Pender v. Pender

Marianne PENDER v. Paul PENDER

CA 96-334                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division IV
                 Opinion delivered May 21, 1997


1.   Evidence -- admission of testimony -- trial court's discretion. -- It is
     within the trial court's discretion whether to admit
     testimony, and its decision will not be reversed absent
     manifest abuse of discretion.

2.   Jurisdiction -- federal law places strict limitation on state court's
     exercise of jurisdiction concerning military retirement pay. -- United
     States Code, Title 10, section 1408, places a strict
     limitation on a state court's exercise of jurisdiction to
     dispose of military retirement pay; this federal law preempts
     the application of Ark. Code Ann.  16-4-101 (1987), which
     would determine whether appellee had minimum contacts with the
     state sufficient to confer jurisdiction over his person.

3.   Jurisdiction -- construction of limited jurisdiction conferred by statute -
     - strict as to extent and liberal as to proceedings. -- Where limited
     jurisdiction is conferred by statute, the construction ought
     to be strict with respect to the extent of the jurisdiction
     but liberal with respect to the proceedings.

4.   Jurisdiction -- personal jurisdiction -- limitations under 10 U.S.C. 
     1408. -- Under 10 U.S.C.  1408, no jurisdiction could be
     exercised over appellee by a state court unless he was a
     resident of Arkansas, was domiciled in the state, or had
     consented to the jurisdiction of the court.

5.   Words & phrases -- "consent" defined. -- þConsentþ has been defined
     as a concurrence of wills; voluntarily yielding the will to
     the proposition of another; acquiescence or compliance
     therewith; agreement; approval; permission.

6.   Jurisdiction -- appellee did not acquiesce or waive objection to 
     jurisdiction when he filed motion to set aside divorce decree and appeared
     for hearing. -- The appellate court concluded that appellee did
     not acquiesce to the chancery courtþs jurisdiction when he
     filed a motion to set aside the divorce decree; further, the
     appellate court concluded that appellee's appearance at a
     hearing on his motion did not constitute a waiver of his
     objection to personal jurisdiction; appelleeþs actions in
     requesting a hearing on the motion were not inconsistent with
     his position that there was improper service.

7.   Appeal & error -- no convincing authority cited -- issue affirmed. --
     Where appellant cited no convincing authority in support of
     her position that appellee consented to the jurisdiction of
     the chancery court, the appellate court affirmed the trial
     court on the issue.

8.   Jurisdiction -- chancery court's decision that it lacked jurisdiction to
     divide appellee's military pension not clearly erroneous. -- Where
     appellee was not a resident of Arkansas or domiciled in
     Arkansas at any relevant time for the purpose of subjecting
     his person to the jurisdiction of the state's courts, none of
     the jurisdictional factors prescribed by federal statute
     (residence, domicile, or consent) were satisfied, and, the
     appellate court held, the chancery court's decision that it
     lacked personal jurisdiction to divide appellee's military
     pension was not clearly erroneous.


     Appeal from Faulkner Chancery Court;  Charles E. Clawson,
Chancellor; affirmed.
     Kenneth G. Fuchs, for appellant.
     Jesse W. Thompson, for appellee.

     Wendell L. Griffen, Judge.
     This is an appeal from an order of the Faulkner County
Chancery Court holding that it lacked personal jurisdiction over
appellee Paul Pender to divide his military pension, thus failing
to grant appellant Marianne Pender that portion of the pension that
was marital property.  We hold that the chancellor's decision was
not clearly erroneous.  Therefore, we affirm.  
     The parties were originally married in 1972.  They divorced in
Mississippi County, Arkansas, in 1980.  Some time later, the couple
reconciled and lived together in a common-law marriage in Texas
until June 1991 when they separated.  Appellant moved to Faulkner
County, Arkansas, while appellee moved to Oklahoma.  Appellant
filed for divorce in the Faulkner County Chancery Court in October
1993, alleging that she served appellee in Oklahoma with the
summons and divorce complaint by certified letter.  Appellee signed
for the certified mail on October 18, 1993, but filed no answer
within the thirty-day deadline.  The trial court set a hearing date
of January 25, 1994, after which appellant was granted an
uncontested divorce, and, among other things, one-half of
appelleeþs military retirement pension.  The decree was amended
twice to comply with the Air Forceþs requirements for a qualified
domestic relations order, and the last amended decree was filed on
September 19, 1994.  
     On September 22, 1994, appellee filed a motion to set aside
the divorce decree and amended divorce decree based upon fraud
(alleging that the parties had already been divorced in 1980), and
that he was never served with the summons and complaint but did
receive other documents by certified mail.  The trial court heard
this matter on August 25, 1995, taking testimony only on the issue
of whether appellee received service of process.  After the
hearing, the trial court found that appellee had been properly
served and ordered the parties to submit briefs on the issue of
whether it had jurisdiction to divide appelleeþs pension. 
Subsequently the chancellor found that federal law precluded the
court from asserting jurisdiction to divide the military retirement
benefits, and, therefore, that it lacked personal jurisdiction to
divide the military pension.  It is from this ruling that appellant
appeals.
     Appellant first argues that the trial court erred in limiting
the testimony regarding appelleeþs contacts with the state in
resolving the issue of whether Arkansas could exercise personal
jurisdiction over appellee.  Appellant failed to abstract the final
order of the trial court containing the rulings from which she has
appealed, abstracting nothing past the chancellorþs remarks in open
court.  However, appellee submitted an abstract that cured
appellantþs deficiencies, thus allowing us to review her appeal. 
Appellee abstracted the last amended divorce decree, filed of
record on November 27, 1995, which included the following findings:
that the court had jurisdiction to hear the divorce action and that
service of process on appellee was proper; that the court had no
personal jurisdiction over appellee; that under U.S.C.A.  1408
(c)(4), the court had no personal jurisdiction over appellee to
divide appelleeþs military pension; and that under the case of
Janni v. Janni, 271 Ark. 953, 611 S.W.2d 785 (Ark. App. 1981), the
court lacked personal jurisdiction to award further relief to
appellant.  We will, therefore, address this appeal on the merits,
specifically addressing the issue of whether the trial court erred
in limiting testimony on the issue of whether the court had
personal jurisdiction over appellee, and whether the trial court
erred in finding that it lacked personal jurisdiction over
appellee.  
     It is within the trial court's discretion whether to admit
testimony, and its decision will not be reversed absent manifest
abuse of discretion.  Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995).  Appellant asserts that appellee consented to the
jurisdiction of the Arkansas courts when he filed a motion to set
aside the divorce decree and amended divorce decree.  However, 10
U.S.C.A.  1408 states in part:
A court may not treat the disposable retired or retainer
pay of a member in the manner described in paragraph (1)
[dividing and making award to spouse as marital property]
unless the court has jurisdiction over the member by a
reason of (a) his residence, other than because of
military assignment, (b) his domicile in the territorial
jurisdiction of the court, or (c) his consent to the
jurisdiction of the court.

Appellee is correct in his argument that section 1408 places a
strict limitation on the courtþs exercise of jurisdiction to
dispose of his military retirement pay.  This federal law preempts
the application of Ark. Code Ann.  16-4-101 (1997), which would
determine whether appellee had þminimum contactsþ with the state
sufficient to confer jurisdiction over his person.  
     In Southern v. Glenn, 677 S.W.2d 576 (Tex. Ct. App. 1984), the
Texas Court of Appeals held that the þminimum contactsþ 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).  Southern further held that the fact that
a defendant in such a case meets the minimum-contacts test is not
determinative on the issue of personal jurisdiction where the
defendant does not meet the terms of the federal statute regulating
disposition of military retirement pay. Id. 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.   Further, it is well
settled in this state that where limited jurisdiction is conferred
by statute, the construction ought to be strict as to the extent of
the jurisdiction, but liberal as to the proceedings.  Woods v.
Woods, 285 Ark. 175, 686 S.W.2d 387 (1985) (citing Wood v. Wood, 54
Ark. 172, 178, 15 S.W. 459 (1891)).
     Under 10 U.S.C.A.  1408, no jurisdiction could be exercised
over appellee unless he was a resident of Arkansas, domiciled in
the state, or consented to the jurisdiction of the court.  Where
appellant was not a resident of Arkansas or domiciled in the state,
the issue presented is whether appellee þconsentedþ to jurisdiction
in the Arkansas chancery court when he filed a motion to set aside
the divorce decree based on fraud and improper service of process. 
     Appellant argues that appellee cannot use a þshotgun approachþ
in þconsentingþ to the divorce but not to the division of the
marital pension.  This argument is without merit.  Under the
doctrine of divisible divorce, appellant could have obtained a
dissolution of the marriage without appelleeþs consent.  þConsentþ
is defined as þa concurrence of wills.  Voluntarily yielding the
will to the proposition of another; acquiescence or compliance
therewith. Agreement; approval; permission . . . .þ  Blackþs Law
Dictionary 305 (6th ed. 1990).  We do not agree that appellee
acquiesced to the courtþs jurisdiction when he filed the motion to
set aside the divorce decree.  Appellant also contends that
appellee waived his objection to personal jurisdiction when he
appeared at the hearing on the motion to set aside the decree. 
Appellant only cites one case in support of this argument, Ingram
v. Wirt, 314 Ark. 553, 864 S.W.2d 237 (1993), in which þwaiverþ was
defined as:
Voluntary abandonment or surrender by a capable person of
a right known by him to exist, with the intent that he
shall forever be deprived of its benefits.  It may occur
when one, with full knowledge of material facts, does
something that is inconsistent with the right, or his
intention to rely upon that right. (Emphasis added.)

Id. at 563, 864 S.W.2d  at 243 (citation omitted).   Appelleeþs
actions in requesting a hearing on the motion were not inconsistent
with his position that there was improper service.  Moreover, where
appellant cited no convincing authority in support of her position
that appellee consented to the jurisdiction of the court, the trial
court will be affirmed on this issue.  Rogers v. Rogers, 46 Ark.
App. 136, 877 S.W.2d 936 (1994).
     It is clear that appellee was not a resident of Arkansas or
domiciled in Arkansas at any relevant time for the purpose of
subjecting his person to the jurisdiction of our courts. 
Therefore, none of the jurisdictional factors prescribed by the
federal statute (residence, domicile, or consent) have been
satisfied.  The chancellor's decision that he lacked personal
jurisdiction to divide appellee's military pension was not clearly
erroneous.
     Affirmed.
     Crabtree and Neal, JJ., agree.