Ferguson v. Ferguson , 1994 Ind. App. LEXIS 511 ( 1994 )

GARRARD, Judge.

Christina Ferguson (Christina) appeals the trial court's decision that it had no jurisdiction to enforce a foreign spousal support order under Indiana's Uniform Reciprocal Enforcement of Support Act (URESA).¹ We affirm.

FACTS AND PROCEDURAL HISTORY

In 1987 Christina and her husband, John Ferguson (John), obtained a divorce in Great Britain, which included an order for John to pay spousal maintenance. Christina came to Indiana to live, and John went to Germany to work for the United States Air Force as a civilian employee.

On December 7, 1990, Christina filed a verified petition for registration and enforcement of a foreign support order in the Allen Cireuit Court. The petition alleged that John lived in Germany but claimed his residence in Indiana. The petition also maintained that John had property in the United States subject to the jurisdiction of the court, namely civilian pay and retirement benefits held by the United States Air Force Finance Center in Denver, Colorado. Christina requested an order garnishing these benefits for her spousal support and arrearage.

John was served with the petition in West Germany by certified mail return receipt requested. Christina's subsequent motion for default judgment was granted, and the court issued an order for enforcement of the foreign spousal support decree against John's military benefits on April 9, 1991. Almost one year later, on March 9, 1992, John filed a motion for relief from judgment pursuant to Ind. Trial Rule 60, alleging that the enforcement order was void for lack of jurisdiction. On July 27, 1998, the court granted John's motion for relief from judgment, finding that it lacked both in personam and in rem jurisdiction in this case. Christina appeals this ruling.

DISCUSSION

Initially, we address John's contention that Christina may not argue in rem Jurisdiction because this action was originally brought as an in personam proceeding.

While John maintains that Christina did not allege that this proceeding was in rem in nature until the submission of briefs on the Jurisdictional issue in the trial court, we must disagree. Christina's petition included the following:

11. That the respondent has property in the United States of America which is subject to an order of this court, to wit: certain civilian pay and retirement benefits held by the U.S. Air Force Finance Center, Central Disbursing Center, Denver, Colorado.

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WHEREFORE the petitioner prays that the court confirm the registration of the support order with the clerk of this court and issue an order to the U.S. Air Force Finance Center, Central Disbursing Center, Denver, Colorado to withhold from the respondent's income payable to him the sum of $100.00 dollars per week on the arrearage until paid in full and the sum of $193.95 per week for support until further order of this court.

(R. 4-5). Further, Christina's response to John's motion for relief from judgment stated:

8. In addition to the jurisdiction of this court as being in personam, the nature of the action is also in rem. The action is also against the property of the respondent being his wages and retirement benefits with the U.S. Air Force. Those items being intangible and not having a definite situs, they are reachable though [sic] an order of this court.

(R. 22).

The record of this appeal plainly shows that Christina did not seek to modify the existing spousal support order, but she simply filed to register and enforce the order against John's military benefits. In Hexter v. Hexter (1979), 179 Ind.App. 638, 386 N.E.2d 1006, involving two lawsuits seeking enforcement of three foreign judgments for arrearages in child support payments, we stated that where a suit is one to enforce an existing judgment, and not one for the purpose of adjudicating some underlying controversy between the parties, exercise of in rem jurisdiction over the defendant's property in Indiana was not precluded on the theory that the defendant had no contact with the State of Indiana that would support in personam jurisdiction. Id. at 1007. See also Brown v. Rock (1987), 184 Ga.App. 699, 362 S.E.2d 480 (in an action seeking domestication of a judgment in order to eventually garnish against property owned in the state, personal jurisdiction is not required).² Clearly, the relief sought by Christina against John's military benefits rendered this action an in rem or quasi in rem proceeding.

Christina does not appeal the trial court finding with regard to in personam jurisdiction; however, she contends that the court was incorrect in concluding it did not have in rem jurisdiction because John did not own or have control over any property located in the State of Indiana. Christina argues that John's military benefits are in the possession of the United States government, and that therefore the situs of the benefits is with the United States government. Since the United States government is present and domiciled in each of the fifty states, Christina concludes that the circuit court had in rem jurisdiction over those benefits.

In support of her argument, Christina relies almost exclusively on Michigan Trust Co. v. Probasco (1902), 29 Ind.App. 109, 63 N.E. 255, involving a dispute as to which of two estates owned certain stocks. The court found that in rem jurisdiction was established in the state where the company issuing the stocks was located. Here, Christina reasons, since the military benefits have as their situs the United States government, which is present in all fifty states, the trial court had in rem jurisdiction.

However, as Christina has forthrightly noted to this court, authority exists contradicting her position. In Williamson v. Williamson (1980), 155 Ga.App. 271, 270 S.E.2d 692, aff'd, (1981), 247 Ga. 260, 275 S.E.2d 42, the court held that the military salary of a nonresident Californian is not property within the State of Georgia so as to confer in rem jurisdiction to Georgia courts.

Relying on Williamson, the same result was reached in Polacke v. Superior Court (App.1991), 170 Ariz. 217, 823 P.2d 84, which involved a special action attacking the trial court's denial of an ex-husband's motion to dismiss, for lack of personal jurisdiction, his ex-wife's action to determine child support arrearages and garnish military retirement benefits under a domesticated foreign judgment. As the ex-husband had neither minimum contacts with the state nor any property located in the state, the court addressed the issue of whether his military retirement benefits could be considered constructively present in the state for the purpose of establishing quasi in rem jurisdiction. The court concluded that 42 U.S.C. § 659(a) removes the sovereign immunity bar only to allow garnishment of the salaries of federal employees for child support and alimony payments; it does not increase the jurisdiction of courts. Id. at 90.³ The court concluded that military benefits that are neither issued nor received in the state cannot be considered constructively present to afford quasi in rem jurisdiction. Id. at 90-91.

Christina urges us to find that Williamson and Polacke are wrongly decided. She reasons that, under Probasco, the situs of intangible property is where the holder is located. Because the United States, the holder of the military benefits, is present in all fifty states, Christina concludes the situs of the military benefits is in Indiana. - Alternatively, Christina contends that Williamson and Po-lacke are distinguishable because in both cases the respondents lived in the United States and were within the jurisdiction of a United States court. Here, as John was outside the country, Christina maintains that there was no other convenient forum in the United States in which to file the action.

We conclude that the reasoning in Polacke and Williamson is sound, and the Probasco case does not cause us to alter our opinion. Under Christina's reasoning, an action could be filed in any state in the nation to garnish military benefits, regardless of where the defendant was located or where the military benefits were issued. Property must have some minimum contacts with the forum state in order to comport with due process:

In a true in rem proceeding, in order to subject property to a judgment in rem, due process requires only that the property have certain minimum contacts with the territory of the forum such that maintenance of the proceeding affecting that property ... does not offend traditional notions of fair play and substantial justice.

Chapman v. Vande Bunte (1985), N.C., 604 F.Supp. 714, 716-17.

Here, the military benefits were not issued or received in Indiana We find that Christina's argument that the military benefits were present in the state is too tenuous to establish the minimum contacts necessary to satisfy the demands of due process. We also note that Christina is not barred from pursuing her claim in a forum which would afford John due process; however, Christina cannot pursue a claim against a nonresident in a forum where he has no contacts or property simply by domesticating a valid foreign judgment. See Polacke, 823 P.2d at 91.

Judgment affirmed.

SHARPNACK and HOFFMAN, JJ., concur.

1 . Ind.Code § 31-2-1.

2 . John argues that a support action is an in personam proceeding and that Christina's petition to register and enforce a foreign support order was in personam in nature, citing Jennings v. Jennings (1988), Ind.App., 531 N.E.2d 1204. However, Jennings involved actual child support proceedings seeking an order of support, which clearly requires in personam jurisdiction. Here, a valid support order, issued by a court having personal jurisdiction over both parties, already existed. This case is analogous to the situation involved in Polacke v. Superior Court (App.1991), 170 Ariz. 217, 823 P.2d 84, cited by John for a different proposition, in which a wife petitioned the court to determine child support arrearages and enforce an existing valid foreign judgment. The court noted that such a proceeding is not one in personam but is a quasi in rem action: "Under such circumstances, an Arizona court is not necessarily required to obtain in personam jurisdiction over a non-resident obligor, either to execute on the foreign judgment or to adjudicate the amount past due." Id. at 88.

3 . While Christina attempts to distinguish her case by arguing that she relies on 10 U.S.C. § 1408 instead of 42 U.S.C. § 659(a), we find nothing in the statute to warrant a different result.