Marriage of Sullivan ( 2023 )

Filed 3/21/23
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of LISA and
JEREMIAH J. SULLIVAN, III.
D079481
LISA SULLIVAN,
Respondent, (Super. Ct. No. D560631)
v.
JEREMIAH J. SULLIVAN III,
Appellant.
Original proceeding on a petition for writ of mandate challenging a
judgment and order of the Superior Court of San Diego County, Enrique
Camarena and James Mangione, Judges. Relief granted.
Stephen Temko and Dennis Temko for Appellant.
Higgs Fletcher & Mack, John Morris, Rachel M. Garrard, and Steven
Brunolli for Respondent.
Jeremiah J. Sullivan, III, appeals from a stipulated judgment of
dissolution of marriage. He challenges a 2018 order that was incorporated
into the stipulated judgment, in which the family court found that it lacked
jurisdiction to divide his ex-wife Lisa Sullivan’s military pension under the
Federal Uniformed Services Former Spouse’s Protection Act (FUSFSPA).
(10 U.S.C. § 1408.) Jeremiah argues that the court erred because Lisa
“consent[ed] to the jurisdiction of the Court.” (Id. at subd. (c)(4)(C).)
We conclude that the stipulated judgment is not appealable because it
does not resolve all issues between the parties. At the parties’ joint request,
however, we exercise our discretion to treat the appeal as a petition for writ
of mandate. On the merits, we reject the trial court’s ruling that a service
member must explicitly and specifically consent to the court’s authority to
divide her military retirement under the FUSFSPA. We further conclude
that Lisa did consent to the jurisdiction of the court within the meaning of
the FUSFSPA by voluntarily filing her dissolution petition in California,
seeking a judicial confirmation of “all” her separate property acquired before
marriage, asking the court to determine “any” community property assets,
and requesting the appointment of an expert under Evidence Code section
730 to determine a proposed division of the parties’ retirement accounts.
Accordingly, we will grant appropriate writ relief directing the family court to
vacate the stipulated judgment and the relevant portion of the 2018 order.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Marriage
Lisa joined the military in August 1993. She and Jeremiah met at the
Naval Justice School in Newport, Rhode Island in 1994. They are both
lawyers. Lisa has remained on active duty as a Navy lawyer continuously
since her graduation from Naval Justice School. Jeremiah serves in the Navy
Reserves and has his own law practice in California.
Lisa and Jeremiah were married in December 2000. They have two
children. Lisa is currently eligible to retire from the Navy with full benefits
2
but has chosen to remain on active duty in San Diego. She is not licensed to
practice law in California.
B. Petition for Dissolution of Marriage
In April 2016, Lisa filed a petition for dissolution of marriage in San
Diego County Superior Court using Judicial Council Form FL-100. In section
9b of the petition, she asked the court to “[c]onfirm as [her] separate
property . . . [a]ll property acquired prior to the date of marriage . . . .” In
section 10b, she also asked the court to “[d]etermine rights to community and
quasi-community assets and debts” and checked a corresponding box that
was pre-printed with the language: “All such assets and debts are
listed . . . as follows (specify): . . . .” In the blank space immediately below,
she specified: “The nature and extent of any community and quasi-
community assets and debts are unknown to Petitioner at this time and are
to be determined during the course of this proceeding.” She then listed four
real properties and a sailboat and concluded: “Petitioner desires the parties
to reach a full agreement on all issues.”
Lisa also sought spousal support from Jeremiah. In his response,
Jeremiah sought spousal support from Lisa.
C. Dispute Over Lisa’s Military Pension
In January 2018, the parties participated in an unsuccessful private
mediation. At the mediation, Jeremiah notified Lisa that he would be
making a “Gillmore election” for immediate payment of his interest in her
military retirement benefits. (In re Marriage of Gillmore (1981) 29 Cal.3d
418 (Gillmore).)1 In response, Lisa “rejected any notion that [Jeremiah] was
1 In Gillmore, the Supreme Court held that if a spouse is eligible to
receive retirement benefits at the time of dissolution, but chooses not to, the
non-employee spouse may demand immediate compensation for his or her
community property share of the retirement benefit. (Gillmore, supra, 29
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entitled to [a] Gillmore election.” Jeremiah’s counsel sent a follow-up letter
again notifying Lisa that he was making a Gillmore election.
The next month, Lisa filed a request for order appointing an expert
under Evidence Code section 730. Specifically, Lisa requested that an expert
be appointed to determine various matters relating to spousal support and
division of property, including her “separate and the community interest in
[her] investment accounts and the parties’ retirement accounts,” and to
prepare “a proposed division of the investment and retirement accounts.” In
a paragraph of her supporting declaration captioned “Retirement Division
and Investment Division”, Lisa noted that “Jeremiah and I both will receive
military retired pay when we retire,” as well as additional retirement and
non-retirement accounts. Lisa asserted: “The community and separate
interests in those accounts must be determined to permit us to equitably
divide the community estate. Accordingly, I request that the Court appoint
an Evidence Code section 730 expert to perform the necessary analysis to
divide those accounts.”
Two months later, in April 2018, Jeremiah filed a request for order for
immediate division and payment of Lisa’s military retirement benefits under
Gillmore. In response, Lisa filed a declaration objecting to the court’s
exercise of jurisdiction over her military retirement benefits under FUSFSPA
Cal.3d at pp. 422–429.) The court noted that there were “various ways” to
order the compensation, including immediate payment of the full present
value or monthly payments over time. The court stated that “the exact
method of distribution must be left to the discretion of the trial court . . . .”
(Id. at p. 429.) The court further emphasized: “Any inequities caused by the
immediate distribution of retirement benefits can be resolved through
adjustments in spousal support.” (Id. at p. 428.) California courts have
consistently applied Gillmore to military retirement benefits. (See, e.g., In re
Marriage of Castle (1986) 180 Cal.App.3d 206, 214–215; In re Marriage of
Jacobson (1984) 161 Cal.App.3d 465, 472–473 (Jacobson).)
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and In re Marriage of Tucker (1991) 226 Cal.App.3d 1249 (Tucker). She also
filed a separate motion for leave to amend her petition for marital dissolution
to object to the court’s exercise of jurisdiction over her military retirement
benefits.2 In her declarations, Lisa asserted that when she filed her petition,
she did not know that she could object to the court’s jurisdiction over her
military retirement benefits; she first learned that she could object after
Jeremiah filed his Gillmore request; and if Jeremiah’s Gillmore request were
granted, she would not be able to support herself and the children, she would
likely have to leave the Navy, and she would have to relocate because she is
not licensed to practice law in California.
Jeremiah argued that Lisa had consented to the court’s jurisdiction
over her military pension by voluntarily filing her dissolution petition in
California, submitting herself to the court’s jurisdiction, and asking the court
to determine the parties’ rights to community and quasi-community assets
and debts. He also argued that having so consented, Lisa could not divest the
court of jurisdiction by retracting her consent.
D. Family Court’s FUSFSPA Ruling
In September 2018, the family court (Hon. Enrique Camarena) held a
hearing on matters including its jurisdiction over Lisa’s military retirement
benefits. The court issued a tentative ruling orally at the beginning of the
2 As part of this motion, Lisa sought leave to amend the allegation of her
petition that she was a resident of California. She explained that she was in
California only on military orders, and her domicile was actually in New
Jersey. Because Jeremiah does not argue that the trial court had jurisdiction
over Lisa’s military pension by virtue of her place of residence or domicile,
this is not relevant to our decision.
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hearing, then adopted its tentative as the final ruling after hearing from
counsel.
The court ruled that it lacked jurisdiction over Lisa’s military
retirement benefits because Lisa had never “explicitly” consented to such
jurisdiction under FUSFSPA, title 10 United States Code section
1408(c)(4)(C). It concluded that Lisa’s mere filing of the dissolution petition
was not enough because there was “no explicit indication that Lisa consented
to the court’s division of the military pension” and “[h]er failure to object
cannot be deemed to constitute consent.” The court further noted: “Here,
Lisa specifically listed in Section 10(b) of the petition the community property
that she wanted the court to divide . . . . And . . . the paragraph that she
typed out ‘as listed below’ does not include the military pension in that
paragraph.”
The court also rejected Jeremiah’s argument that Lisa had consented
by affirmatively requesting the appointment of an expert to determine the
parties’ respective interests in their retirement accounts. The court
explained: “[I]t is not consent. Because it’s not explicit. It’s at best
implied . . . . But until she tells me explicitly, ‘I’m okay with the Court
dividing my military pension,’ I think it is a bright line.”
The family court acknowledged: “I don’t think there’s been a case that
explicitly states what I’m finding. In my view, that’s the straight
interpretation of [title 10 United States Code section] 1408. We should have
an explicit consent.”
Following the hearing, the court issued a minute order denying
Jeremiah’s Gillmore request. The court explained: “In order for a court to
obtain jurisdiction to divide a pension by way of consent, it makes sense that
such consent should be to the division itself, and not to some ancillary
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matter. . . . As in Tucker, in this case Lisa consented only ‘to the trial court’s
resolution of certain portions of the dissolution action.’ . . . The Petition and
the Response listed the property the parties were dividing, without listing the
military pension.” “[T]here is no explicit indication that Lisa consented to the
California court’s division of her military pension. Lisa’s failure to object to
California’s jurisdiction to divide certain enumerated property apart from the
pension cannot be deemed to constitute consent to divide the pension itself.”
Distinguishing In re Marriage of McDonough (1986) 183 Cal.App.3d 45(McDonough), the court stated: “Here, in contrast, Lisa did not affirmatively
request that the court divide all of the parties’ community property. On the
contrary, Lisa specifically listed, in section 10(b) of the Petition, the
community property to be divided between the parties; the military pension
was not included on that list.” “[A]bsent Lisa’s explicit consent, the Court
lacks jurisdiction to divide her military pension.”
The court also found that Lisa did not consent to jurisdiction by
requesting appointment of an expert to propose a division of the parties’
retirement accounts. The court explained: “Lisa’s acknowledgment that the
military pension existed is not a consent to jurisdiction. Certainly seeking an
expert evaluation to assist in even distribution of the community
property . . . is a way to promote and hasten settlement or prepare for trial.”
In light of this ruling, Lisa withdrew her request to amend her petition.
Jeremiah filed a premature notice of appeal from the court’s order
denying his Gillmore request. (Sullivan v. Sullivan (May 15, 2020, D075177)
[nonpub. opn.].) We dismissed the appeal because it was not from an
appealable order or final judgment.
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E. Stipulated Judgment
In June 2021, the parties agreed to a stipulated judgment of marital
dissolution, which was signed and filed by the court. As to Lisa’s military
retirement benefits, the judgment states: “There is no agreement that [Lisa]
submits to California jurisdiction over her military retirement benefits
acquired as a result of her service with the U.S. Navy. The findings and
orders detailed in the Findings and Orders after Hearing filed December 6,
2018 with regard to jurisdiction to divide and apportion [Lisa]’s military
retired pay, and [Jeremiah]’s request for immediate award pursuant to the
Gillmore case, are incorporated as part of this judgment to permit [Jeremiah]
to appeal that issue . . . .”
As to child support, the stipulated judgment states that each party will
pay their own childcare costs, but it also provides: “The Court reserves
jurisdiction to order child support retroactive to May 1, 2020, until after a
decision is rendered on [Jeremiah]’s appeal of the Gillmore/jurisdiction issue
that he has raised or upon the written agreement between the parties.”
As to spousal support, the stipulated judgment merely states: “The
Court reserves jurisdiction to order spousal support retroactive to May 1,
2020, until after a decision is rendered on [Jeremiah]’s appeal of the
Gillmore/jurisdiction [issue] he has raised or upon written agreement
between the parties. Spousal support jurisdiction shall terminate upon
either party’s remarriage, death or further order of the Court.”
Jeremiah has now appealed from the stipulated judgment.
DISCUSSION
I
We requested supplemental briefing from the parties on the
appealability of the stipulated judgment. We now conclude that the
8
judgment is not appealable, but we exercise our discretion to treat it as
petition for writ of mandate.
“Ordinarily a judgment entered pursuant to a stipulation is not
appealable.” (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1508, fn. 1.)
“But an exception exists where the appellant’s consent to judgment was given
merely to facilitate an appeal following the trial court’s adverse
determination of a critical issue.” (Ibid.) As the stipulated judgment recites,
the parties here consented to the stipulated judgment to facilitate an appeal
from the trial court’s 2018 ruling on Jeremiah’s Gillmore request for
immediate payment of his community property interest in Lisa’s military
retirement benefits. (Gillmore, supra, 29 Cal.3d 418.)
“However, the exception may not be invoked when . . . the stipulated
judgment fails to dispose of all claims between the parties.” (Harrington-
Wisely v. State of California (2007) 156 Cal.App.4th 1488, 1496.) Here, each
party sought spousal support from the other, but the stipulated judgment
does not dispose of the issue. The stipulated judgment merely states that the
trial court reserves jurisdiction to order spousal support (retroactive to
May 1, 2020) until after a decision is rendered in this appeal. A similar
provision states that the trial court reserves jurisdiction to order child
support retroactively until after the disposition of this appeal. Without a
final determination of the support issues, we conclude that the stipulated
judgment is not appealable. (See, e.g., In re Marriage of Griffin (1993) 15
Cal.App.4th 685, 687–689 [order valuing community property not an
appealable final judgment where spousal support and other property issues
remained to be determined].)
We must therefore consider whether to treat the appeal as a writ
petition. In response to our request for supplemental briefing, the parties
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jointly requested that we treat the appeal as a writ petition because the
remaining support issues cannot be determined without first resolving the
issues over Lisa’s military pension and its effect on the parties’ respective
incomes; the jurisdictional issue regarding Lisa’s military pension is fully
briefed and the record is adequate to decide the matter; there is no indication
that the trial court would appear as a party in a writ proceeding; and it would
be a waste of judicial and party resources to remand the matter back to the
trial court when a key jurisdictional issue affecting the amount of income
available for support remains unresolved. In these circumstances, we agree
that it is appropriate to treat the appeal as a writ petition and we exercise
our discretion to do so. (See, e.g., Olson v. Cory (1983) 35 Cal.3d 390, 400–
401; H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357,
1366–1367.)
II
On the merits, the sole issue before us is whether the family court erred
in ruling that it lacked jurisdiction over Lisa’s military retirement benefits
under FUSFSPA. Jeremiah argues that Lisa expressly and impliedly
consented to the court’s jurisdiction over her military retirement. Lisa
argues that FUSFSPA consent cannot be implied and that she never
expressly consented to have the court divide her military pension.
A. Standard of Review
As the parties acknowledge, the jurisdictional issue is subject to de
novo review because there are no material factual issues in dispute. (Robbins
v. Foothill Nissan (1994) 22 Cal.App.4th 1769, 1774.)
B. FUSFSPA
Congress enacted FUSFSPA after the United States Supreme Court’s
ruling in McCarty v. McCarty (1981) 453 U.S. 210, which held that federal
10
law preempted the application of a state’s community property laws to divide
a military pension. In response, “Congress sought to change the legal
landscape created by the McCarty decision.” (Mansell v. Mansell (1989) 490
U.S. 581, 587 (Mansell).) By enacting FUSFSPA, Congress gave state courts
the power to divide military pensions according to state law under specified
conditions. (10 U.S.C. § 1408(c)(1); Tucker, supra, 226 Cal.App.3d at p. 1254.)
Under FUSFSPA, a state court may not exercise the power to divide a
military pension “unless the court has jurisdiction over the [service] member
by reason of (A) his residence, other than because of military assignment, in
the territorial jurisdiction of the court, (B) his domicile in the territorial
jurisdiction of the court, or (C) his consent to the jurisdiction of the court.”
(10 U.S.C. § 1408(c)(4).) The “minimum contacts” theory of personal
jurisdiction is “conspicuously” and “purposefully absent” from this list. (In re
Marriage of Hattis (1987) 196 Cal.App.3d 1162, 1167 (Hattis).) As a result, a
service member’s minimum contacts with the forum alone are insufficient to
confer jurisdiction over her to divide a military pension. (Ibid.)
Congress enacted this jurisdictional provision “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.”
(Hattis, supra, 196 Cal.App.3d at p. 1167; see also Mansell, supra, 490 U.S. at
p. 591 [“[10 U.S.C.] § 1408(c)(4) prevents spouses from forum shopping for a
State with favorable divorce laws”].) Title 10 United States Code section
1408(c)(4) now provides the exclusive means for a state court’s exercise of
personal jurisdiction over a service member in dividing her military pension.3
(Hattis, at p. 1167.)
3 Some California courts have construed the FUSFSPA in terms of both
personal and subject matter jurisdiction. (See, e.g., McDonough, supra, 183
11
C. Consent to Jurisdiction Under FUSFSPA
As noted, the trial court ruled that it lacked jurisdiction over Lisa’s
military pension under section 1408(c)(4)(C) because she did not give explicit
and specific consent to the court’s division of her military pension. We
disagree and conclude that Lisa did “consent to the jurisdiction of the court”
within the meaning of FUSFSPA. (10 U.S.C. § 1408(c)(4)(C).)
We begin with established principles of personal jurisdiction under
both state and federal law. “Consent may be a basis for personal
jurisdiction.” (Thomson v. Anderson (2003) 113 Cal.App.4th 258, 266.) “A
person’s consent to jurisdiction ‘may be expressed by words or by conduct.’ ”
(Szynalski v. Superior Court (2009) 172 Cal.App.4th 1, 7 (Szynalski), quoting
Rest.2d, Conf. of Laws (1971) § 32, com. a.) “Consent to a court’s jurisdiction
may also be implied by conduct.” (Nobel Farms, Inc. v. Pasero (2003) 106
Cal.App.4th 654, 658 (Nobel Farms), italics added.) “A variety of legal
arrangements have been taken to represent express or implied consent to the
personal jurisdiction of the court.” (Insurance Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee (1982) 456 U.S. 694, 703 (Insurance
Corp.), italics added.)
“Specifically, when a party has availed itself of the courts of California,
that party is held to have impliedly consented to [personal] jurisdiction in
Cal.App.3d at p. 52 [“When Congress enacted FUSFSPA, it limited the
subject matter jurisdiction over military pension benefits to those instances
in which personal jurisdiction existed over the military spouse other than by
virtue of military assignment”].) This makes no difference to our analysis of
the consent issue. By allowing a service person to consent to the court’s
exercise of personal jurisdiction over her, and thereby consent to the court’s
subject matter jurisdiction over her military pension, Congress necessarily
created an exception to the usual rule that subject matter jurisdiction cannot
be conferred by consent.
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any action related to the action it brought.” (Sea Foods Co., Ltd. v. O.M.
Foods Co., Ltd. (2007) 150 Cal.App.4th 769, 786 (Sea Foods).) “The United
States Supreme Court has also long recognized that when a nonresident
plaintiff commences an action, he submits to the court’s personal jurisdiction
on any cross-complaint filed against him by the defendant. . . By choosing a
particular forum, plaintiff is considered to have voluntarily submitted to the
court’s jurisdiction ‘for all purposes for which justice to the defendant
requires his presence.’ ” (Nobel Farms, supra, 106 Cal.App.4th at p. 658; see
also Rest.2d Conf. of Laws (1988 rev.) § 34 [“A state has power to exercise
judicial jurisdiction over an individual who brings an action in the state with
respect to a claim that arose out of the transaction which is the subject of the
action or is one that may in fairness be determined concurrently with that
action”].) “The plaintiff having, by his voluntary act in demanding justice
from the defendant, submitted himself to the jurisdiction of the court, there is
nothing arbitrary or unreasonable in treating him as being there for all
purposes for which justice to the defendant requires his presence. It is the
price which the state may exact as the condition of opening its courts to the
plaintiff.” (Adam v. Saenger (1938) 303 U.S. 59, 67–68.)
We conclude that these general principles of law apply to the consent
provision of the FUSFSPA. (10 U.S.C. § 1408(c)(4)(C).) Although we
recognize that courts in other jurisdictions are divided on the issue, we find
more persuasive the majority view that a service member need not give
specific or explicit consent to the court’s jurisdiction to divide her military
pension. As one court has explained: “[F]ederal law at the time the
[FUSFSPA] was enacted in 1982 recognized consent to jurisdiction could be
express or implied (also referred to as constructive). In particular, precedent
recognized implied consent to personal jurisdiction by participating in state
13
court proceedings. Congress is presumed to have known this at the time it
enacted [FUSFSPA], and we further presume Congress meant to incorporate
that meaning unless it stated otherwise. . . . Congress did not express a
contrary intent when it adopted the [FUSFSPA].” (In re Marriage of
Williams (Kan. 2018) 307 Kan. 960, 978 [417 P.3d 1033, 1045].) We agree
that when Congress authorized “jurisdiction over the [service] member by
reason of . . . his consent to the jurisdiction of the court” (10 U.S.C.
§ 1408(c)(4)), it presumptively intended to incorporate existing law on express
or implied consent to personal jurisdiction.
We therefore reject the trial court’s ruling that a service member must
explicitly and specifically consent to the court’s authority to divide her
military retirement. (See Captain Kristine D. Kuenzli, Uniformed Services
Former Spouses’ Protection Act: Is There Too Much Protection for the Former
Spouse? (1999) 47 A.F. L. Rev. 1, 19 [noting that the “majority of
jurisdictions” have rejected such a requirement].) “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 [FUSFSPA] only requires consent to the jurisdiction of the
court, not consent to the court’s authority to divide the pension.” (Ibid.)
“Had Congress intended specific consent to be a requirement, it would
have been a simple matter to draft the statute to do so.” (Kildea v. Kildea
(Wis.Ct.App. 1988) 143 Wis.2d 108, 114 [420 N.W.2d 391, 393] [holding that
FUSFSPA “only requires consent to the jurisdiction of the court, not consent
to the court’s authority to divide the pension”]; see also Pierce v. Pierce (Miss.
2014) 132 So.3d 553, 562 [“Other states 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
14
consent under Section 1408(c)(4)(C)”]; Davis v. Davis (Ariz.Ct.App. 2012) 230
Ariz. 333, 337 [284 P.3d 23, 27] [“we agree 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”]; Judkins v. Judkins (1994) 113 N.C.App. 734, 737 [441 S.E.2d
139, 140] [holding defendant consented to personal jurisdiction under
FUSFSPA by making a general appearance and seeking affirmative relief in
his answer without contesting personal jurisdiction]; White v. White
(La.Ct.App. 1989) 543 So.2d 126, 127–128 [holding FUSFSPA “does not
require express consent” and service member “can give implied consent to a
state’s jurisdiction by making a general appearance, waiving all jurisdictional
objections . . . .”].)
We find unpersuasive the minority view that a service member must
expressly and specifically consent to the court’s jurisdiction over her military
retirement benefits. (See, e.g., Williams v. Williams (S.C.Ct.App. 2022) 436
S.C. 550, 595 [873 S.E.2d 785, 809–810]; Wagner v. Wagner (2001) 564 Pa.
448, 461 [768 A.2d 1112, 1119].) These cases relied on the fact that the
FUSFSPA jurisdictional provision begins with the language: “A court may
not treat the disposable retired pay of a member in the manner described in
paragraph (1) unless the court has jurisdiction over the member by reason
of . . . .” (10 U.S.C. § 1408(c)(4), italics added.) They reason that because the
referenced “paragraph (1)” deals with the division of military retirement
benefits, the consent provision of subdivision (c)(4)(C) must be read to require
the service member’s specific consent to such a division. (Williams, at p. 595;
Wagner, at p. 461.)
In our view, this reading conflicts with the plain meaning of the statute
and conflates FUSFSPA’s substantive law provision (subdivision (c)(1)) and
15
its jurisdictional provision (subdivision (c)(4)). The substantive law provision
merely states that a state court may treat military retirement 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.” (10 U.S.C.
§ 1408(c)(1), italics added.) In other words, it allows state courts to apply
substantive state law in adjudicating the division of military retirement
benefits. The jurisdictional provision in turn states that a court may divide
military retirement pay “in the manner described” in the substantive law
provision if “the court has jurisdiction over the [service] member by reason of”
her residence, domicile, or consent. (10 U.S.C. § 1408(c)(4).) In other words,
state substantive law will apply to the division of a military pension under
subdivision (c)(1) only if the state court has jurisdiction over the service
member by reason of her residence, domicile, or consent under subdivision
(c)(4). But the statute does not in any way suggest that the phrase
“jurisdiction over the [service] member by reason of” her “consent to the
jurisdiction of the court” (10 U.S.C. § 1408(c)(4)(C)) requires explicit consent
to the court’s jurisdiction over military retirement pay.
California cases are consistent with our reading of the statute. In
McDonough, for example, the husband checked a box on the Judicial Council
form requesting that the court determine all property rights of the parties—
but did not specifically mention his military pension. (McDonough, supra,
183 Cal.App.3d at pp. 50–51.) Yet the court still concluded that the husband
had “consented to the personal jurisdiction of the California court for
purposes of determining the couple’s property rights (which included the
military retirement benefits) . . . .” (Id. at p. 52; see also Jacobson, supra, 161
Cal.App.3d at p. 470 [by electing to respond to wife’s petition and foregoing
his motion to dismiss on forum non conveniens ground, husband made a
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general appearance and thereby consented to the jurisdiction of the court and
the application of the substantive law of California under FUSFSPA].)
Based on our interpretation of the statute, we conclude that Lisa
consented to the court’s jurisdiction over her to divide her military pension.
It was Lisa who chose to file her petition for dissolution of marriage in a
California court. By doing so, she voluntarily submitted herself to the court’s
jurisdiction and consented to its personal jurisdiction over her in any matter
related to the dissolution proceeding. (See Sea Foods, supra, 150 Cal.App.4th
at p. 786; Nobel Farms, supra, 106 Cal.App.4th at pp. 658–659.) The division
of Lisa’s military retirement benefits (attributable to her Navy employment
both before and after the marriage) was directly related to her request for
confirmation of her separate property and division of the community
property. (See In re Marriage of Wilson (1974) 10 Cal.3d 851, 854 (Wilson)
[“Pension rights which result from employment both before and after
marriage derive from both separate and community property” and “must be
apportioned upon division of the assets”].)
In her dissolution petition, Lisa specifically asked the court to
“[c]onfirm as [her] separate property . . . [a]ll property acquired prior to the
date of marriage . . . .” (Italics added.) This necessarily included the portion
of her military retirement attributable to her Navy employment before
marriage, which constituted her separate property. (In re Marriage of
Stenquist (1978) 21 Cal.3d 779, 788; Fam. Code, § 770, subd. (a)(1).) Lisa also
asked the court to determine her rights to any community property assets
acquired during the marriage. Although the filled-out portion of her petition
only listed four real properties and a sailboat as community property, it also
stated more broadly: “The nature and extent of any community and quasi-
community assets and debts are unknown to Petitioner at this time and are
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to be determined during the course of this proceeding.” (Italics added.) Thus,
the petition used broad language to request a judicial determination of Lisa’s
rights to “any” community property. The portion of Lisa’s military retirement
attributable to her Navy employment during the marriage is community
property. (Wilson, supra, 10 Cal.3d at p. 854.) And Lisa’s petition also
expressed her desire for “a full agreement on all issues” relating to the
community property. By asking the court to confirm as her separate property
all property acquired before marriage, and determine her rights to any
community property acquired during the marriage, Lisa consented to the
court’s exercise of jurisdiction over her military retirement benefits.
Finally, Lisa specifically asked the court to appoint an expert under
Evidence Code section 730 to determine her “separate and the community
interest in . . . the parties’ retirement accounts” and “a proposed division of
the . . . retirement accounts.” Contrary to the trial court’s ruling, this was
not merely an “acknowledgment that the military pension existed . . . .” Lisa
deliberately invoked the court’s legal authority to appoint an expert to assist
it in dividing property at issue in the dissolution proceeding, including the
parties’ retirement accounts. (Evid. Code, § 730; In re Marriage of Drivon
(1972) 28 Cal.App.3d 896, 898.) By affirmatively invoking the authority of
the court to assist in dividing the retirement accounts, Lisa once again
consented to the court’s jurisdiction over her military retirement benefits.
(See Szynalski, supra, 172 Cal.App.4th at p. 8 [“Seeking and obtaining the
benefits of court action is another means of expressing consent to the court’s
jurisdiction”]; Sea Foods, supra, 150 Cal.App.4th at pp. 786–787 [out-of-state
creditor that availed itself of California’s summary attachment procedure
thereby subjected itself to personal jurisdiction in debtor’s related fraud
action]; see also Insurance Corp., supra, 456 U.S. at p. 704 [“the Court has
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upheld state procedures which find constructive consent to the personal
jurisdiction of the state court in the voluntary use of certain state
procedures”].)
The Tucker decision is consistent with our holding. In contrast to this
case, the service member in Tucker was the respondent, not the petitioner
who filed for dissolution and chose the forum. The service member in Tucker
did not voluntarily submit himself to the court’s jurisdiction; he never
expressly or impliedly consented to allow the court to divide his military
pension; and his counsel explicitly objected to the court’s jurisdiction over his
military pension at every stage of the proceedings, starting with his initial
conversation with the petitioner’s counsel. (Tucker, supra, 226 Cal.App.3d at
pp. 1252–1253, 1258.) The facts of this case bear little resemblance to
Tucker.4
In sum, we conclude that the trial court had jurisdiction over Lisa and
her military retirement benefits “by reason of . . . [her] consent to the
4 In Tucker, the court ruled that a service member “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.” (Tucker,
supra, 226 Cal.App.3d at p. 1256.) Although this may be so when the service
member is the responding party in a dissolution proceeding, as in Tucker, it is
questionable whether a service member who files for dissolution in a
California court may simultaneously withhold consent to the court’s exercise
of jurisdiction over her military pension. This would be contrary to the usual
rule that the plaintiff who chooses the forum impliedly consents to personal
jurisdiction in related matters. (Sea Foods, supra, 150 Cal.App.4th at p. 786;
Nobel Farms, supra, 106 Cal.App.4th at pp. 658–659.) Moreover, Congress’s
concern about forum-shopping does not apply to a service member like Lisa,
who is the petitioner and voluntarily chose the forum herself. We need not
decide this question, however, because Lisa did not withhold her consent to
the court’s jurisdiction over her military pension when she filed her
dissolution petition and specifically requested judicial confirmation of her
separate property and her interest in any community property.
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jurisdiction of the court.” (10 U.S.C. § 1408(c)(4).) Lisa concedes that “[o]nce
a party has generally consented to a court’s jurisdiction, it may not be
attacked later.” (In re Marriage of Sarles (1983) 143 Cal.App.3d 24, 29.)
Accordingly, the trial court erred by finding that it lacked jurisdiction to
divide Lisa’s military pension.
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to
(1) vacate the stipulated judgment and the portion of its order of
September 12, 2018 denying Jeremiah’s request for an order dividing Lisa’s
military pension, (2) enter a new order granting Jeremiah’s request for a
division of Lisa’s military pension and determining its value and the
appropriate manner of distribution, and (3) conduct further proceedings
necessary to resolve any remaining issues, including spousal support.
Jeremiah is entitled to recover his costs in this proceeding.
BUCHANAN, J.
WE CONCUR:
DATO, Acting P. J.
DO, J.
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