Bullis v. Bullis

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Fitzpatrick
Argued at Alexandria, Virginia

DANIEL JOSEPH BULLIS
OPINION BY
v. Record No. 2265-94-4 JUDGE JAMES W. BENTON, JR.
MARCH 12, 1996
REGINA BULLIS

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Richard J. Jamborsky, Judge

Edward A. Shackelford for appellant.
Gwendolyn Jo M. Carlberg for appellee.

This appeal arises from a circuit court judgment entered in

an action brought pursuant to the Uniform Enforcement of Foreign

Judgments Act. Code §§ 8.01-465.1 to 8.01-465.5. The appellant,

Daniel Joseph Bullis, contends that the trial judge erred in

converting to a Virginia judgment an Arizona judgment that

awarded his former wife, Regina Bullis, a portion of his military

retirement pay. For the reasons that follow, we affirm the

circuit court's judgment.

I.

The appellee, a resident of Arizona, commenced this action

in 1994 in the Circuit Court of Fairfax County, Virginia, against

appellant, a resident of Virginia, to obtain a Virginia judgment

based upon a judgment she obtained in the Superior Court for the

County of Maricopa in the State of Arizona. See Aetna Casualty &
Surety Co. v. Whaley, 173 Va. 11, 3 S.E.2d 395 (1939). In her

"Petition for Judgment," appellee alleged jurisdiction "pursuant

to the Uniform Enforcement of Foreign Judgments Act,
§ 8.01-465.1, et seq., of the . . . Code of Virginia," pursuant

to "§ 8.01-466, et seq., of the . . . Code of Virginia," and

pursuant to "the Uniform Services Former Spouse's Protection Act

(USFSPA), 10 U.S.C. [§] 1401 et seq."

Appellee also alleged that the parties were divorced July 6,

1982, in Arizona and that the divorce decree equitably divided

all their community, joint, and common property. She further

alleged that on September 24, 1992, a court of record in Arizona

entered an order that modified the 1982 divorce decree pursuant

to the USFSPA and awarded her "one half of the community interest

in the disposable military retirement pay of the [appellant]."

Appellee alleged that appellant resided in Fairfax County, was

retired from active duty with the United States Army, and was

receiving military retirement benefits.
Appellant filed a demurrer in which he alleged that relief

was not available under 10 U.S.C. § 1408(a)(4) because he retired

from the military under Chapter 61 disability and that appellee

had been denied payment when she forwarded her claim to the

Defense Finance and Accounting Service. When a judge overruled

the demurrer, appellant filed an answer generally denying the

allegations in the petition.

II.

The parties agree upon the essential facts. The appellant

joined the United States Army in December 1961 and married

appellee in November 1964. They were divorced in Arizona by a

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final decree entered July 6, 1982. The decree equitably divided

between them all community, joint, and common property without

any reference to retirement pay.

On September 24, 1992, an Arizona superior court granted

appellee's petition to modify the final divorce decree and

awarded appellee "one-half of the community interest in the

disposable military retirement pay of . . . Daniel Joseph Bullis,

upon his retirement." The order also stated the following:
The community interest is to be determined by
the fraction whereby the numerator is the
number of months that [Daniel Joseph Bullis]
was in the service during the marriage of the
parties, or 212 months, over the denominator,
which will be the total number of months that
[he] has been and will remain in the Armed
Services until retirement.

The order further stated that "[appellant was] neither . . .

present [nor] represented by counsel, although counsel for . . .

[appellant had] been previously notified of this hearing;" that

federal legislation enacted after McCarty v. McCarty, 453 U.S.

210 (1981), entitled appellee to file a claim for a portion of

appellant's disposable military retirement payments; that the

court observed and complied with the Soldiers and Sailors Civil

Relief Act of 1940; and that the court had jurisdiction under

Arizona law to modify the final decree and order a division of

the retirement payments. Appellant did not appeal from the

Arizona order modifying the final divorce decree.

The trial judge found the Arizona judgment to be valid and

entered a Virginia judgment awarding appellee "a sum equal to

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one-half . . . of the disposable interest of [appellant's]

nondisability, nonexempt military retired pay on a monthly basis

pursuant to the percentage formula under the amended law of 1986

of 10 U.S.C. [§] 1408, Uniformed Services Former Spouses

Protection Act." Based upon a finding that appellant retired

from the military in March 1993 with a permanent disability

rating of 60% and received $596.85 per month "nondisability,

nonexempt, disposable portion of retired pay," the trial judge

entered judgment awarding appellee $294.43 monthly and $4,774.80

in arrearages, computed from the date of appellant's retirement.

The trial judge retained jurisdiction "pending [appellee's]

first receipt of payment for her portion in monthly retired pay,

the sum certain amount to be determined by the Defense Finance

and Accounting Service in Indianapolis, Indiana according to the

formula established by the Arizona court." In addition, the

trial judge retained jurisdiction "to reflect any increase in the

cost of living adjustment (COLA) which [appellant] may have

received pending first payment to [appellee]" and ordered other

relief. This judgment order is the subject of this appeal.
III.

Appellant has not addressed in his brief the statute that

confers jurisdiction in this Court to entertain his appeal.

Appellee does not contest jurisdiction. We are required,

however, to ascertain our jurisdiction before proceeding. West
v. Commonwealth, 18 Va. App. 456, 445 S.E.2d 159 (1994), appeal

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dismissed, 249 Va. 241, 455 S.E.2d 1 (1995); In re O'Neil, 18 Va.

App. 674, 446 S.E.2d 475 (1994). In Virginia, "[t]he general

appellate jurisdiction . . . is in the Supreme Court and not in

the Court of Appeals." West, 18 Va. App. at 458, 445 S.E.2d at

160. This Court's appellate jurisdiction in civil cases "is

limited to the subject matter set forth in Code §§ 17-116.05 and

17-116.05:1." West, 18 Va. App. at 457, 445 S.E.2d at 159. In

pertinent part, Code § 17-116.05 provides as follows:
Any aggrieved party may appeal to the Court
of Appeals from:
* * * * * * *

3. Any final judgment, order, or decree of
a circuit court involving:

a. Affirmance or annulment of a
marriage;
b. Divorce;
c. Custody;
d. Spousal or child support;
e. The control or disposition of a
child;
f. Any other domestic relations matter
arising under Title 16.1 or Title 20;
or
g. Adoption under Chapter 11 (§ 63.1-220
et seq.) of Title 63.1;

4. Any interlocutory decree or order
entered in any of the cases listed in
this section (i) granting, dissolving,
or denying an injunction or (ii)
adjudicating the principles of a cause.

In Carlton v. Paxton, 14 Va. App. 105, 415 S.E.2d 600,

aff'd, 15 Va. App. 265, 422 S.E.2d 423 (1992) (en banc), the

appellant appealed to this Court from a chancery court proceeding

that was instituted as an independent action pursuant to Code

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§ 8.01-428 to set aside an order of adoption. The trial judge

had refused to set aside a final decree of adoption after the

evidence proved the child's father had not received notice.

Relying upon the literal language in Code § 17-116.05(3)(g), this

Court ruled by order that jurisdiction did not lie because "the

appeal is not from a final decree involving adoption."

(Unpublished order, May 1, 1991). When the appeal was

transferred to the Supreme Court, that Court ruled by order that

a decree refusing to vacate or set aside an order of adoption is

a final decree involving adoption. See Carlton v. Paxton, Record

No. 910689 (May 15, 1991). Applying that ruling, this Court held

in a later case that an appeal from a final order entered in an

independent action brought pursuant to Code § 8.01-428 to set

aside a decree for fraud was appealable to this Court. Khanna v.

Khanna, 18 Va. App. 356, 357 n.1, 443 S.E.2d 924, 925 n.1 (1994).

The Court reasoned that the underlying cause was an annulment

and, therefore, jurisdiction was proper under Code

§ 17-116.05(3)(a). Id.

The rulings in Carlton and Khanna suggest that jurisdiction

over this appeal lies in this Court. Although this action was

instituted in the circuit court for the purpose of domesticating

and enforcing a judgment of another state, the subject matter of

the underlying issue involved a domestic relations matter. As in

Khanna, we conclude that jurisdiction over an appeal from a final

judgment must be based upon an assessment of the underlying

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cause. See 18 Va. App. at 357 n.1, 443 S.E.2d at 925 n.1.

Because the underlying cause in this case is a decree involving a

divorce, we hold that this Court has jurisdiction to review the

final judgment.

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 IV.

Appellant raises the following issues on this appeal:
1. Whether the Court erred in determining
that there was any military retired pay which
fell within the definition of "disposable"
under 10 U.S.C. [§] 1408 when the parties
were divorced on July 6, 1982 and Appellant
was later retired under Chapter 61, 10 U.S.C.
for disability.

2. Whether the Court erred in determining
that the November 16, 1986 amendment to 10
U.S.C. [§] 1408 was controlling, rather than
the original September 8, 1992 Act
(retroactive to June 25, 1981) which was the
controlling statute fixing the definition of
"disposable retired pay" at the time of the
divorce order.
3. Whether the Court erred in awarding the
appellee a sum equal to one-half (1/2) of the
disposable amount of the husband's military
retired pay in disregard of Code of Virginia,
1950, as amended, § 20-107.3(G)(1).

4. Whether the Court erred in awarding an
amount certain in monthly entitlement and
arrearages, without hearing evidence and
applying all applicable law.

5. Whether the Court erred in awarding
counsel fees to the Wife.

6. Whether the Court erred in issuing an
order with internal inconsistencies as to the
determination of entitlements and arrearages.

Although none of these issues expressly challenge the

validity of the Arizona judgment, the Arizona judgment is the

basis upon which the trial judge entered the judgment. "The

United States Constitution, as well as federal and state

statutes, requires the courts of this state to give full faith

and credit to a judgment rendered in another state, provided the

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foreign court had jurisdiction over the parties and the subject

matter." Hupp v. Hupp, 239 Va. 494, 499, 391 S.E.2d 329, 332

(1990).

Citing Fauntleroy v. Lum, 210 U.S. 230, 237 (1908), the

Supreme Court has further held as follows:
The effect of the Full Faith and Credit
Clause was to render the foreign judgment
immune from reexamination for error in the
domestic court. Therefore, even if the
[state] court [whose judgment is being
enforced] had erred with respect to the
enforceability of the underlying transaction
(by misperceiving the law of [another
jurisdiction]) the remedy for that error was
direct appeal, not collateral attack in the
courts of a sister state.

Coghill v. Boardwalk Regency Corp., 240 Va. 230, 233, 396 S.E.2d

838, 839 (1990). Neither the trial court nor this Court has the

power to correct any alleged mistakes in the Arizona court's

application of the law when rendering its judgment. Thus, to the

extent appellant collaterally attacks the Arizona court's alleged

misapplication of the law, this Court cannot reexamine the

Arizona ruling.

V.

To clarify the parties' disagreement, we briefly address the

history concerning a state's ability in divorce decrees to divide

military retirement benefits as property. In 1981, the United

States Supreme Court held in McCarty v. McCarty, 453 U.S. 210,

223 (1981), that federal law precludes state courts from dividing

military retirement benefits pursuant to state community property

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laws. Congress responded to McCarty by enacting the USFSPA,

which enabled state courts to treat "disposable retired or

retainer pay . . . 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." Pub. L. No. 97-252, 96 Stat.

730, 731 (1982) (codified as amended at 10 U.S.C. § 1408(c)(1)

(1994)). The USFSPA was effective on February 1, 1983, and

applied to disposable retired pay payable after June 25, 1981,

the day of the McCarty decision, and to court orders entered
after that date. Pub. L. No. 97-252, 96 Stat. 730, 737, § 1006

(1982); see also Mansell v. Mansell, 490 U.S. 581, 588 n.7

(1989).

When first enacted, the USFSPA excluded all Chapter 61

disability benefits, see 10 U.S.C. § 1201, from the definition of

"disposable" retired pay, effectively sheltering all Chapter 61

disability benefits from distribution to military spouses in

divorce actions. 10 U.S.C. § 1408(a)(4). Thus, if a service

member retired under Chapter 61 with a disability rating, all of

that member's pay was excluded from the definition of disposable

retired pay. However, on November 14, 1986, Congress amended the

USFSPA to exempt only the portion of a member's retired pay

attributable to the member's disability. Pub. L. No. 99-661, 100

Stat. 3887, § 644(a)(1) (1986) (codified as amended at 10 U.S.C.

§ 1408 (a)(4)(C) (1994)). The 1986 amendment further stated that

the amendment "shall apply with respect to court orders issued

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after the date of the enactment of this Act." Id. at § 644(b).

With that backdrop, the Superior Court for the County of

Maricopa, Arizona, entered an order on September 24, 1992,

modifying the parties' final decree of divorce as follows:
IT IS, THEREFORE, ORDERED, ADJUDGED AND
DECREED:

The Decree of Dissolution of Marriage
entered in this cause on July 6, 1982 is
hereby modified to award to Petitioner,
Regina Bullis, her one-half of the community
interest in the disposable military
retirement pay of the Respondent, Daniel
Joseph Bullis, upon his retirement. The
community interest is to be determined by the
fraction whereby the numerator is the number
of months that Respondent was in the service
during the marriage of the parties, or 212
months, over the denominator, which will be
the total number of months that Respondent
has been and will remain in the Armed
Services until retirement.

Appellant does not contend that the Arizona court lacked

personal or subject matter jurisdiction to enter the order.

Furthermore, we note that the Arizona Supreme Court has held that

Arizona Revised Statutes § 25-327(A) and Rule 60 of the Arizona

Rules of Civil Procedure grant Arizona trial courts the power to

reopen final divorce decrees entered after McCarty, and before
enactment of USFSPA. Under this ruling, former spouses may claim

a community interest in the disposable military retirement pay of

the military member. See Edsall v. Superior Court, 693 P.2d 895,

897-901 (Ariz. 1984). Thus, to the extent that appellant's first

two issues challenge the validity of the Arizona judgment, we

conclude the trial judge did not err in ruling that the Arizona

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judgment modifying the parties' final divorce decree was valid

under Arizona law. The record also supports the trial judge's

finding that neither party appealed the Arizona judgment. Thus,

the trial judge did not err in beginning his analysis by giving

full faith and credit to the Arizona judgment.

VI.

Appellant first contends that the trial judge erred in

determining that his Chapter 61 disability retired pay is

"disposable" retired pay within the meaning of 10 U.S.C. § 1408.

He argues the applicable law is the original USFSPA, not the

USFSPA as amended in 1986. This issue arises because the 1992

Arizona decree did not address whether the original or amended

USFSPA controlled the definition of "disposable retired pay."
The parties' final divorce decree was entered on July 6,

1982, after the McCarty decision but before the enactment of the

USFSPA. Obviously, appellant cannot claim the McCarty ban

protects him from having his retired pay considered as property

subject to division in a state court divorce proceeding. When

Congress enacted the USFSPA, "Congress sought to change the legal

landscape created by the McCarty decision." Mansell, 490 U.S. at

587-88. Moreover, Congress chose June 25, 1981, the day before

the McCarty decision, as the applicable date for restoring

partial state authority over military retirement benefits. Id.

at 588 n.7. By express provision, Congress included within the

coverage of USFSPA divorce decrees such as the parties' decree,

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entered after McCarty and modified under the law of the state

granting the divorce. Thus, the only issue before the trial

judge was whether the term "disposable retired pay" was governed

by the original USFSPA or the 1986 amended USFSPA, now in effect.

The original text of the USFSPA defined "disposable retired

or retainer pay" as follows:
"Disposable retired or retainer pay" means
the total monthly retired or retainer pay to
which a member is entitled (other than the
retired pay of a member retired for
disability under Chapter 61 of this title)
less amounts which . . . .

10 U.S.C. § 1408(a)(4) (emphases added). According to the plain

language of the statute, Chapter 61 military pensions are

sheltered in their entirety from division at divorce. See also

Mansell, 490 U.S. at 589. If, for example, a service member

retired under Chapter 61 with a disability rating of 60%, all of

that member's pay fell outside the definition of "disposable" pay

and could not be apportioned by a state court order.

Congress removed the total exclusion on Chapter 61 retired

pay when it amended the USFSPA's definition of "disposable

retired pay" effective November 14, 1986, by Public Law 99-661.

Section 644(a) of the revised USFSPA changed subsection (a)(4) of

the original Act and inserted in lieu thereof the following

language:
(4) The term "disposable retired pay" means
the total monthly retired pay to which a
member is entitled less amounts which . . . .

(C) in the case of a member entitled
to retired pay under Chapter 61 of

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this title, are equal to the amount
of retired pay of the member under
that chapter computed using the
percentage of the member's disability

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 on the date when the member was
retired. . . .

10 U.S.C. § 1408(a)(4)(C) (emphases added).

The amended version of the USFSPA therefore exempts only

that portion of Chapter 61 benefits which corresponds to the

retiree's disability percentage rating at the time of retirement.

If, for example, a service member retires with 60% disability

under Chapter 61, then 60% of the member's retirement benefits

are excluded from the definition of "disposable retired pay."

The remaining 40% of the member's benefits may be judicially

apportioned under state community property laws.
In addition to the revised definition of "disposable retired

pay," § 644(b) of the 1986 amended USFSPA contains the following

clause:
EFFECTIVE DATE. -- The amendments made by
subsection (a) shall apply with respect to
court orders issued after the date of the
enactment of this Act [November 14, 1986].

Currently, 32 C.F.R. 63.6(e)(2) states that "[f]or court orders

issued on or before November 14, 1986 (or amendments thereto)

disposable retired [pay] does not include retired pay of a member

retired for disability under 10 U.S.C. Chapter 61."

To support his argument that none of his retired pay is

"disposable" within the meaning of the USFSPA, appellant relies

on Wallace v. Fuller, 832 S.W.2d 714 (Tex. Ct. App. 1992). In

Wallace, the service member and his wife were divorced in 1966.

The divorce decree contained no reference to retirement benefits.

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 Id. at 715. The service member retired in 1973 with a Chapter

61 disability rating of 60%. Id. at 718. The trial judge

modified the divorce decree on October 9, 1986, and awarded the

service member's former wife a portion of his Chapter 61

benefits. Id. at 715-16. The Texas Court of Appeals reversed

the judgment, holding that the original USFSPA, then in effect,

did not treat Chapter 61 disability pay as disposable income.

Id. at 718.
Wallace provides little guidance in deciding this case

because all the significant events in Wallace -- i.e., the

divorce, retirement from the military, and the modified order --

occurred before November 14, 1986, the effective date of the

amended Act. In the case before us, the initial Arizona divorce

decree was entered in 1982. However, the Arizona court modified

the final order on September 24, 1992, after the effective date

of the amended USFSPA. Likewise, appellant retired in 1993,

after the effective date of the amended Act.

When Congress amended the USFSPA in 1986 to revise the

definition of "disposable retired pay," the amended Act stated in

plain terms that the amendment made to the USFSPA "shall apply

with respect to court orders issued after the date of the
enactment of this Act." Pub. L. No. 99-661, 100 Stat. 3887,

§ 644(b) (1986) (emphasis added). Furthermore, the amended Act

provides that "[t]he term 'court order' means a final decree of

divorce . . . (including a final decree modifying the terms of a

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previously issued decree of divorce . . . .)." 10 U.S.C. § 1408

(a)(2) (emphasis added). Thus, the 1992 Arizona order, which is

an order modifying the 1982 final decree, is a court order within

the USFSPA's definition of "court order." Furthermore, that

order was issued after November 14, 1986, the effective date of

the amended Act.

Appellant contends, however, that Carmody v. Secretary of

the Navy, 886 F.2d 678 (4th Cir. 1989), contains a definition of

"court order" under the USFSPA that supports his position. In
Carmody, the original California divorce decree, entered on

October 1, 1965, was also silent as to the division of the

military pension. Id. at 679. The decree was modified on

September 9, 1986, to award the member's former wife 29% of his

military retirement benefits. Id. On the wife's appeal from the

trial judge's ruling that she was not entitled to avail herself

of the direct payment provision of USFSPA, the Fourth Circuit

affirmed the judgment and ruled that the California order

modified a divorce decree which predated the McCarty decision of
June 26, 1981. Id. at 680. Nothing in the Court's recitation of

the definition of "court order" supports appellant's contention

in this case. See id. at 681.

Alternatively, appellant argues that the 1992 Arizona

modification order retroactively applies the amended USFSPA and

impairs his substantive or vested rights. We disagree. The

amended USFSPA plainly states that the Act will not be given

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retroactive effect, but shall apply to "court orders" issued

after the effective date of enactment. We agree with appellee

that the 1992 modification order is a "court order" as defined by

the Act because it is "a final decree modifying the terms of a

previously issued decree of divorce." 10 U.S.C. § 1408(a)(2).

The modification order does not retroactively apply the Act.

Moreover, even if appellant's vested rights argument had

merit, appellant cannot now challenge in a Virginia court the

effect of the 1992 Arizona order. That ruling, directing a

division of his military retirement benefits, was made by an

Arizona court applying Arizona and federal laws. Appellant could

have raised his vested rights arguments on appeal in the Arizona

courts and is precluded from collaterally attacking this non-

jurisdictional issue. See Liberty Mut. Ins. Co. v. Eades, 248

Va. 285, 288, 448 S.E.2d 631, 633 (1994); Coghill, 240 Va. at

233, 396 S.E.2d at 839. Because the 1992 Arizona judgment is a

"court order" under the USFSPA, the trial judge did not err in

applying the amended Act and ruling that appellee is entitled to

receive "one-half of the community interest in appellant's

disposable military retirement pay" under the USFSPA in effect in

1992.

VII.

Appellant also contends the trial judge erred in awarding

appellee one-half of the entire disposable amount of his military

retired pay. He contends that appellee was only entitled to

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one-half of the "marital share," the designation provided in

Virginia law. See Code § 20-107.3(G)(1). Appellant's reliance

on Virginia law is misplaced. Under the Uniform Enforcement of

Foreign Judgments Act, Code § 8.01-465.1 et seq., the trial judge

correctly ruled that the "community interest" is determined by

Arizona law. "We have only the foreign judgment before us, not

the underlying transaction on which it was based." Coghill, 240

Va. at 235, 396 S.E.2d at 840.
We note, however, that the judgment order of the Circuit

Court of Fairfax County is internally inconsistent. The initial

two paragraphs of the order and paragraphs numbered 2, 3, 7, and

12 correctly recite that the Arizona court awarded the appellee

"one-half (1/2) of the community property interest in the

disposable military retired pay." Other paragraphs of the order

are inconsistent with these recitations and the Arizona judgment.

For example, numbered paragraph 5 refers to "one-half (1/2) of

the disposable interest of . . . military retired pay," and

numbered paragraph 11 refers to "marital share."

Appellee agrees that "[t]he duty of the Virginia trial court

. . . was to give the Arizona order full faith and credit."

Because the circuit court is only enforcing the Arizona judgment,

the judgment order must apply the community property interest

formula specified in the Arizona order. The provisions in the

circuit court's order that are inconsistent with the Arizona

order are obvious drafting errors that must be corrected on

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remand. In particular, we note that the calculations contained

in numbered paragraph 6 are also based on the drafting error and

must be corrected.

VIII.

Appellant also contends the trial judge erred in (1)

ordering monthly and arrearage amounts without regard to income

tax law changes and without hearing any evidence or applying

applicable law, (2) awarding a definite monthly amount, in

addition to stating that the Defense Finance and Accounting

Service would set "the sum certain," and (3) awarding appellee

her attorney's fees. Appellant failed to object to these issues

in the trial court below and is barred from raising them on

appeal. Rule 5A:18.
For these reasons, the judgment is affirmed and remanded for

correction of the drafting errors referred to in Part VII of this

opinion.

Affirmed and remanded.

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