Broadbent v. Broadbent

Oklahoma Court of Civil Appeals, Division II · 2019 · Torts

Tortsdivorcemilitary retirement jurisdictionchild custodyUSFSPA10 U.S.C. § 1408military retirementpersonal jurisdiction

Facts

The parties married in 2006 and had two children. Husband filed for divorce in Oklahoma, requested sole custody, and asked the court to equitably divide the parties' real and personal property; the court later entered a temporary joint-custody order. More than a year after filing, Husband amended his petition to argue Oklahoma lacked jurisdiction under the USFSPA to divide his U.S. Army retirement because he was in Oklahoma only due to military assignment and was neither a resident nor domiciliary. At trial, Husband sought joint custody, but evidence showed Wife had been the primary caregiver, the parents were highly hostile toward each other, and Husband intended to continue retaliatory and inappropriate conduct toward Wife.

Issue

Whether the Oklahoma court had personal jurisdiction under 10 U.S.C. § 1408(c)(4)(C) to divide Husband's military retirement when Husband filed the divorce action and did not object to jurisdiction over retirement benefits for more than a year. Whether the trial court abused its discretion by awarding Wife custody rather than joint custody.

Rule

Under the USFSPA, a court may treat disposable retired pay as marital property only if it has jurisdiction over the service member by residence other than because of military assignment, domicile, or consent. Consent under § 1408(c)(4)(C) is established where the service member voluntarily invokes the court's jurisdiction by filing the dissolution proceeding and fails to timely contest jurisdiction. In custody matters, the controlling standard is the child's best interests, and joint custody is not proper where parental hostility and uncooperative behavior show the parents cannot function in a joint custody relationship.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Ethan Mercer, an Army officer stationed near Lawton, Oklahoma, filed for divorce in Comanche County and asked the court to divide all marital property. Sixteen months later, after temporary orders and discovery, he first argued the court could not divide his military retirement because he lived in Oklahoma only due to military assignment and intended to retire in North Carolina.

Under the majority rule, is the Oklahoma court most likely authorized to divide Ethan's military retirement?

Explanation. The majority held that when a service member files the dissolution action, seeks affirmative relief including property division, and then fails to timely object to jurisdiction over military retirement, the member consents under 10 U.S.C. § 1408(c)(4)(C). The opinion rejected the need for residence or domicile where consent is shown and treated a delay of over a year as sufficient to establish consent. (Derived from Broadbent v. Broadbent (n.d.).)