Broadbent v. Broadbent

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

451 P.3d 930 (2019)

Updated July 31, 2026

tortsdivorcemilitary retirementchild custodyjurisdictionUSFSPA10 U.S.C. § 1408military retirement division

Facts

Husband filed the divorce action in Comanche County, requested sole custody of the parties' two children, and asked the court to equitably divide the parties' real and personal property. More than a year later, in an amended petition, he challenged the court's jurisdiction under the USFSPA to divide his U.S. Army retirement, asserting he was in Oklahoma only because of military assignment and was neither a resident nor domiciliary of Oklahoma. Wife argued Husband had invoked the court's jurisdiction by filing the action and seeking affirmative relief. At trial, Husband requested joint custody, but the evidence showed Wife had been the children's primary caregiver and that the parties' relationship was marked by hostility and an inability to cooperate.

Issue

Whether the Oklahoma court had jurisdiction under 10 U.S.C. § 1408(c)(4)(C) to divide Husband's military retirement when he filed the divorce action and delayed objecting to jurisdiction, and whether the trial court abused its discretion by awarding Wife custody rather than joint custody.

Rule

A state court may divide a service member's military retirement under the USFSPA only if it has personal jurisdiction under 10 U.S.C. § 1408(c)(4), including jurisdiction by the member's consent under subsection (C). Consent may be found where the service member voluntarily invokes the court's jurisdiction by initiating the dissolution proceeding and fails to timely contest jurisdiction. In custody matters, the controlling standard is the best interests of the child, and joint custody is not proper where the parents are too hostile and uncooperative to communicate, put aside differences, and make joint decisions for their children.

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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 El Paso, filed for divorce in an Oklahoma district court after living on a military post there for seven months. In his petition, he asked the court to dissolve the marriage, award him certain household property, and equitably divide all marital assets. Fourteen months later, after pretrial proceedings, he first argued the court could not divide his military retired pay because he was in Oklahoma only due to military orders and intended to return to North Carolina.

Under the majority rule applied by the court, may the Oklahoma court divide Ethan's military retired pay?

Explanation. The majority held that under 10 U.S.C. § 1408(c)(4)(C), consent can be found where the service member voluntarily initiates the dissolution proceeding and does not timely object to the court's authority to divide military retirement. The opinion specifically relied on filing the divorce action, requesting equitable division of property, and waiting over a year to object. Residence solely due to assignment does not itself satisfy § 1408(c)(4)(A), but it does not prevent jurisdiction if consent exists.