shown, the continuance may be granted by
the court." Sellers v. Nicholls, 432 S.C. 101, 113-14, 851 S.E.2d 54, 60 (Ct. App.
2020) (quoting Rule 40(i)(1), SCRCP).
At the start of the temporary hearing, the family court first stated that the hearing
was on the motion to dismiss for the jurisdictional issue. Husband's counsel stated
7
The family court found Husband "agreed he would allow both children use of his
total GI Bill, unless such was being utilized by [him]."
"that motion to dismiss was actually scheduled for May 11. I would like to
continue it until we can get that --." The court responded "I just didn't see where
there was a motion --." Wife's counsel interjected "we were not even served with
this motion until this morning, and we're asking that the temporary issues at least
as far as custody, child support, alimony be heard this morning." Husband's
counsel responded, "The motion is regarding dismissing their claim for his military
retirement and also in the [a]nswer and [c]ounterclaim with regard to the G.I. Bill."
The family court then stated, "I misstated that. We are here only on [Wife's]
motion for temporary relief . . . , so we will not hear your motion to dismiss, but
we will hear your motion for temporary relief." Following Wife's argument,
Husband's counsel responded and began by noting there was a motion to dismiss
on the military retirement benefits for lack of jurisdiction. In the temporary order
following the hearing, the family court stated "[Husband's] counsel moved to
continue [Wife's] Motion for Temporary Relief scheduled for today until
[Husband's] Motion to Dismiss for lack of jurisdiction with regard[] to his military
retirement and GI Bill benefits, which was filed on April 14, 2016, could be heard
on May 11, 2016." The family court stated it "denied [Husband's] Motion to
Continue and the hearing commenced."
"Under the current Rules of Civil Procedure, a defense of lack of jurisdiction over
the person is made by a Rule 12(b)(2) motion." 5 S.C. Jur. Abatement, Revival,
and Survival of Actions Assignments § 4 (1991); Rule 12(b), SCRCP ("[T]he
following defenses may at the option of the pleader be made by motion: . . . (2)
lack of jurisdiction over the person . . . . A motion making any of these defenses
shall be made before pleading if a further pleading is permitted. No defense or
objection is waived by being joined with one or more other defenses or objections
in a responsive pleading or motion."). "The defenses specifically enumerated (1)-
(8) in subdivision (b) of this rule . . . shall be heard and determined before trial on
application of any party, unless the [c]ourt orders that the hearing and
determination thereof be deferred until the trial." Rule 12(d), SCRCP.
"Rule 1, SCRCP[,] provides that the Rules of Civil Procedure shall be 'construed to
secure the just, speedy[,] and inexpensive determination of every action.'" Royster
Co. v. E. Distrib., Inc., 301 S.C. 18, 21, 389 S.E.2d 863, 864 (1990). The South
Carolina Rules of Civil Procedure apply in family court when no family court rule
provides otherwise. Rule 81, SCRCP.
In Combs v. Bakker, the United States Court of Appeals for the Fourth Circuit
criticized the district court for causing "awkwardness" with its "approach" of
"address[ing] first the challenge under Rule 12(b)(6) to the merits" before "the
more fundamental challenge under Rule 12(b)(2) to personal jurisdiction." 886
F.2d 673, 675 (4th Cir. 1989). The Fourth Circuit determined the "proper course in
review is to consider first whether the district court had grounds for personal
jurisdiction as to all or any of the claims, that being the actual breadth of the
defendants' Rule 12(b)(2) motion, and also the more fundamental challenge." Id.;
see also Dunbar v. Vandermore, 295 S.C. 493, 497, 369 S.E.2d 150, 152 (Ct. App.
1988) (finding federal case law persuasive in interpreting the federal rules (citing
Harry M. Lightsey & James F. Flanagan, South Carolina Civil Procedure 7 (1st ed.
1985))).
Because Husband's motion asserted the family court's lack of personal jurisdiction
over him in relation to his military retirement benefits, the family court should
have considered it first. We agree with Husband that by not hearing the motion to
dismiss first, he was placed in the position of either not answering Wife's
complaint or potentially waiving his jurisdictional issue. The family court should
have first considered whether it had jurisdiction over the military retirement
benefits. Accordingly, the family court erred in not first hearing Husband's motion
to dismiss for lack of jurisdiction.
II. Consent to Jurisdiction over Military Retirement Benefits
Husband contends the family court erred in ignoring federal law by ruling Wife
was entitled to a share of his military retirement benefits based on the family
court's finding Husband consented to jurisdiction over his military retirement
benefits by his appearance and filing of an answer and counterclaim. Husband
asserts the family court relied solely on South Carolina's long-arm statute in
determining personal jurisdiction instead of the requirements 10 U.S.C.A § 1408(c)
established. He therefore maintains this court should reverse the family court's
award of a portion of his military retirement benefits to Wife. We agree.
A. The Uniformed Services Former Spouses' Protection Act
"Domestic relations are preeminently matters of state law." Delrie v. Harris, 962
F. Supp. 931, 933 (W.D. La. 1997). However, "[t]he Uniformed Services Former
Spouses' Protection Act [(the USFSPA or the Act)] presents a rare instance where
Congress has directly and specifically legislated in the area of domestic relations."
Id. (citation omitted). "When Congress legislates on a subject . . . within its
constitutional control and over which it has jurisdiction, the state law must yield
when there is a conflict with a valid federal law." Kovacich v. Kovacich, 705
S.W.2d 281, 283 (Tex. App. 1986) (citing Free v. Bland, 369 U.S. 663 (1962)).
The USFSPA provides that "a court may treat disposable retired pay payable to 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," "[s]ubject to the limitations of this section." 10 U.S.C.A. § 1408(c)(1).8
However, the Act specifies:
A court may not treat the disposable retired pay of a
member [of the military] in the manner described . . .
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.A. § 1408(c)(4); see also Blackson v. Blackson, 579 S.E.2d 704, 712 (Va.
Ct. App. 2003) ("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 state's jurisdiction.").
B. History of the USFSPA
Congress passed the Act in 1982 due to the Supreme Court's decision the prior year
in McCarty v. McCarty, 453 U.S. 210 (1981), which "held that federal law
precludes a state court from dividing military retirement pay pursuant to state
community property law." Delrie, 962 F. Supp. at 933; see also Brown v. Harms,
863 F. Supp. 278, 281 (E.D. Va. 1994) ("In 1981, the Supreme Court held that the
existing federal laws granted husbands and wives no right to their spouses' military
pensions, and that state courts were precluded from applying their community
8
This authorization applies to "pay periods beginning after June 25, 1981." 10
U.S.C.A. § 1408(c)(1). The statute restricts a court from treating the retirement as
property "if a final decree of divorce, dissolution, annulment, or legal separation
. . . (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." Id.
property laws to such pensions." (citing McCarty, 453 U.S. at 223-36)). Because
"Congress[ was] concerned with the effect McCarty would have on the divorced
spouses of military personnel but wish[ed] to retain certain protections for military
retirees, [it] enacted the [USFSPA]." Delrie, 962 F. Supp. at 933. "The Act
modified McCarty and, in effect, permitted states to treat military retirement
benefits as either the property of the military member or as community property,
with certain specified conditions." Id.; see also Petters v. Petters, 560 So. 2d 722,
725 (Miss. 1990) ("Congress enacted [the] []USFSPA and resolved a controversy
theretofore existing regarding state authority to adjudge the rights of (ex)spouses in
a retired serviceman's military retirement pension.").
C. Preemption of State Long-Arm Statutes
"Section[] 1408 . . . (c)(4) impose[d] new substantive limits on state courts' power
to divide military retirement pay." Mansell v. Mansell, 490 U.S. 581, 590 (1989).
"Because . . . th[is] provision[] pre[]empts state law, the argument that the Act has
no pre[]emptive effect of its own must fail. Significantly, Congress placed each of
these substantive restrictions on state courts in the same section of the Act as
§ 1408(c)(1)." Id. at 591-92 (footnote omitted).
Generally, "[a] court may exercise personal jurisdiction over a person domiciled in,
. . . doing business [in], or maintaining his . . . principal place of business in[] this
State as to any cause of action." S.C. Code Ann. § 36-2-802 (2003).
"Traditionally, our courts have employed a two-step analysis in determining
whether it is proper to exercise personal jurisdiction over a nonresident defendant."
Power Prods. & Servs. Co. v. Kozma, 379 S.C. 423, 431, 665 S.E.2d 660, 664 (Ct.
App. 2008). "First, the trial court must determine that the South Carolina long-arm
statute applies. Second, the trial court must determine that the nonresident's
contacts in South Carolina are sufficient to satisfy due process requirements." Id.
However, "[b]y virtue of the Supremacy Clause, th[e] federal enactment [of the
USFSPA] overrides [a] state's long-arm statute[] to the extent that [the] state's law
would exceed the limitations of the federal enactment." Petters, 560 So. 2d at 725;
see also In re Marriage of Booker, 833 P.2d 734, 739 (Colo. 1992) (en banc) ("The
question of whether a trial court acquires jurisdiction over a military member's
military pension is governed not by principles of state rules of in personam
jurisdiction or procedure, but rather by the specific terms of the Act that, by virtue
of the Supremacy Clause of the United States Constitution, in effect preempt state
rules of procedure insofar as jurisdiction to consider this particular asset is
concerned." (citing U.S. Const. art. VI, cl. 2; Petters, 560 So. 2d at 725; Mortenson
v. Mortenson, 409 N.W.2d 20, 22 (Minn. Ct. App. 1987); Kovacich, 705 S.W.2d at
283; Allen v. Allen, 484 So. 2d 269 (La. Ct. App. 1986))).
"[S]ection 1408 places a strict limitation on the court's exercise of jurisdiction to
dispose of [a member's] military retirement pay. This federal law preempts the
application of [the state statute], which would determine whether [the member] had
'minimum contacts' with the state sufficient to confer jurisdiction over his person."
Pender v. Pender, 945 S.W.2d 395, 396 (Ark. Ct. App. 1997). "[T]he 'minimum
contacts' test does not apply in a suit for the partition of military retirement pay,
making the requirements for personal jurisdiction those set out in 10 U.S.C.A.
§ 1408(c)(4)." Id. (citing Southern v. Glenn, 677 S.W.2d 576 (Tex. App. 1984)).
The fact that a military member meets the minimum-contacts test does not
determine the matter of personal jurisdiction when the member does not meet the
terms of the federal statute regulating disposition of military retirement pay. Id. at
396-97 (citing Southern, 677 S.W.2d at 582). "Because Congress legislated on a
subject within its constitutional parameters and over which it has jurisdiction, the
state law must yield when it conflicts with federal law." Id. at 397. "[Section]
1408(c)(4) refers to personal jurisdiction. For this . . . Congress chose not to use
state law. Instead, it usurped state long-arm statutes and provided in
§ 1408(c)(4)(A)-(C) its own tests of personal jurisdiction that all state courts must
apply." Wagner v. Wagner, 768 A.2d 1112, 1117 (Pa. 2001).
"[Section] 1408(c)(4) prohibits state courts from exercising authority to determine
the status of a military member's pension unless the court, as of the commencement
of the action, has personal jurisdiction over the member by virtue of residence
(other than because of military assignment), domicile, or consent." In re Marriage
of Akins, 932 P.2d 863, 867 (Colo. App. 1997). "Jurisdiction under the USFSPA,
therefore, is more restrictive than the minimum contacts test, pursuant to which an
out-of-state defendant may be subjected to the jurisdiction of the forum state." Id.
(citing Flora v. Flora, 603 A.2d 723 (R.I. 1992); Southern, 677 S.W.2d at 582);
see also Uniform Services Former Spouses' Protection Act: Is There Too Much
Protection for the Former Spouse?, 47 A.F. L. Rev. 1, 18 (1999) ("When Congress
enacted the USFSPA, it limited the subject matter jurisdiction of state courts over
military retirement pay to those instances in which personal jurisdiction existed
over the military member other than by virtue of military assignment. These
jurisdictional provisions are more restrictive than the minimum contacts test which
will subject an out-of-state defendant to the jurisdiction of the forum state."
(footnotes omitted)). "[S]tates have . . . held uniformly, in this limited context, that
a state's process arm is not nearly so long as otherwise." Petters, 560 So. 2d at 726
(citing In re Marriage of Hattis, 242 Cal. Rptr. 410 (Cal. Ct. App. 1987); Southern,
677 S.W.2d at 582; Dunn v. Dunn, 708 S.W.2d 20 (Tex. App. 1986); White v.
White, 543 So. 2d 126 (La. Ct. App. 1989); In re Marriage of Parks, 737 P.2d
1316 (Wash. Ct. App. 1987); Mortenson v. Mortenson, 409 N.W.2d 20 (Minn. Ct.
App. 1987)).
"Congress allows 'courts of competent jurisdiction' to partition retirement pay 'in
accordance with the law of the jurisdiction of such court.'" Wagner, 768 A.2d at
1117 (quoting 10 U.S.C.A. § 1408(a)(1)(A), (c)(1)). "[T]he Act only allows courts
to apply state divorce laws to military pensions. It does not purport to do more."
Brown, 863 F. Supp. at 281. "Nowhere does it expressly or impliedly grant any
court the power to adjudicate any cause, nor does it provide any substantive rule
for the treatment of military pensions in divorce or domestic relations contexts."
Id.
D. Obtaining Jurisdiction Under the Act and the Meaning of Consent
"Congress has authorized state courts to consider the status of a military pension in
a dissolution proceeding on the express condition that the court has obtained
personal jurisdiction over the military member in accordance with the specific
statutory criteria of § 1408(c)(4)." In re Marriage of Akins, 932 P.2d at 867. "This
limitation on a court's jurisdiction was apparently adopted to curtail 'forum-
shopping' by spouses who might file proceedings in states with favorable marital
property laws but with which the military pensioner had little contact." Id.; see
also Mansell, 490 U.S. at 591 ("[Section] 1408(c)(4) prevents spouses from forum
shopping for a [s]tate with favorable divorce laws."); Petters, 560 So. 2d at 726
("The political history of [the] []USFSPA makes clear a purpose to limit forum
shopping and protect former servicemen from being required to defend their
retirement pensions in foreign forums with which they have little contact."). "The
law was not designed, however, to permit the military pensioner to likewise 'forum
shop' by changing his domicile to avoid the jurisdiction of a court." In re Marriage
of Akins, 932 P.2d at 867.
"Section 1408(c)(4) prohibits state courts from exercising authority to determine
the status of a military member's pension unless personal jurisdiction over the
member is acquired by one of three specific methods." In re Marriage of Booker,
833 P.2d at 739. "Many courts have concluded that section 1408(c)(4) constitutes
a limitation on the subject matter jurisdiction of state courts over military
pensions." Id. (citing Steel, 813 F.2d at 1552; Lewis v. Lewis, 695 F. Supp. 1089
(D. Nev. 1988); Allen, 484 So. 2d at 270-71; Seeley v. Seeley, 690 S.W.2d 626
(Tex. App. 1985)). "Other courts have construed the statute as restricting state
court exercise of otherwise valid in personam jurisdiction over military personnel."
Id. (citing Kovacich, 705 S.W.2d at 282; Seeley, 690 S.W.2d at 627).
Whatever the theory, . . . Congress has in effect both
permitted state courts to consider what status to accord
military pensions in the context of dissolution
proceedings and prescribed the manner by which
personal jurisdiction must be obtained over the military
member who is a party to such proceedings before they
may apply the substantive laws of their states to that
particular asset.
Id.
Of the three ways prescribed by Congress for a state to acquire the authority to
divide a military member's pension under § 1408(c)(4), the only one relevant here
is the member's consent. "The USFSPA's jurisdictional provision does not set
forth the manner in which the service member must consent to the forum state's
jurisdiction." 2 Brett R. Turner, Equitable Distribution of Property § 6:4 (4th.
2021). "There is a considerable body of case[ ]law from . . . states directed toward
what constitutes consent under § 1408(c)(4)(C)." Williams v. Williams, 367 P.3d
1267, 1272 (Kan. Ct. App. 2016), aff'd sub nom. In re Marriage of Williams, 417
P.3d 1033 (Kan. 2018). South Carolina has not expressed a position on the
meaning of consent in this context. See Coon v. Coon, 364 S.C. 563, 614 S.E.2d
616 (2005) (discussing the USFSPA but not analyzing the meaning of consent
under the statute). The states that have weighed in have "conflicting
interpretations" of "the meaning of 'consent' under subsection (c)(4)(C) of the
[US]FSPA." Davis v. Davis, 284 P.3d 23, 26 (Ariz. Ct. App. 2012); Williams, 367
P.3d at 1272 (acknowledging "the divergent views . . . courts have taken on the
issue" (citing Ann K. Wooster, Annotation, Construction and Application of
Federal Uniformed Services Former Spouse Protection Act in State Court Divorce
Proceedings, 59 A.L.R. 6th 433 (2010))); see also Captain Kristine D. Kuenzli,
Uniformed Services Former Spouses' Protection Act: Is There Too Much
Protection for the Former Spouse?, 47 A.F. L. Rev. 1, 18-19 (1999) ("This
provision has raised two primary issues in case law regarding jurisdiction. The
first question focused on what was required for the court to find that the member
had 'consented' to the court's jurisdiction.").
E. Implied Consent to Jurisdiction
Some courts have concluded the Act requires only implied consent to the court's
general jurisdiction to obtain personal jurisdiction over a service member.
"Some courts discuss the issue of consent in terms of whether § 1408(c)(4)(C) is a
provision dealing with 'subject matter jurisdiction' or 'personal jurisdiction.' Other
courts discuss whether § 1408(c)(4)(C) requires 'express consent' or if 'implied
consent' is sufficient." Williams, 367 P.3d at 1272; see also Broadbent v.
Broadbent, 451 P.3d 930, 932 (Okla. Civ. App. 2019) (noting state courts are "split
[over] whether consent by a military spouse may be express or implied"); Davis,
284 P.3d at 26 ("The disagreement [over the meaning of consent] stems from
whether implied consent satisfies the requirements of subsection (c)(4)(C).").
"While some states have rejected the theory of implied consent, others have held
that implied consent satisfies the requirements of the [US]FSPA or that the
protections of the [US]FSPA may be waived through state procedural rules."
Davis, 284 P.3d at 26.
In Williams, the Kansas Court of Appeals observed the parties' contrary positions
each had "substantial support" from "the case[ ]law of [its] sister states." 367 P.3d
at 1272. In that case, the husband "contend[ed] that the USFSPA requires 'express
consent' and he did not expressly consent to the court's jurisdiction by 'filing an
answer, appearing, and actively participating in the case'" and that "if 'implied
consent' is sufficient, the consent 'must be specific to the issue of military
retirement, when the underlying case involves multiple issues.'" Id. Whereas the
wife "argue[d] that [the husband] consented to jurisdiction when he appeared and
participated in the proceedings without objecting to the district court's jurisdiction
over his military retirement." Id.
One court recognizing the split between states observed courts have had conflicting
interpretations of consent when "a service member remains silent regarding the
court's authority to divide the military benefits, i.e. implied consent." Broadbent,
451 P.3d at 932-33 (citing Johnson v. Johnson, 386 P.3d 1049, 1055 (Okla. Civ.
App. 2016)). That court noted that the Johnson opinion had cited to Davis, 284
P.3d at 27, "which held that § 1408(c)(4)(C) does not require express consent, and
that 'a state court may exercise personal jurisdiction' over a military member's
retirement when that member 'makes a general appearance without expressly
contesting personal jurisdiction.'" Broadbent, 451 P.3d at 933 (citing Johnson, 386
P.3d at 1055; White v. White, 543 So. 2d 126 (La. Ct. App. 1989) (finding consent
can be implied after a general appearance, which waives all personal jurisdiction
objections); Judkins v. Judkins, 441 S.E.2d 139 (N.C. Ct. App. 1994) (holding
member consented by making general appearance and filing answer with
counterclaims without contesting jurisdiction); Morris v. Morris, 894 S.W.2d 859,
862 (Tex. App. 1995) (deciding member consented by filing general answer and
not contesting court's jurisdiction until appeal)).
"[S]tates have held that consent by a military spouse may be express or implied,
and that a general appearance coupled with a failure to timely object to personal
jurisdiction constitute implied consent under [s]ection 1408(c)(4)(C)." Pierce v.
Pierce, 132 So. 3d 553, 562 (Miss. 2014) (citing Judkins, 441 S.E.2d at 140;
Kildea v. Kildea, 420 N.W.2d 391, 394 (Wis. Ct. App. 1988); Southern, 677
S.W.2d at 583); see also Kuenzli, Uniformed Services Former Spouses' Protection
Act: Is There Too Much Protection for the Former Spouse?, 47 A.F. L. Rev. at 19
("The majority of jurisdictions have concluded that a general appearance is
tantamount to consent to the court's jurisdiction for all purposes, including division
of the military pension. Since no requirement exists for the member to specifically
consent to the court's authority to divide the military retirement pay, this reading
of the statute seems appropriate. After all, the USFSPA only requires consent to
the jurisdiction of the court, not consent to the court's authority to divide the
pension." (emphases added) (footnote omitted)). "Most courts in other states have
held that a party impliedly consents to jurisdiction under [the] []USFSPA where he
or she waives a challenge to the court's personal jurisdiction under state law." In re
Marriage of Robinson, 33 N.E.3d 260, 266-67 (Ill. App. Ct. 2015) (citing In re
Marriage of Booker, 833 P.2d at 740; Gowins v. Gowins, 466 So. 2d 32, 34-35 (La.
1985); Pierce, 132 So. 3d at 562-63; Davis, 284 P.3d at 27; Judkins, 441 S.E.2d at
140; Seeley, 690 S.W.2d at 628; Blackson, 579 S.E.2d at 712; In re Marriage of
Peck, 920 P.2d 236, 239 (Wash. Ct. App. 1996); Kildea, 420 N.W.2d at 394); see
also Pierce, 132 So. 3d at 562 ("[T]he protections of [s]ection 1408(c)(4), like
other limitations on a state's authority to acquire personal jurisdiction, may be
waived." (quoting Petters, 560 So. 2d at 726)); id. ("[A] waiver c[an] be
accomplished through a general appearance or 'anything else which might be
construed as a present waiver.'" (quoting Petters, 560 So. 2d at 726)); Petters, 560
So. 2d at 726 ("Other states have recognized this waiver doctrine in cases where
the defendant entered a general appearance or waived the service of process upon
him."); 2 Turner, Equitable Distribution of Property § 6:4 ("The service member
clearly consents by litigating the case without expressly raising the jurisdictional
provision as an issue. In other words, the burden of invoking the USFSPA's
jurisdictional provision is on the service member." (footnote omitted)); id. ("The
service member also clearly consents by expressly agreeing to a state's jurisdiction
in a stipulation or settlement agreement."); id. ("A majority of state courts held that
the service member consents to the state's jurisdiction by requesting affirmative
relief in the case or otherwise making a general appearance." (footnote omitted)).
Wisconsin is one of those states that follows the position that § 1408(c)(4) "only
requires consent to the jurisdiction of the court, not consent to the court's authority
to divide the pension." Kildea, 420 N.W.2d at 393. The Wisconsin Court of
Appeals has held that "[h]ad Congress intended specific consent to be a
requirement, it would have been a simple matter to draft the statute to do so." Id.
The court opined that "[b]y drafting it as Congress did, the statute curtails 'forum
shopping' by the nonmilitary spouse, but does not give an absolute 'veto power' to
the military spouse." Id. at 394 (citing Southern, 677 S.W.2d at 583). The court
"conclude[d] that . . . [§] 1408(c)(4) is clear on its face and that consent to personal
jurisdiction is sufficient to give the court authority to divide the pension. We
decline to adopt the strained interpretation urged by [the husband]." Id. The court
noted, "Other jurisdictions have likewise concluded that a general appearance is
tantamount to consent to the court's jurisdiction for all purposes, including division
of the military pension." Id. (citing In re Marriage of Jacobson, 207 Cal. Rptr. 512
(Cal. Ct. App. 1984); Seeley, 690 S.W.2d at 628). The court determined that in
that case, the husband's "general appearance and failure to timely object to
personal jurisdiction gave the trial court the authority to divide his military
pension." Id.
In another case adopting the same position, after the appellate court found the
husband had consented when he had not objected to the jurisdiction of the court to
divide his military retirement benefits during the divorce and first objected
nineteen years later, once the wife filed a motion to garnish his retirement, the
husband argued to the Kansas Supreme Court that consent must be (1) explicit
because "the plain meaning of 'consent' is not 'failure to object'" and (2) specific to
jurisdiction over the military benefits. In re Marriage of Williams, 417 P.3d at
1037-38, 1047. The court was "not persuaded that the USFSPA requires specific
consent to the consideration of retirement benefits. . . . [Section] 1408(c)(4)(C)
states the service member must 'consent to the jurisdiction of the court.' It does not
say he or she must consent to the court dividing military retirement benefits." Id.
at 1047. The court determined that "[u]nder the circumstances of th[at] case, a
Kansas court with personal jurisdiction over an individual has subject-matter
jurisdiction to divide marital property, including military retirement benefits." Id.
Many of the cases discussing the subject of consent to jurisdiction over military
retirement differ from the present case in that in those cases, the military members
did not raise an objection to jurisdiction and made a general appearance. The
Arizona Court of Appeals stated that it "agree[d] with those courts holding that a
state court may exercise personal jurisdiction over a military member who makes a
general appearance without expressly contesting personal jurisdiction." Davis, 284
P.3d at 27 (citing Gowins, 466 So. 2d at 36 ("10 U.S.C.A. § 1408(c)(4)(C) does not
require express consent. A military spouse can give implied consent to a state
court's jurisdiction by making a general appearance, waiving all jurisdictional
objections."); Judkins, 441 S.E.2d at 140 (state court obtained personal jurisdiction
over military member where he made a general appearance by seeking affirmative
relief in his answer without contesting personal jurisdiction); Kildea, 420 N.W.2d
at 393-94 (holding that the military member's "general appearance and failure to
timely object to personal jurisdiction gave the trial court the authority to divide his
military pension")).
F. Express Consent to Division of Military Retirement Benefits
"Other[] [state courts] have suggested that a defendant must affirmatively state his
or her 'consent' to jurisdiction." In re Marriage of Robinson, 33 N.E.3d at 267
(citing In re Marriage of Akins, 932 P.2d at 867-68; Davis, 284 P.3d at 26-27
(recognizing disagreement and collecting cases)); see also 2 Turner, Equitable
Distribution of Property § 6:4 ("A minority of decisions holds that the service
member may refuse consent to division of military retirement benefits, while still
litigating other issues in the case and indeed obtaining affirmative relief upon
them."). Corpus Juris Secundum provides that "state courts may not exercise
authority to distribute [a] nonresident 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" and cites to a Pennsylvania
Supreme Court case to support this statement. 27C C.J.S. Divorce § 967 (2016)
(citing Wagner, 768 A.2d at 1119). In that case, the supreme court, on appeal from
an intermediate appellate court, examined to what a military member must consent
under § 1408(c)(4)(C). Wagner, 768 A.2d at 1117. The supreme court noted that
once the intermediate court "characterized § 1408(c)(4)(C) as a personal
jurisdiction provision, it assumed that the statute meant consent to the court's
personal jurisdiction in a divorce proceeding for all purposes." Id. "The
[intermediate] [c]ourt did not allow for the possibility that § 1408(c)(4)(C) is more
limited[] and refers to a military serviceperson's consent to the court's authority
over him to distribute his pension." Id. However, the supreme court determined it
needed to address that possibility. Id.
The supreme court began its examination of Congress's intent by recognizing "that
Congress views domestic relations as virtually the exclusive province of the states,
and as an area in which it is reluctant to intrude." Id. (citing Sosna v. Iowa, 419
U.S. 393, 404 (1975)). The court noted "the authority granted to state courts in the
family law context in which § 1408(c)(4)(C) operates is comprehensive. In
divorce actions, state courts are empowered to decide a variety of matters; they
dissolve marriages, resolve property rights, and determine issues of child custody,
alimony[,] and support." Id. at 1118. Further, the court observed that "[m]any
state courts . . . have the power to determine property rights, even after a marriage
has been dissolved in another forum." Id. The court noted "the rules that apply to
the courts' authority over a person, including a military member, to render valid
judgments are far-reaching. In [many states], courts may issue a divorce decree ex
parte, as long as the plaintiff satisfies a residency requirement and serves the
complaint." Id. The court noted that generally, when "a defendant is subject to a
state's long-arm statute and has sufficient contacts with that state, his rights in the
matters ancillary to divorce may be determined by its courts." Id. Following a
court's obtaining personal jurisdiction over a defendant in an initial divorce action,
the court is often then "empowered to bind him by subsequent orders over
connected matters, including the partition of marital assets." Id.
The court noted that in line with the federal policy to limit federal intrusion into the
area of domestic relations, the Act controls the authority that state courts have over
only a single item—military retirement pay. Id. "The Act represents 'one of those
rare instances where Congress has directly and specifically legislated in the area of
domestic relations,' for the limited purpose of overriding the preemptive effect of
federal law on the disposition in divorce actions of military pensions." Id. (quoting
Mansell, 490 U.S. at 587). Congress did not attempt to regulate any other issue
that could "arise in a military member's divorce nor did it purport to speak to a
member's conduct in litigation with regard to any issue but the retirement pay." Id.
(emphasis added). "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.
"By its terms, § 1408(c)(4)(C) reflects Congress'[s] narrow aim. While the
reference to jurisdiction in § 1408(c)(4)(C) is unqualified, § 1408(c)(4)(C) contains
a reference to § 1408(c)(1)'s specific focus on the retirement pay." Id. "Reading
the language of § 1408(c)(4)(C) in context and consistently with the Act's scope
and object, we believe that Congress intended for the consent requirement in
§ 1408(c)(4)(C) to relate, like the rest of the Act, specifically to a military
member's pension." Id.
The Wagner court found that "determin[ing] otherwise . . . would run counter to
Congress'[s] purpose [in enacting the Act]." Id. "The right to consent in
§ 1408(c)(4)(C) carries with it, of course, the right not to consent." Id. "Under the
[intermediate] [c]ourt's construction of the statute, a military member who seeks
§ 1408(c)(4)(C)'s protection should withhold his consent to the trial court's
personal jurisdiction in general." Id. However, the supreme court found this
interpretation "would mean that Congress gave a military member . . . the power to
veto the personal jurisdiction a court might otherwise have to dissolve a marriage
or to determine" other matters that divorce actions raise, such as the division of
other marital assets, by withholding consent under the statute. Id. at 1118-19.
"Given the federal principle that family law is preeminently a local matter and the
limited focus of the Act, this simply cannot be the case." Id. at 1119.
The Wagner court further found the intermediate "[c]ourt's construction is
unworkable. . . . [T]he [intermediate] [c]ourt suggested that a military member
who does not consent under § 1408(c) to the trial court's authority to distribute his
retirement pay should file preliminary objections to the court's personal
jurisdiction." Id. The supreme court noted that "[t]ypically, however, [the
member] will be subject to the court's personal jurisdiction, no matter what he files
or states. Thus, a general assertion that withholds consent to the court's personal
jurisdiction would be legally meaningless on its face." Id. "In this context then,
the assertion that has legal meaning is one . . . that withholds consent specifically
to the court's jurisdiction with respect to the retirement pay." Id. The supreme
court determined a military member would be "ill-advised" to take any of the
intermediate court's suggestions—"refuse service or make no appearance"—for
how to avoid "a finding of consent under the statute." Id. The supreme court
found these options "encourage a military member to flout process and force upon
him an unreasonable choice between participating in and remaining absent from
important judicial proceedings." Id.
The supreme court "conclude[d] that under § 1408(c)(4)(C), the Pennsylvania
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. Based on the circumstances, the Wagner court determined the trial court
did not have jurisdiction over the husband's retirement benefits. Id. at 1120. The
court found "none of the actions [the husband] took constituted consent as we have
defined it. [The husband'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." Id. The court noted
"[t]he only activity on [the husband's] part which concerned his pay was the filing
of preliminary objections to the trial court's jurisdiction [over the husband] and the
refusal to consent." Id. (emphasis added).
In Johnson, the Oklahoma Court of Civil Appeals followed the Wagner court's
reasoning that "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." Johnson, 386 P.3d at 1054 (emphasis added by
court) (quoting Wagner, 768 A.2d at 1119). The court found "the Wagner [c]ourt's
interpretation of [§] 1408(c)(4)(C) to be instructive." Johnson, 386 P.3d at 1054
(citing In re Marriage of Tucker, 277 Cal. Rptr. 403, 409 (Cal. Ct. App. 1991)
(holding pursuant to 1408(c)(4)(C), the service member must "consent[ ] to
disposition of [the member's] military retirement" in order for the trial court to
divide the military retirement benefits)). The Johnson court also found the Wagner
court's interpretation to be consistent with the United States Supreme Court's
guidance on the Act in Mansell:
We realize that reading the [Act] literally may inflict
economic harm on many former spouses. But we decline
to misread the statute in order to reach a sympathetic
result when such a reading requires us to do violence to
the plain language of the statute and to ignore much of
the legislative history. Congress chose the language that
requires us to decide as we do, and Congress is free to
change it.
Johnson, 386 P.3d at 1054-55 (alteration by court) (quoting Mansell, 490 U.S. at
594).
In the Johnson case, the court "not[ed] the husband had immediately and expressly
contested personal jurisdiction of the court to divide his retirement in the action
filed." Broadbent, 451 P.3d at 933 (citing Johnson, 386 P.3d at 1055).
California interpreted the consent required by § 1408(c)(4)(C) in a similar manner
as the Wagner court in the case of In re Marriage of Tucker, 277 Cal. Rptr. at 406-
08. In that case, the wife argued the husband "consented to the trial court's
jurisdiction over his pension" "by consenting to the trial court's resolution of
certain portions of the dissolution action—child custody, support[,] and portions of
the parties' personal property." Id. at 406. The court noted that the wife's "position
in this regard is consistent with assumptions some courts have made with respect
[to] Congress's intent in enacting . . . [§] 1408(c)(4)(C)." Id. (citing In re Marriage
of Jacobson, 207 Cal. Rptr. at 515; Gowins, 466 So. 2d at 35; Seeley, 690 S.W.2d
at 627). The court determined the wife's argument was "consistent with
considerations of judicial economy," in at least one respect—"If a member of the
military has no objection to having child custody, support[,] and some property
issues resolved in a particular forum, it does not serve the interests of judicial
economy to permit him to nonetheless insist that division of his military pension be
decided in another forum." Id.
However, the court also recognized the husband's argument that the court had
previously "held a spouse seeking to divide a military pension under []USFSPA
must show that a member of the military had more than the minimum contacts with
the forum necessary for personal jurisdiction." Id. (citing In re Marriage of Hattis,
242 Cal. Rptr. at 415). The court stated that the Hattis case had "found that the
provisions of . . . [§] 1408(c)(4) were 'apparently included in response to concerns
about "forum-shopping" spouses who might seek to divide the pension in a state
with more favorable laws, but with little contact with the pensioner.'" Id. (quoting
In re Marriage of Hattis, 242 Cal. Rptr. at 413). The court noted that Hattis
"recognized that, in holding [the] []USFSPA requires the nonmilitary spouse to
show more than what is required by a minimum contacts analysis, the result often
will be that a court has jurisdiction over all aspects of marriage except disposition
of a military pension." Id. (citing In re Marriage of Hattis, 242 Cal. Rptr. at 413-
15). The Tucker court stated, "[A] minimum contacts approach will support
California jurisdiction over [a service member] for the purposes of determining his
liability for child support . . . but that same court cannot adjudicate the division of
his military pension, even if California law would apply under a choice of law
analysis." Id. at 406-07 (quoting In re Marriage of Hattis, 242 Cal. Rptr. at 415).
Ultimately, the Tucker court determined, "In light of . . . Hattis, [it was] not in a
position to accept [the wife]'s argument that consent to jurisdiction over one
portion of the dissolution proceeding can be interpreted as waiving the additional
protection provided to members of the military by [the] []USFSPA." Id. at 407.
The court stated that "after Hattis, the failure to object to California's jurisdiction
over all aspects of a divorce cannot be interpreted as an agreement [that] the
narrower requirements of [the] []USFSPA have been satisfied or need not be met."
Id. "Rather, given Hattis, 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." Id.
G. Timing of Objection to Jurisdiction over Military Retirement
Benefits
A few courts have tried to explain the differing interpretations of the statute arising
out of the concepts of implied and express consent. The Kansas Court of Appeals
did so by looking at an opinion from another state that held "§ 1408(c)(4) does not
require that the service member expressly consent to a trial court's jurisdiction to
divide his military retirement" because "[t]he service member's consent can be
implied after he has made a general appearance, which waives all personal
jurisdiction objections." Williams, 367 P.3d at 1274 (citing White, 543 So. 2d at
128). The Kansas court observed "[o]ther courts . . . have followed this reasoning
includ[ing] the California Court of Appeals; North Carolina Court of Appeals; the
Texas Court of Appeals; the Washington Court of Appeals; the Wisconsin Court of
Appeals; and the Virginia Court of Appeals." Id. (citing In re Marriage of
Jacobson, 207 Cal. Rptr. at 515; Judkins, 441 S.E.2d at 140; Morris, 894 S.W.2d at
862; In re Marriage of Parks, 737 P.2d at 1318; Kildea, 420 N.W.2d at 394;
Lenhart v. Burgett, No. 0528-94-1, 1995 WL 129140, at *2 (Va. Ct App. Mar. 28,
1995)).
The Williams court determined "the terminology 'express consent' and 'implied
consent' [was not] useful to our analysis of what constitutes consent under
§ 1408(c)(4)(C). The use of this terminology in other states' decisions does not
really capture the factors the courts are relying on in their analyses." 367 P.3d at
1274. Instead, the court "prefer[red] to focus on a common factual pattern
represented in most of the cases." Id. The court recognized that "[i]n most cases,
the court is hearing supplemental or ancillary proceedings to an earlier divorce
proceeding. In these later proceedings[,] the issue of division of military
retirement is being raised for the first time and the service member objects to the
division of his or her retirement." Id. at 1274-75.
Courts following the "implied consent" viewpoint hold
that if objection is not made to personal jurisdiction in
the first instance, the service member consents to
jurisdiction for purposes of § 1408(c)(4)(C),
notwithstanding that the issue of the division of the
military retirement may not have been raised until years
later in supplemental or ancillary proceedings.
Courts following the "express consent" viewpoint take
the position that the service member does not consent to
jurisdiction for purposes of § 1408(c)(4)(C) unless the
service member fails to object when the issue of division
of the retirement is first raised. For these courts[,] a
failure to object to jurisdiction at a time before the matter
of division of retirement is raised does not constitute
consent. They allow an objection to be raised to
jurisdiction when the issue of division of retirement is
first raised, even if earlier in the proceeding the party did
not object to jurisdiction. They look to see what response
the party makes after the issue of retirement is raised. If
the party doesn't object, there is consent. If the party
does object, there is no consent.
Id. at 1275.
Oklahoma has observed "conflicting interpretations have only arisen under
[§] 1408(c)(4)(C) where the military member remained silent regarding the court's
authority to divide the military retirement, and only contested that authority later."
Johnson, 386 P.3d at 1055. States have "'conflicting interpretations . . . regarding
the meaning of "consent" under subsection (c)(4)(C) of the [Act].'" Id. (alteration
by court) (quoting Davis, 284 P.3d at 26). "The disagreement stems from whether
implied consent satisfies the requirements of subsection (c)(4)(C). While some
states have rejected the theory of implied consent, others have held that implied
consent satisfies the requirements of the [Act] or that the protections of the [Act]
may be waived through state procedural rules." Id. (alterations by court) (emphasis
added by court) (quoting Davis, 284 P.3d at 26). "Among those states accepting
the theory of implied consent, there also appears to be disagreement regarding
whether the military spouse's participation in the underlying dissolution
proceedings provides a continuing basis to exercise jurisdiction with respect to
post-dissolution proceedings to divide military retirement pay." Id. (quoting
Davis, 284 P.3d at 26-27). "In Davis, the court stated that § 1408(c)(4)(C) does
not require express consent, and 'a state court may exercise personal jurisdiction'
over a military member's retirement when that member 'makes a general
appearance without expressly contesting personal jurisdiction.'" Johnson, 386 P.3d
at 1055 (emphases added by court) (quoting Davis, 284 P.3d at 27).
The Johnson court distinguished its case, in which the "[h]usband promptly and
expressly contested personal jurisdiction of the court with regard to his retirement
pay" from Davis, in which the member did not contest personal jurisdiction until
after the member "'had: (1) made a general appearance; (2) personally and through
counsel appeared at a court hearing; (3) specifically requested a special master be
appointed to address his retirement pay; and (4) sought clarification about the
special master's role and payment of the special master's fees,'" and when the
member in Davis ultimately contested jurisdiction, he did it "'only in
communications with the special master.'" Johnson, 386 P.3d at 1055 (quoting
Davis, 284 P.3d at 28). While "[t]he Davis [c]ourt concluded that '[b]y making an
appearance, requesting affirmative relief from the court[,] and taking these other
actions before raising any personal jurisdiction issue, [the service member]
consented to Arizona's jurisdiction,'" the Johnson court noted that in its case, the
"[h]usband immediately contested the court's authority and jurisdiction to divide
the military retirement, and at all stages of the proceeding [the h]usband renewed
his objection to the court's authority in this regard." Johnson, 386 P.3d at 1055
(third alteration by court) (emphasis added by court) (quoting Davis, 284 P.3d at
28).
The Johnson court determined the trial court had erred in finding the husband had
consented to the court's jurisdiction to divide his military retirement by previously
filing two separate domestic actions. Id. The Johnson court found, "Although [the
h]usband filed . . . two prior domestic actions[9] . . . , [he] never specifically
9
The first action was "for separate maintenance[,] which was dismissed by the trial
court, and the second was an action for divorce[,] which resulted in a default
divorce decree. However, the second action was ultimately vacated by the trial
court as a result of insufficient service of process on [the w]ife." Johnson, 386
consented to the district court's jurisdiction with respect to his military retirement."
Id. at 1055-56. The court explained that the "[h]usband specifically objected in the
present action to the court's jurisdiction with regard to his military retirement, and
he did so promptly and at all stages of the proceedings." Id. at 1056. The court
concluded "because the trial court did not have jurisdiction over [the h]usband's
military retirement by reason of . . . [the h]usband's consent to the jurisdiction of
the court to divide his military retirement, the trial court lacked authority under
[§] 1408(c)(4) to do so." Id.
Many of the cases that concern this statute have involved prior divorce proceedings
in which neither party raised an objection to jurisdiction at the time of the divorce
but did so in later proceedings, often when the member actually retired. Williams
recognized, "Most of the cases deciding jurisdictional issues under the USFSPA"
"involve circumstances where some time after the decree of divorce, a party comes
back to court with a post-decree motion to modify the decree to make a division of
military retirement benefits." 367 P.3d at 1275; id. at 1274-75 ("In most cases, the
court is hearing supplemental or ancillary proceedings to an earlier divorce
proceeding. In these later proceedings[,] the issue of division of military
retirement is being raised for the first time and the service member objects to the
division of his or her retirement."). The court in Williams noted, "A determination
of what constitutes consent under such circumstances is fundamentally different
than what occurred here." Id. at 1275. The Williams court found it had jurisdiction
over the husband when "the court determined jurisdiction and made the division of
the retirement benefits during the initial divorce proceeding" and the husband did
not object to the jurisdiction until nineteen years later when his ex-wife "was
seeking to enforce the divorce decree's order regarding division of [the husband's]
retirement benefits." Id.
H. State Law Related to Waiver and/or Implied Consent
Apart from the differing interpretations of consent for purposes of section 1408,
many of the cases turn on states' own precedents on the waiver of personal
jurisdiction.
In Kildea, the Wisconsin Court of Appeals noted that the husband "admit[ted] that
the trial court had personal jurisdiction over him" but argued "that the trial court
P.3d at 1052. "After the second action was vacated, [the w]ife filed the . . . petition
initiating the divorce proceedings at issue." Id.
lacked the 'power' to divide the pension." 420 N.W.2d at 393. The husband
"point[ed] to the statutory language that the court must have jurisdiction 'by reason
of' his consent. He contend[ed] that the court's jurisdiction over him was 'by
reason of' the service of summons, not 'by reason of' his consent." Id. "He also
argue[d] that he never consented to the court's division of the pension." Id. "The
trial court found that [the husband] had consented to jurisdiction by his admission
of service, his counsel's general appearance, his own general appearance, and his
response asking for affirmative relief." Id.
On appeal, the court determined the husband "confuse[d] consent to service of a
summons with consent to personal jurisdiction. . . . To avoid 'consenting' to the
jurisdiction of the court, he must merely object to jurisdiction." Id. The court
noted that in that state, "if a litigant desires to avail himself of want of jurisdiction
of his person he must keep out of court for all purposes except that of objecting to
jurisdiction, or, what is the same thing, moving to dismiss on that ground." Id.
(quoting Stroup v. Career Acad. of Dental Tech.-Washington, D.C., Inc., 156
N.W.2d 358, 360 (Wis. 1968)). The court further explained, "If [the litigant] takes
any step consistent with the idea that the court has jurisdiction of his person, such
appearance amounts to a general appearance and gives the court jurisdiction for all
purposes." Id. (quoting Stroup, 156 N.W.2d at 360).
The court noted "although service was one of the steps taken to obtain jurisdiction,
[the husband] still had the opportunity to object to jurisdiction by responsive
pleading or motion." Id. It found the husband "made no objection regarding
jurisdiction over his person. In fact, he repeatedly concede[d] that personal
jurisdiction was present." Id. It noted the husband instead relied "on nuances in
the statute to build an argument that although personal jurisdiction was generally
present, the court lacked the specific jurisdiction to divide the pension because he
did not agree to the division." Id. However, the court decided "his argument was
not supported by the clear language of the statute." Id.
In the case of In re Marriage of Robinson, the Illinois Court of Appeals held the
husband did not consent to jurisdiction. 33 N.E.3d at 267. The court noted that in
that state, "a party does not waive a challenge to a court's personal jurisdiction if
the party challenges the court's jurisdiction before filing a motion or other
responsive pleading." Id. The court stated the husband "undoubtedly challenged
the trial court's personal jurisdiction prior to seeking affirmative relief from the
court." Id. The court found the first action he took in the proceedings in that state
was a motion "argu[ing] that the court lacked personal jurisdiction over him. His
subsequent request for a modification to the court's award did not waive his
challenge to the trial court's jurisdiction in th[e] case." Id. The court determined
the husband "did not affirmatively state his consent to jurisdiction, either; he did
the precise opposite. Thus, we find that [the husband] did not consent to the
Illinois court's jurisdiction by requesting affirmative relief or in any other way."
Id.
In Seeley, a Texas appellate court found that the husband had entered a general
appearance by his conduct at trial. 690 S.W.2d at 627. When the case was initially
called, the trial court had asked if "the parties were there on [the husband's] special
appearance." Id. The husband's "attorney responded that although a special
appearance was set for hearing, that he had no objection 'to [the wife] proceeding
with the proof on the divorce itself and reserve[d] that question on military
retirement pay in response to whatever evidence [the wife] puts on.'" Id. (second
alteration in original). The court noted that the husband's "sole objection was
limited to the jurisdiction of the court over the military retirement pay." Id. The
case proceeded, and during the wife's testimony, she was questioned and she gave
answers regarding the husband's military retirement benefits. Id. Once the
husband "rested, the court allowed argument concerning the issue of [the
husband's] special appearance." Id.
The appellate court determined the trial "court did not rule on the special
appearance until the trial on the merits was concluded. An individual who
challenges the court's jurisdiction by filing a special appearance must follow
strictly the provisions of [the rule regarding special appearances] to avoid making a
general appearance." Id. at 627-28. The appellate court found that because the
husband "allowed the trial to proceed without first obtaining a ruling" on his
special appearance motion, the husband "waived his special appearance." Id. at
628. "The Texas rules of civil procedure provide that only after a special
appearance is overruled may a party thereafter appear generally without waiving
his special appearance. This rule, however, applies only where the special
appearance is overruled prior to a trial on the merits." Id. "By invoking the
court's jurisdiction on matters other than jurisdiction, and without being compelled
to do so by prior ruling of the court, the [husband] made a general appearance.
This being the case, [the husband] consented to jurisdiction and satisfied the
requirements of [§] 1408(c)(4)." Id. (citation omitted).
The Mississippi Supreme Court has held: "[T]he protections of [§] 1408(c)(4), like
other limitations on a state's authority to acquire personal jurisdiction, may be
waived. Other states have recognized this waiver doctrine in cases where the
defendant entered a general appearance or waived the service of process upon
him." Petters, 560 So. 2d at 726 (citations omitted) (citing Gowins, 466 So. 2d at
36; In re Marriage of Parks, 737 P.2d at 1318; Kildea, 420 N.W.2d at 293-94).
The court held in that case, "As [the husband] has made no appearance in this
matter nor done anything else which might be construed as a present waiver, there
is no basis upon [which] we might find that within the meaning of
[§] 1408(c)(4)(C) . . . he has consented to the jurisdiction of the Mississippi court."
Id. This holding was in spite of the fact that the court had jurisdiction over the
husband in the wife's debt claim against him due to his desertion; the debts
occurred in the state as did the husband's behavior that led to the debts. Id. at 726-
27.
The Louisiana Supreme Court has held "§ 1408(c)(4)(C) does not require express
consent. A military spouse can give implied consent to a state court's jurisdiction
by making a general appearance, waiving all jurisdictional objections under [the
Louisiana Code of Civil Procedure]." Gowins, 466 So. 2d at 36.
The Oklahoma Court of Civil Appeals found the trial court had personal
jurisdiction over the husband to divide his military retirement benefits because the
"[h]usband voluntarily subjected himself to the court's jurisdiction." Broadbent,
451 P.3d at 933. It noted, the "[h]usband filed the petition for dissolution of
marriage . . . , requesting the court equitably divide the parties' real and personal
property." Id. The "[h]usband did not object to the court's jurisdiction over his
retirement for over a year. Accordingly, . . . [the h]usband consented to the court's
jurisdiction by initiating the dissolution proceeding and failing to timely contest the
court's jurisdiction." Id.
In Blackson, 579 S.E.2d at 712, the Virginia Court of Appeals observed: "[The
h]usband initially made a special appearance to contest the court's subject matter
and personal jurisdiction." "[T]he [trial] court ruled it had both subject matter and
personal jurisdiction . . . ." Id. The husband continued to maintain his objection to
the jurisdictional rulings but also "filed a [counterclaim] invoking the court's
jurisdiction to grant a divorce to him on multiple grounds, to award him child
custody and child support, to make equitable distribution, and to award him
attorney's fees and costs." Id. The appellate court determined that "[b]y invoking
the jurisdiction of the court to grant him affirmative relief, [the] husband consented
to the trial court's jurisdiction and satisfied the consent requirements of . . .
§ 1408(c)(4)." Id.
The Blackson court found: "[The h]usband took some actions that were similar to
those of [the husband in 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." Id. "However, unlike Mr. Wagner,
[the] husband specifically invoked the court's jurisdiction over him when he
voluntarily sought affirmative relief through his [counterclaim]. The
[counterclaim] requested, among other things, equitable distribution of the parties'
marital estate which includes his retirement benefits." Id. The court noted that in
that state, "the filing of a [counterclaim] constitutes a general appearance and an
invocation of the court's jurisdiction." Id. at 713-14 (citing Ceyte v. Ceyte, 278
S.E.2d 791, 792 (Va. 1981) (finding any action taken by a litigant that recognizes
the case as before the court amounts to a general appearance unless such action's
sole purpose is to contest jurisdiction)). The court determined the "[h]usband
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." Id. at 714. "Having invoked the jurisdiction of the court to equitably
distribute all of the parties' property, [the] husband cannot object to the court's
exercise of its authority that he voluntarily invoked." Id.
In Pender, the Arkansas Court of Appeals examined whether the husband
"'consented' to jurisdiction in the Arkansas . . . court when he filed a motion to set
aside the divorce decree based on fraud and improper service of process." 945
S.W.2d at 397. The court found the wife's argument that the husband "cannot use a
'shotgun approach' in 'consenting' to the divorce but not to the division of the
marital pension" to be without merit. Id. The court observed that "[u]nder the
doctrine of divisible divorce, [the wife] could have obtained a dissolution of the
marriage without [the husband]'s consent." Id. The court found the husband did
not acquiesce to the court's jurisdiction by filing a motion to set aside the divorce
decree. Id. The court determined the husband's "actions in requesting a hearing on
the motion were not inconsistent with his position that there was improper
service." Id.
In a Washington Court of Appeals case, In re Marriage of Peck, the wife argued
the husband had consented to jurisdiction when he filed an answer to her petition
for divorce because his answer requested affirmative relief by asking the court to
set child support. 920 P.2d at 238. "The trial court accepted this argument in
denying [the husband]'s motion for reconsideration, reasoning that [the husband]
had seemed to 'contest jurisdiction on some points and admit jurisdiction on
others.'" Id. The husband had "checked various lines for 'admitted' and 'denied' on
a form" in his answer. Id. He had checked "admitted" in response to the paragraph
in the wife's petition alleging child support should be set, then noted on the form's
next page that he denied certain provisions "because: 'This court has no jurisdiction
over [the husband] because [the husband] has never been physically present in the
state . . . . [The husband] does not choose to consent to the jurisdiction of this
court either.'" Id. The appellate court observed the husband "continued to contest
jurisdiction in later pleadings, including a motion to dismiss, a motion to revise the
. . . denial of that motion, and an amended answer to the petition." Id.
The appellate court recognized, "Consent to jurisdiction may be implied by the
service member's general appearance in court . . . ." Id. However, the court further
observed "even where the member has objected to personal jurisdiction . . . , as [the
husband] did, 'he may waive the defense of lack of jurisdiction by seeking
affirmative relief, thereby invoking the jurisdiction of the court.'" Id. at 238-39
(quoting In re Marriage of Parks, 737 P.2d at 1318) (citing Deal v. Deal, 496 So.
2d 1175 (La. Ct. App. 1986)). The court ultimately found that in that case, the
husband had not "consented to jurisdiction or waived his jurisdictional challenge.
By agreeing with [the wife]'s assertion that the parties have children for whom
support should be set according to the standard schedule, he did not seek
affirmative relief." Id. at 239.
The appellate court in Peck distinguished the cases the wife cited: "The husband
in Parks did not contest jurisdiction initially, but prayed for a division of marital
property and for resolution of child custody and maintenance issues," and "the
husband in Deal requested child custody, a reduction in support, and a finding that
the military pension was solely his own property." Id. (citing Parks, 737 P.2d at
1318; Deal, 496 So. 2d at 1176). The court held that in those cases, the "husbands
were seeking affirmative relief, thereby submitting themselves to the jurisdiction of
the court." Id. (citing Livingston v. Livingston, 719 P.2d 166 (Wash. Ct. App.
1986) (finding party who asks court to enforce visitation seeks affirmative relief)).
Whereas the Peck court found the husband "merely acknowledged his
responsibility to provide for the children, as [the wife] proposed. He did not seek
affirmative relief, and therefore did not waive his challenge to the court's
jurisdiction. Nor did [the husband] consent to jurisdiction by asking the court to
award him attorney's fees." Id. Accordingly, the appellate court concluded "the
trial court lacked the necessary personal jurisdiction over [the husband] to divide
his [military] pension under the USFSPA." Id.
In the case of In re Marriage of Akins, the husband continually objected to the trial
court's jurisdiction over his military pension. 932 P.2d at 868. The court found:
"[T]he question of consent under § 1408(c)(4) is not whether the military member
simply waived his right to contest personal jurisdiction under state procedural
rules. Rather, the statutory language requires some form of affirmative conduct
demonstrating express or implied consent to general in-personam jurisdiction." Id.
at 867-68.
In Judkins, the North Carolina Court of Appeals found the trial court had personal
jurisdiction of the husband under § 1408(c)(4). 441 S.E.2d at 140. In that case, the
wife filed an "action seeking a divorce . . . , child custody, child support, alimony,
and equitable distribution," and the husband "filed an answer containing
counterclaims for child custody and support and equitable distribution." Id. The
court determined the husband "made a general appearance thereby consenting to
personal jurisdiction by seeking affirmative relief in his answer without contesting
personal jurisdiction." Id. (emphasis added).
In the present case, the only case the family court cited in its order denying
Husband's motion to dismiss for lack of jurisdiction was a United States Court of
Federal Claims case, Baka v. United States, 74 Fed. Cl. 692 (2006). The facts and
procedural history in that case are different from those in the present case. In that
case, the husband retired from the military in 1977, thus becoming eligible for
retirement pay. Id. at 693. The husband and wife divorced in 1986 in California.
Id. The California court incorporated into the final judgment a stipulation by both
parties giving the wife part of the husband's retirement pay. Id. Shortly thereafter,
the wife applied for and began receiving her share of the retirement pay. Id.
Twenty years later, the husband filed a complaint in the federal claims court
asserting "the wrongful and unlawful taking of a portion of" his military retired
pay. Id. The federal claims court determined, "Although [the husband] claims that
he is a resident of Pennsylvania and that the California court lacked personal
jurisdiction over him, a person 'consents' to the personal jurisdiction of a court by
participating in a proceeding." Id. at 698.
We also must look at South Carolina case law regarding what is required to
maintain an objection to the court's jurisdiction over a party. The Fourth Circuit
Court of Appeals has observed, "The adoption of the present South Carolina Rules
of Civil Procedure abolished the special appearance, but retained the voluntary
appearance." Maybin v. Northside Corr. Ctr., 891 F.2d 72, 74 (4th Cir. 1989).
"Therefore, a general appearance is the only appearance a party can make under
existing procedure." Id. (quoting Dunbar, 295 S.C. at 495, 369 S.E.2d at 151).
"At the same time, [Rule] 12(b)(2)[, SCRCP,] states that the defense of 'lack of
jurisdiction over the person' may be made by motion or by responsive pleading."
Id. The court stated, "Therein lies a paradox in the South Carolina rules. If a
defendant can only make a general appearance, how can he assert his objection to
personal jurisdiction under Rule 12(b) without simultaneously waiving his
objection under Rule 4(d)[, SCRCP]?" Id.
The court found, "Rules of civil procedure must be considered in relation to one
another and construed together. It is clear from Rule 12(b) that a party should be
able to raise an objection to personal jurisdiction without simultaneously waiving it
under Rule 4(d)." Id. (citation omitted). The court observed that this court in
Dunbar v. Vandermore, had "attempt[ed] to solve the riddle caused by the
elimination of the term 'special appearance' from the language of the present rule."
Id. (citing Dunbar, 295 S.C. at 495-97, 369 S.E.2d at 151-52). The court stated
that the defendant in Dunbar "obtained an extension of time from the plaintiff to
file responsive pleadings" and later "moved for an order dismissing the suit on the
grounds that the state court lacked personal jurisdiction over him and subject
matter jurisdiction over the action, and that there was insufficient process and
service of process." Id. (citing Dunbar, 295 S.C. at 494, 369 S.E.2d at 151). The
court explained that this court "noted that 'it is possible under the Rules for a party
to waive the right to question jurisdiction over the person. Rule 12(h)(1)[,
SCRCP,] expressly provides that this right is waived under two circumstances.'"
Id. (quoting Dunbar, 295 S.C. at 496, 369 S.E.2d at 152). The Dunbar "court held
that the defendant had not waived his right to assert jurisdictional defenses merely
by requesting an extension of time." Id. (citing Dunbar, 295 S.C. at 497, 369
S.E.2d at 152-53).
The Fourth Circuit then contrasted Dunbar with another case from this court,
Smalls v. Weed, 291 S.C. 258, 353 S.E.2d 154 (Ct. App. 1987). Maybin, 891 F.2d
at 74. In Smalls, this court held that when a defendant had "appeared and asserted
two claims which went to the merits, in addition to his jurisdictional objection, the
defendant had waived personal jurisdiction." Id. (citing Smalls, 291 S.C. at 260-
61, 353 S.E.2d at 155-56). The Fourth Circuit deduced that "although the term
'special appearance' has been eliminated, the procedure described by that term has
not entirely been discarded." Id. "Smalls and Dunbar teach that if a defendant
appears before the court to contest jurisdiction over his person, and does not
simultaneously address the merits, he has not waived his objection under Rule
4(d)." Id. at 74-75.
In Maybin, the plaintiff "allege[d] that the defendants waived their right to assert a
lack of personal jurisdiction because they simultaneously included arguments
regarding the timeliness of plaintiff's action, the eleventh amendment, and
sovereign immunity" but the Fourth Circuit noted that those issues were all
jurisdictional issues. Id. at 75. The Fourth Circuit determined "[t]he defendants'
objection to personal jurisdiction was not accompanied by any plea to the merits
which implicitly acknowledged jurisdiction of the court. A defendant cannot be
said to have waived personal jurisdiction merely because he alerts the court to
other types of jurisdictional defects." Id.
"[J]urisdiction refers to the authority of a court over a particular person (personal
jurisdiction) or the authority of a court to entertain a particular action (subject
matter jurisdiction), but the concept does not refer to the validity of the claim on
which an action against a person is based." Boan v. Jacobs, 296 S.C. 419, 421,
373 S.E.2d 697, 698 (Ct. App. 1988).
A defense of lack of jurisdiction over the person . . . is
waived (A) if omitted from a motion in the circumstances
described in subdivision (g)[10] or (B) if it is neither made
by motion under this rule nor included in a responsive
pleading or an amendment thereof permitted . . . to be
made as a matter of course.
Rule 12(h)(1), SCRCP.
In a South Carolina federal district court case, the court examined whether the
defendant had "submitted itself to the jurisdiction of the [c]ourt and forfeited any
objection to personal jurisdiction" "by seeking relief under" the federal rule that
provides relief from judgment for fraud, misrepresentation, or misconduct by an
opposing party. Revman Int'l, Inc. v. SEL Mfg. Co., No. 7:17-CV-01944-BHH,
10
Subdivision (g) provides: "A party who makes a motion under this rule may join
with it any other motions herein provided for and then available to him. If a party
makes a motion under this rule but omits therefrom any defense or objection then
available to him which this rule permits to be raised by motion, he shall not
thereafter make a motion based on the defense or objection so omitted, except a
motion as provided in subdivision (h)(2) hereof on any of the grounds there
stated." Rule 12(g), SCRCP.
2019 WL 10893956, at *8 (D.S.C. Mar. 26, 2019). The court noted the defendant's
"filings purport[ed] to reserve the issue of personal jurisdiction for an appropriate
motion to dismiss." Id. "The [c]ourt agree[d] that, before [the defendant] filed its
motion to vacate the default judgment, [it] had not waived its personal jurisdiction
defense through litigation activity." Id. The court observed that nonetheless, "a
court obtains personal jurisdiction over a defendant if the actions of the defendant
during litigation amount to a legal submission to the jurisdiction of the court." Id.
(citing Ins. Corp. of Ireland, 456 U.S. at 704). The court stated that when "a party
seeks affirmative relief from a court, it normally submits itself to the jurisdiction of
the court with respect to the adjudication of claims arising from the same subject
matter." Id. (citing Adam v. Saenger, 303 U.S. 59 (1938)). The court determined
the defendant "submitted itself to the jurisdiction of the [c]ourt" when it "moved
for relief on jurisdictional grounds, but it also sought relief on the grounds of fraud
or misconduct." Id.
The court held that "[w]hile the practice of making special and general appearances
has long since been abandoned in federal courts, [the defendant's] conduct in
seeking relief under [the federal rule for relief from judgment] is the type of
conduct which would have constituted a general appearance under prior law." Id.
The court determined that in that case, the defendant's "motion [for relief from
judgment] was a request for affirmative relief from the [c]ourt on a non-
jurisdictional ground. [The defendant] did not appear solely to conte[s]t
jurisdiction." Id. The court held the defendant had "submitted itself to the
jurisdiction of the [c]ourt" by requesting relief under the federal rule. Id.
I. Defense Finance and Accounting Service Publication and the
Family Court's Order
In the present case, in the family court's order denying Husband's motion to
dismiss for lack of jurisdiction, it quoted language from a Defense Finance and
Accounting Service (DFAS) publication entitled "Guidance on Dividing Military
Retired Pay" (the DFAS Document). DFAS is "the agency charged with
administering and distributing military retired pay." Snodgrass v. Snodgrass, 297
S.W.3d 878, 882 (Ky. Ct. App. 2009). "Additionally, it is responsible for directing
eligible payments to spouses pursuant to the USFSPA. Accordingly, DFAS
procedures are particularly relevant when interpreting award language intended to
result in direct payments to spouses." Crayk v. Glover, 176 P.3d 645, 647 n.2
(Wyo. 2008).
The family court order quoted Section III(B)(2), Requirements for Enforceablity
Under USFSPA, of the DFAS Document11 as stating, "[T]he member indicates his
or her consent to the court's jurisdiction by taking some affirmative action with
regard to the legal proceeding, such as filing any pleading in the case." (emphasis
added by family court) (alteration by family court). A few versions of the DFAS
Document appear online12 and the heading of the DFAS Document contains a
website address13 leading to DFAS's website. However, no version of the DFAS
11
At the hearing on Husband's motion to dismiss, Wife's attorney referenced a
document she had presented—which appears to be the DFAS Document—and
stated:
[U]nder the [USFSPA], and it's actually the attorney's
instruction, that it says one way for a member to consent
to the jurisdiction of the court: "The member indicates
his or her consent to the court's jurisdiction by taking
some affirmative action." The example that they give is,
"such as, filing any responsive pleading in the case."
The document does not appear in the record on appeal.
12
The version that appears to be the one cited by the family court is Garnishment
Operations Directorate, Defense Finance and Accounting Service, Cleveland
Center, Guidance on Dividing Military Retired Pay, available at
http://www.increa.com/articles/division-military-retirement-dual-
coverture/AttorneyGuidance-03-07-2014.pdf (rev. Jan. 29, 2012) (last visited Apr.
29, 2022). This version states at the top: "Disclaimer- this publication is intended
to provide guidance only, and is not legally binding. Legal authority may be found
at Title 10, United States Code, Section 1408, and the DoD Financial Management
Regulation, Volume 7B, Chapter 29, available at
http://comptroller.defense.gov/Portals/45/documents/fmr/current/07b/Volume_07b.
pdf." Other versions also appear online. See, e.g., from a committee of the North
Carolina Bar Association:
https://ms.ng.mil/resources/specialstaff/sja/Documents/Divorce/Dividing_Military
_Retired_Pay.pdf (rev. Feb. 1, 2005) (last visited Apr. 29, 2022); from the Augusta
Bar Association of Augusta, Georgia: https://augustabar.org/Resources/846.pdf
(rev. Jan. 4, 2010) (last visited Apr. 29, 2022).
13
https://www.dfas.mil/garnishment/retiredmilitary/html
Document currently appears on that website.14 Instead, the website states on the
subject of the USFSPA, under the heading of "State Jurisdiction":
[T]o enforce orders dividing retired pay as property, the
state court must have had jurisdiction over the member
by reason of
1) the member's residence in the territorial
jurisdiction of the court (other than because of
military assignment),
2) the member's domicile in the territorial
jurisdiction of the court, or
3) the member's consent to the jurisdiction of the
court.
4) the member indicates his or her consent to the
court's jurisdiction by taking some affirmative
action in the legal proceeding.
Defense Finance and Accounting Service,
https://www.dfas.mil/Garnishment/usfspa/legal/ (last updated Mar. 19, 2019).
In the versions of the DFAS Document found online, immediately following the
language quoted by the family court, a footnote provides a citation to Baka, 74
Fed. Cl. at 698, and also DoDFMR, vol. 7B, subparagraph 290604.A.3. DFAS
Document n.15. The subparagraph15 of the Department of Defense Financial
14
An "info-letter" prepared for the North Carolina State Bar's Standing Committee
on Legal Assistance for Military Personnel states "the information paper,
'Guidance on Dividing Military Retired Pay' (3/17/14 version) that was originally
published by the Defense Finance and Accounting Service . . . was removed from
publication in 2015." Mark E. Sullivan, SILENT PARTNER: Guidance for
Lawyers: Military Pension Division, https://www.nclamp.gov/media/425645/s-mp-
guidance.pdf (last visited Apr. 29, 2022).
15
The numbering of the subparagraph cited by the DFAS Document has changed
from 290604.A.3. to 6.4.1.3 in the current version. See DoD 7000.14-R,
Department of Defense Financial Management Regulation, Volume 7B, Chapter
29: Former Spouse Payments from Retired Pay,
https://comptroller.defense.gov/Portals/45/documents/fmr/archive/07barch/07b_29
_Sep15.pdf (rev. Sept. 2015).
Management Regulation referenced in the footnote, to which the family court also
cites, provides:
In the case of a retired pay award, the designated agent
must be able to determine from the court order that the
court dividing military retired pay had jurisdiction over
the member in one of the following ways: . . . The
member consented to the jurisdiction of the court. If the
court order does not "explicitly" state that the member
consented to the court's jurisdiction, the designated agent
will regard the member's participation in the legal
proceeding, other than to contest the court's jurisdiction,
as evidence of the member's consent to the court's
jurisdiction in the proceeding dividing the member's
military retired pay.
DoD 7000.14-R, Department of Defense Financial Management Regulation,
Volume 7B, Chapter 29: Former Spouse Payments from Retired Pay,
https://comptroller.defense.gov/Portals/45/documents/fmr/current/07b/07b_29.pdf
(rev. June 2021).
The Baka court noted, "The DFAS website specifically explains th[e] principle
[that a person consents to the personal jurisdiction of a court by participating in a
proceeding] to service members in a 'Uniformed Services Former Spouses'
Protection Act Bulletin Fact Sheet,'" which states, "[T]o enforce orders dividing
retired pay as property, the state court must have had jurisdiction over the member
by reason of . . . (3) the member's consent to the jurisdiction of the court, as
indicated by the member's taking some affirmative action in the legal proceeding."
74 Fed. Cl. at 698-99 (quoting DFAS website, available at
http://www.dod.mil/dfas/militarypay/garnishment/fsfact.html (last visited
November 28, 2006)) (emphases added by court) (last alteration by court).
The matters involved in this case at the family court, apart from the military
retirement benefits, included divorce, custody, alimony, equitable apportionment,
and attorney's fees. The couple last resided together in North Carolina but Wife
and the children have resided in South Carolina since 2008. Husband conceded
that because he was served while in South Carolina, the family court had
jurisdiction over him for all matters except for the military retirement.16
J. Application of Law to this Case
Here, Husband never explicitly consented to the family court's jurisdiction over his
military retirement benefits. Therefore, the decision in this case turns on whether
South Carolina would follow the reasoning that consent for purposes of section
1408(c)(4) must be specifically to jurisdiction over military retirement benefits
rather than to the jurisdiction of the court in general. If the statute means consent
to jurisdiction in general, then Husband did so by conceding the family court had
jurisdiction over him for the matters that did not relate to his military retirement
benefits. However, Husband was clear at all times that he objected to jurisdiction
over his military benefits. South Carolina has not specified which definition of
consent it follows in the context of this statute, and as we discussed above, other
states are divided.
We recognize nothing in the record here indicates that Wife engaged in forum
shopping to find a jurisdiction more beneficial to her. Wife and the children live in
South Carolina and that is where she sought a divorce and custody. However, we
note Husband also did not change his domicile or residence in an attempt to avoid
jurisdiction; he continued living in North Carolina in the same house he, Wife, and
their children had lived in together.
Although South Carolina case law does not necessarily provide a clear direction
we might follow, we agree with Husband the consent required by section 1408 is to
16
"The family court has exclusive jurisdiction to hear and determine actions for
divorce. Before the family court can exercise subject matter jurisdiction over a
marriage and grant a divorce, the plaintiff or defendant must have been a
domiciliary of South Carolina." Roesler v. Roesler, 396 S.C. 100, 106, 719 S.E.2d
275, 279 (Ct. App. 2011) (citation omitted) (citing S.C. Code Ann. § 20-3-30
(Supp. 2010)); see also Roy T. Stuckey, Marital Litigation in South Carolina
§ 1.C. (5th ed. 2020) ("In rem jurisdiction refers to the court's power over the
subject of the litigation, for example, the marriage . . . . The family court acquires
jurisdiction over the marriage, and the power to grant a divorce, when one or both
parties meet the statutory requirements to become residents of South Carolina.").
the court's jurisdiction over the military retirement benefits specifically.17 While
we recognize that many states have found a member only has to consent to the
court's jurisdiction in general (and even this can be inferred by the member not
objecting to jurisdiction), we find the reasoning explained by the Wagner court
more persuasive: "While the reference to jurisdiction in § 1408(c)(4)(C) is
unqualified, § 1408(c)(4)(C) contains a reference to § 1408(c)(1)'s specific focus
on the retirement pay." 768 A.2d at 1118. "Reading the language of
§ 1408(c)(4)(C) in context and consistently with the Act's scope and object, we
believe that Congress intended for the consent requirement in § 1408(c)(4)(C) to
relate, like the rest of the Act, specifically to a military member's pension." Id.
"The cardinal rule of statutory construction is for the [c]ourt to ascertain and
effectuate the intent of the Legislature." Gilfillin v. Gilfillin, 344 S.C. 407, 413,
544 S.E.2d 829, 831 (2001). "If a statute's language is plain, unambiguous, and
conveys a clear meaning, then the rules of statutory interpretation are not needed
and a court has no right to impose another meaning." Strickland v. Strickland, 375
S.C. 76, 88, 650 S.E.2d 465, 472 (2007). "The words must be given their plain and
ordinary meaning without resorting to subtle or forced construction which limit or
expand the statute's operation." Id. at 88-89, 650 S.E.2d at 472.
Husband objected to the court's jurisdiction over the retirement benefits at his
earliest opportunity and before he took any further action, such as filing his answer
and counterclaim. He reasserted his objection at every stage of the proceeding,
including in his answer and counterclaim. Therefore, we find he did not explicitly
consent to have his military retirements benefits decided in South Carolina.
17
Husband asserts the family court used the long-arm statute to determine it had
jurisdiction over him in order to divide his military retirement benefits. See S.C.
Code Ann. § 36-2-803(A) (Supp. 2021) (providing South Carolina's long-arm
statute and setting forth the conditions in which it applies); id. (authorizing South
Carolina courts to exercise personal jurisdiction over nonresidents based on acts in
the State of South Carolina by those nonresidents including conducting business,
entering into a contract, committing a tort, or "having an interest in, using, or
possessing real property in this [s]tate"). However, the family court did not use the
long-arm statute; it used the provision of section 1408(c)(4)(C), which requires
consent, and found Husband consented. Husband and the family court simply
disagreed over what section 1408(c)(4)(C) requires for consent.
Accordingly, the family court's decision to divide his military retirement benefits is
reversed.18
CONCLUSION
Accordingly, the family court erred in not first deciding Husband's motion to
dismiss for lack of jurisdiction and not granting him a continuance so that motion
could be decided first. Additionally, the family court erred in finding he consented
to the court's jurisdiction to divide his military retirement benefits. Therefore, the
family court's decision is
REVERSED.
GEATHERS and MCDONALD, JJ., concur.
18
We reverse only as to the family court's division of the military retirement
benefits. Husband conceded the family court had jurisdiction over all other matters
before it including child custody, child support, and equitable division of property
other than the military retirement benefits, and he does not appeal any of those
determinations.