Jurisdiction Over Military Retirement Benefits Before Justices

A majority of the three-judge Superior Court panel reversed a Butler County Common Pleas Court order finding that it did not have subject matter jurisdiction over Michael Wagner’s military pension.



One reason the majority gave for its decision was that the relevant provision of the act relates not to subject matter jurisdiction but to personal jurisdiction, an issue that was at the heart of each issue Michael’s ex-wife, Amy, brought on appeal.



Michael, an Alaska resident, was an active-duty U.S. Air Force officer throughout the duration of his marriage to Amy.



After the couple separated, Amy moved to Butler County, where she started the divorce action. An attorney filed an appearance on Michael’s behalf in Butler County but Michael failed to comply with Amy’s discovery requests. Michael’s attorney participated in several hearings regarding the noncompliance.



After Michael chose a different attorney to represent him, he served Amy with a notice of preliminary objections to Pennsylvania’s jurisdiction over equitable distribution of his military pension under the Uniformed Services Former Spouses’ Protection Act.



The trial court decided Michael had not consented to Pennsylvania’s jurisdiction and granted his objection.



But the Superior Court said the Butler County Court had no basis to deny jurisdiction.



The disparity in the opinions hinged on Section 1408(c)(4) of the act. That section provides that a state court has jurisdiction to treat military retirement money as marital property if the person receiving the pension is either a resident or domiciliary of the state or if he or she consents to the state’s jurisdiction.



Because it was uncontested that Michael did not live in Pennsylvania, the only question was whether he consented to the state’s jurisdiction. That section of the act had never been discussed before in a Pennsylvania divorce proceeding, Judge Joseph A. Hudock said for the Superior Court.



Courts in other states have considered the issue of whether Congress intended subsection 1408(c)(4) to relate to personal or subject matter jurisdiction, but they have not been in agreement.



Although the language of the act does not define what it means by “jurisdiction,” the Superior Court found helpful the fact that the other subsections contain tests of personal jurisdiction. Hudock said it was unlikely that Congress would intend an alternative basis of jurisdiction for the third provision of the act.

Consent Given

Amy argued Michael was barred from raising the jurisdiction issue just days before the bifurcation hearing, after the case had been progressing for more than two years.



But a waiver of the right to contest to jurisdiction is not enough to prove consent under the act; it had to be shown that Michael expressly or impliedly consented to the Butler County court’s jurisdiction, Hudock said.



Even so, the court did not accept Michael’s claim that he contested Pennsylvania’s personal jurisdiction from the start of the divorce proceedings, noting that he accepted notice of the divorce complaint, had an attorney enter an appearance on his behalf in Butler County and participated in hearings and conferences, either on his own or through his attorney.



The court concluded on the basis of his actions that Michael did consent to the jurisdiction.



“If [Michael] had wanted to object to Pennsylvania jurisdiction, he could have refused service of process, immediately filed a preliminary objection raising the question of personal jurisdiction or simply declined to participate in the divorce proceeding,” Hudock said.



In a dissenting opinion, Superior Court Judge Patrick Tamilia said the majority incorrectly concluded that subsection 1408(c)(4) presented a question of personal jurisdiction.



“Jurisdiction may not be acquired by means of acceptance of service by counsel or consent to the dissolution of the marriage,” Tamilia wrote.



Because neither Amy nor Michael lived in Pennsylvania while they were married and the state had no personal jurisdiction over Michael, a Pennsylvania court had no right to distribute Michael’s pension money, Tamilia said.

Petition