Pro se appellant creates interesting law on military retirement and jurisdictional challenges

Posted Thursday, May 26th, 2022 by Gregory Forman
Filed under Equitable Distribution/Property Division, Family Court Procedure, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The May 25, 2022, Court of Appeals opinion in the case of Williams v. Williams, 436 S.C. 550, 873 S.E.2d 785 (Ct.App. 2022), demonstrates the ability of a pro se litigant to effect significant changes to South Carolina family court procedure.  For years I’ve encouraged my colleagues to do appeals.  Mr. Williams demonstrates that even non-lawyers can do it.

The primary issue on appeal was whether the family court had personal jurisdiction to equitably divide Husband’s military retirement.  Husband was a North Carolina resident who had never resided in South Carolina.  However he was personally served with Wife’s complaint in South Carolina. That complaint sought a divorce, child custody and support, alimony, and equitable distribution of the parties’ assets and debts. As Husband was served in South Carolina, South Carolina would ordinarily acquire personal jurisdiction over Husband pursuant to South Carolina’s long-arm statute, S.C. Code Ann. § 36‑2‑803(A).

Along with the complaint, Wife sought temporary relief.  Prior to the motion for temporary relief, Husband filed a motion to dismiss Wife’s request for an equitable distribution of his military retirement, noting that pursuant to 10 U.S.C.A. § 1408(c)(4), the family court lacked personal jurisdiction to divide that retirement. That subsection grants a court power to divide military retirement benefits only if “the court has jurisdiction over the 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.”  Along with that motion to dismiss Husband filed an answer and counterclaim and litigated all remaining issues in South Carolina without objecting to personal jurisdiction.

The family court refused to continue Wife’s motion for temporary relief to first address Husband’s jurisdictional claim.  It further found Husband had consented to the jurisdiction of the court by filing an answer and counterclaim and litigating the remaining issues.  Thus the family court equitably divided Husband’s military retirement. He appealed.

One issue on appeal was whether the family court was required to address his jurisdictional challenge before addressing Wife’s motion for temporary relief.  The Court of Appeals held that, “[t]he family court should have first considered whether it had jurisdiction over the military retirement benefits. Accordingly, the family court erred in not first hearing Husband’s motion to dismiss for lack of jurisdiction.”

The issue of the family court granting temporary relief before determining jurisdiction arises in myriad cases–it’s arisen in three cases I’ve handled this year alone.  The family court almost always addresses the temporary relief issues without first resolving jurisdiction. No more. The days of the family court granting temporary relief before first determining it has jurisdiction are, THANKFULLY, over.

The Court of Appeals next found the family court improperly applied South Carolina’s long-arm statute to confer personal jurisdiction on the military retirement issue.[1] It noted that 10 U.S.C.A. § 1408 “places a strict limitation on the court’s exercise of jurisdiction to dispose of a member’s military retirement pay.”  Further as federal law, this section “preempts the application of the state statute, which would determine whether the member had ‘minimum contacts’ with the state sufficient to confer jurisdiction over his person.”  Essentially, that federal law overrides South Carolina’s long-arm statute when it comes to personal jurisdiction to divide military retirement.

The final issue on appeal was whether Husband “consented” to South Carolina exercising jurisdiction over him for the division of his military retirement benefits by filing an answer and counterclaim in this case and by participating in this litigation.  The Court of Appeals determined that because Husband challenged personal jurisdiction over this one issue at the time or prior to the filing of his answer and counterclaim and appearing at the temporary hearing, he did not.  It found that the intent of § 1408(c)(4)(C) was to allow a military member to specifically challenge personal jurisdiction over military pensions. Therefore consent to personal jurisdiction over other issues did not create consent to personal jurisdiction on this issue.

The Court of Appeals recognized the tension between Rule 4(d), SCRCP and Rule 12(b), SCRCP.  Rule 12(b) authorizes a defendant to file a challenge to jurisdiction prior to filing an answer or as an affirmative defense to an answer.  Rule 4(d) states in part that “[v]oluntary appearance by defendant is equivalent to personal service.” The Court of Appeals noted, “[i]t is clear from Rule 12(b) that a party should be able to raise an objection to personal jurisdiction without simultaneously waiving it under Rule 4(d).” In finding Husband did not consent to personal jurisdiction over his military retirement, the Court of Appeals further noted:

Husband objected to the court’s jurisdiction over the retirement benefits at his earliest opportunity and before he took any further action, such as filing his answer and counterclaim. He reasserted his objection at every stage of the proceeding, including in his answer and counterclaim. Therefore, we find he did not explicitly consent to have his military retirements benefits decided in South Carolina.

Based on this holding, the Court of Appeals reversed the family court’s equitable distribution of Husband’s military retirement benefits.

Williams establishes a number of important procedural points in South Carolina family law.  First, if a challenge is made to jurisdiction, the family court must establish it before granting temporary relief. Second, filing a motion or responsive pleading pursuant to Rule 12(b), SCRCP, and then participating in the proceeding, does not waive these jurisdictional challenges. Finally, the United States code section regarding personal jurisdiction for dividing military retirement overrides South Carolina’s long-arm statute.  Very impressive results for a pro se litigant.

[1] In a subsequent footnote, the opinion states that the family court based its finding of jurisdiction on Husband’s consent rather than on South Carolina’s long-arm statute. That does not alter this blog’s analysis of the court’s explanation of the interplay between that long-arm statute and the federal code section.

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