                                                                            May 07 2015, 10:02 am




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Nathaniel Lee                                             Mark Small
Lee & Fairman, LLP                                        Indianapolis, Indiana
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In Re the Marriage of:                                    May 7, 2015
                                                          Court of Appeals Case No.
Teasha J. Harris,                                         49A04-1501-DR-14
Appellant-Respondent,                                     Appeal from the Marion Superior
                                                          Court.
        v.                                                The Honorable Patrick L. McCarty,
                                                          Judge.
                                                          Cause No. 49D03-0809-DR-41630
Anthony J. Harris,
Appellee-Petitioner




Baker, Judge.




Court of Appeals of Indiana | Opinion 49A04-1501-DR-14 | May 7, 2015                      Page 1 of 13
[1]   Teasha Harris (Wife) appeals the trial court’s denial of her motion to correct

      error. She argues that the trial court erred in determining that it lacked personal

      jurisdiction over Anthony Harris (Husband) as to the division of certain marital

      assets. She also argues that the trial court erred in determining that Husband’s

      military pension was not a marital asset. Finding that Husband had consented

      to the trial court’s jurisdiction over him in regard to all matters necessary to the

      disposition of this cause, we reverse the portions of the trial court’s judgment

      that were affected by this determination. However, we affirm the trial court’s

      judgment that Husband’s military pension was not a marital asset.

      Accordingly, we remand to the trial court for further proceedings consistent

      with this opinion.


                                                      Facts
[2]   Husband and Wife were married in 1995 in Watertown, New York. They have

      one daughter (Daughter), born in 1996. In 2005, Wife separated from Husband

      and moved to Indiana. In 2008, Wife filed a petition for dissolution of marriage

      in Marion County, seeking primary custody of Daughter and a distribution of

      the marital property. At that time, Husband was a resident of North Carolina,

      and, as a member of our armed forces, was stationed in Germany.


[3]   Pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), 1 the trial

      court ordered a phone call to discuss jurisdictional issues with the appropriate




      1
          Ind. Code art. 31-21.


      Court of Appeals of Indiana | Opinion 49A04-1501-DR-14 | May 7, 2015       Page 2 of 13
      trial court in North Carolina. The North Carolina court agreed that all matters

      regarding Daughter, including the petition for dissolution of marriage, would be

      heard by the trial court in Marion County.


[4]   The trial court then held a hearing on Wife’s petition on February 2, 2009.

      Wife was present at this hearing but Husband did not appear. Following the

      hearing, the trial court issued a decree for dissolution of the marriage, awarded

      custody of Daughter to Wife, ordered Husband to pay $239 per week in child

      support and $500 per month in spousal allowance, ordered Husband to pay the

      balance owed on the parties’ vehicle and transfer title of the vehicle to Wife,

      and awarded thirty-two percent of Husband’s military pension to Wife.


[5]   On March 2, 2009, Husband filed a motion to correct error, arguing that the

      trial court lacked personal jurisdiction over him. The trial court denied this

      motion and Husband appealed. On appeal, this Court held that the trial court

      did not err in dissolving the marriage, as changing the parties’ status from

      married to unmarried takes the form of an in rem proceeding, in which “the trial

      court may, upon ex parte request of a resident party, dissolve a marriage without

      obtaining personal jurisdiction over the other party.” Harris v. Harris, 922

      N.E.2d 626, 634 (Ind. Ct. App. 2010).


[6]   However, observing that “[i]n order for a trial court to have jurisdiction over

      marital property, the court must have in personam jurisdiction over both

      parties,” this Court held that the trial court’s judgments as to child support,

      spousal allowance, military retirement pay, and all other incidences of marriage


      Court of Appeals of Indiana | Opinion 49A04-1501-DR-14 | May 7, 2015      Page 3 of 13
      were void for lack of personal jurisdiction. Id. at 635-38. This Court also

      reversed the trial court’s judgment as to child custody for failure to comply with

      the Servicemembers Civil Relief Act (SCRA)2 and the UCCJA. Id. at 638-40.


[7]   Following this Court’s decision, on July 19, 2011, Husband and Wife filed an

      agreed entry for modified decree of dissolution in the Marion County trial

      court. Husband and Wife agreed that Wife would have primary custody of

      Daughter, Husband would pay Wife $196 in weekly child support, Husband

      and Wife would share the expense of Daughter’s post-secondary education, and

      Husband would maintain Daughter’s health insurance. The trial court

      approved this agreement the same day.


[8]   Also on July 19, 2011, Wife filed a verified petition for equitable division of

      marital assets and spousal maintenance. In her petition, Wife noted that “she is

      physically incapacitated to the extent that her ability to support herself is

      materially affected.” Appellant’s App. p. 88. In her petition, Wife

      acknowledged this Court’s ruling setting aside the trial court’s previous order as

      to distribution of marital property because of a lack of personal jurisdiction over

      Husband. However, Wife noted that “[t]he parties executed an Agreed Entry in

      which [Husband] submitted to the jurisdiction of Indiana with regards to the issues

      of support and parenting time.” Id. at 87 (emphasis added). There is no evidence

      in the record indicating that the trial court ever ruled on this petition.




      2
          50 App. U.S.C. §§ 501-596.


      Court of Appeals of Indiana | Opinion 49A04-1501-DR-14 | May 7, 2015         Page 4 of 13
[9]    On April 13, 2012, Husband filed an emergency petition for telephone

       conference with counsel. Husband alleged that he was to be deployed to

       Afghanistan in early May 2012, that he wished to visit Daughter before he was

       deployed, and that he had tried to contact Wife numerous times to make

       arrangements to come to Indianapolis to visit Daughter but that Wife had

       refused to take his calls. On June 14, 2013, Husband filed an emergency

       petition for hearing and petition for contempt. Wife filed her own petition for

       contempt for non-payment of child support on July 24, 2013. The trial court set

       a hearing to resolve all pending motions.


[10]   On July 11, 2014, following several continuances, the trial court held this

       hearing. On August 26, 2014, the trial court issued an order, finding that

       Husband’s child support obligation of $196 per week to Wife terminated on

       August 21, 2014. The trial court also denied Wife’s request to include

       Husband’s military pension as a marital asset and distribute a portion of it to

       Wife. In the order, the trial court noted that “the Indiana Court of Appeals on

       February 7, 2010 found that the Trial Court did not have ‘in personam

       jurisdiction’ over [Husband], but that [Husband] subsequently accepted ‘in personam

       jurisdiction’ regarding custody, support, etc. regarding [Daughter].” Id. at 104

       (emphasis added). The trial court concluded that “[a]ll other terms and

       conditions of the Dissolution of Marriage Decree, as amended, shall remain in

       full force and effect.” Id. at 108.


[11]   On September 18, 2014, Wife filed a motion to correct error in which she noted

       that the trial court’s order “fail[ed] to make any determination with regard to

       Court of Appeals of Indiana | Opinion 49A04-1501-DR-14 | May 7, 2015           Page 5 of 13
       spousal allowance, payment for or transfer of title in the vehicle.” Id. at 66.

       Wife also argued that Husband had submitted to the jurisdiction of the trial

       court for all purposes, not simply for the “limited purpose of the parties’ child.”

       Id. at 65-66. Wife asked the trial court to “cure the error, including setting aside

       the Court’s August 26, 2014 Order with regard to spousal allowance, payment

       for and transfer of title in the vehicle, reinstatement of spousal maintenance,

       award a pro rata share of pension/military retirement . . . and for all other just

       and proper relief . . . .” Id. at 68. Following a hearing, the trial court denied

       Wife’s motion on December 17, 2014. Wife now appeals.


                                     Discussion and Decision
[12]   We review a trial court’s ruling on a motion to correct error for an abuse of

       discretion. Wortkoetter v. Wortkoetter, 971 N.E.2d 685, 687 (Ind. Ct. App. 2012).

       An abuse of discretion occurs when the trial court’s decision is clearly against

       the logic and effect of the facts and the circumstances before it or if the court

       misinterprets the law. Id.


[13]   In her motion to correct error, Wife alleged that the trial court erred in

       determining that it lacked personal jurisdiction over Husband regarding issues

       unrelated to Daughter’s custody or child support. Wife also alleged that the

       trial court erred in determining that Husband’s military pension had not

       become part of the marital property because Husband had not acquired a vested

       interest in it prior to the dissolution of the marriage.




       Court of Appeals of Indiana | Opinion 49A04-1501-DR-14 | May 7, 2015         Page 6 of 13
                                      I. Personal Jurisdiction
[14]   In its order on Wife’s motion to correct error, the trial court found that:

               As to [Wife’s] claim that she should be entitled to spousal
               maintenance, title to a vehicle, attorney’s fees, etc., such an Order
               would have required this Court to be able to assert “in personam”
               jurisdiction over [Husband], and that issue has already been made “res
               judicata” by the Indiana Court of Appeals.

       Appellant’s App. p. 115. The trial court further noted that although Husband

       agreed “to allow the Court to issue an order regarding [Daughter’s]

       custody/support,” he had not waived personal jurisdiction as to other issues.

       Id. We find two errors in the trial court’s analysis.


[15]   First, this Court’s 2010 decision did not render the issue of the trial court’s

       jurisdiction over Husband res judicata. Indiana Trial Rule 4.4 provides that “a

       court of this state may exercise jurisdiction on any basis not inconsistent with

       the Constitutions of this state or the United States.” Due process requires that a

       court’s exercise of jurisdiction over an individual “not offend traditional notions

       of fair play and substantial justice.” Int’l Shoe Co. v. State of Wash., Office of

       Unemployment Compensation & Placement, 326 U.S. 310, 316 (1945).

       Accordingly, before exercising jurisdiction over an individual, courts must

       determine that the individual’s “conduct and connection with the forum State

       are such that he should reasonably anticipate being haled into court there.”

       World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). In 2010,

       this Court held that Husband’s contacts with Indiana were insufficient to allow

       our courts to exercise jurisdiction over him. Harris, 922 N.E.2d at 637.

       Court of Appeals of Indiana | Opinion 49A04-1501-DR-14 | May 7, 2015           Page 7 of 13
       However, Husband was not prevented from subsequently establishing sufficient

       contact with the state.


[16]   It has long been observed that a court may acquire personal jurisdiction over a

       party through that party’s consent. Brady v. Richardson, 18 Ind. 1, 2 (1862). As

       this Court noted in the prior appeal, “[a] defendant can waive lack of personal

       jurisdiction and submit himself to the jurisdiction of the court if he responds or

       appears and does not contest the lack of jurisdiction.” Harris, 922 N.E.2d at

       632. Additionally, “a party shall be estopped from challenging the trial court’s

       jurisdiction where the party has voluntarily availed itself or sought the benefits

       of the court’s jurisdiction.” Maust v. Estate of Bair, 859 N.E.2d 779, 783 (Ind. Ct.

       App. 2007).


[17]   On July 19, 2011, Husband asked the trial court to approve an agreed entry for

       decree of dissolution. Appellant’s App. p. 45. In so doing, Husband availed

       himself of the benefits of the trial court’s jurisdiction and thereby consented to

       the court’s exercise of jurisdiction over him. At that point, this Court’s decision

       as to the trial court’s jurisdiction as it existed in 2010 no longer applied.


[18]   Second, the trial court incorrectly determined that Husband had submitted to

       the court’s jurisdiction only as to specific matters. “Personal jurisdiction” refers

       to “[a] court’s power to bring a person into its adjudicative process.” Black’s

       Law Dictionary (10th ed. 2014). When an individual consents to a court’s

       exercise of jurisdiction over him in a particular cause, it follows that the court is

       authorized to adjudicate all issues necessary to dispose of that cause properly.


       Court of Appeals of Indiana | Opinion 49A04-1501-DR-14 | May 7, 2015        Page 8 of 13
[19]   Indiana Code section 31-15-7-4 provides that “[i]n an action for dissolution of

       marriage . . . , the court shall divide the property of the parties.” (Emphasis

       added). “This court has many times stated that in divorce cases the trial court

       has not only the power, but the statutory duty to adjust and adjudicate the

       property rights of the parties involved.” Plese v. Plese, 146 Ind. App. 545, 553,

       257 N.E.2d 318, 323 (1970). Accordingly, a party who consents to a trial

       court’s jurisdiction over the dissolution of his marriage necessarily authorizes

       that court to adjudicate his property rights.


[20]   The trial court also noted that Wife may have waived the issues of spousal

       maintenance and title to the vehicle:

               In addition, if [Wife] thought that by [Husband] agreeing to allow the
               Court to issue an order regarding [Daughter’s] custody/support
               somehow acted as [Husband] waiving “in personam” jurisdiction,
               since that agreement was approved on July 19, 2011, [Wife] would
               have had to initiate an action immediately to assert that claim, not
               wait over three (3) years to make a claim.
               In addition, there was no evidence even presented by [Wife] at the July
               11, 2014, [hearing] regarding this issue, only evidence in attempting to
               support her claim that [Husband’s] military pension was a “marital
               asset.”

       Appellant’s App. p. 115-16. However, we believe it would be unjust to hold

       that Wife has waived these issues. Wife petitioned the trial court for equitable

       division of property and spousal maintenance on July 19, 2011—the same day

       she and Husband entered their agreement regarding child custody and support.

       Id. at 85. There is no evidence in the record that the trial court ever ruled on

       this petition—perhaps because the trial court believed it lacked personal

       Court of Appeals of Indiana | Opinion 49A04-1501-DR-14 | May 7, 2015             Page 9 of 13
       jurisdiction over Husband as to these issues. Given these circumstances, we

       hold that on remand, Wife may again petition the trial court for equitable

       division of marital assets and spousal maintenance.


                                         II. Military Pension
[21]   The trial court held that, concerns over personal jurisdiction notwithstanding,

       Husband’s “Military Pension does not meet the definition of a ‘marital asset’

       that would be subject to distribution by the Court and which could be included

       in the ‘marital pot.’” Id. at 105. The trial court reasoned that this was so

       because Husband’s rights in this pension did not vest until almost three years

       after the marriage was dissolved. Id. at 106.


[22]   Indiana Code section 31-9-2-98 defines “property” for purposes of dissolution

       of marriage and provides:

               (b)      “Property”, for purposes of IC 31-15, IC 31-16, and IC 31-17,
                        means all the assets of either party or both parties, including:
                        (1)      a present right to withdraw pension or retirement
                                 benefits;
                        (2)      the right to receive pension or retirement benefits that
                                 are not forfeited upon termination of employment or
                                 that are vested (as defined in Section 411 of the Internal
                                 Revenue Code) but that are payable after the dissolution
                                 of marriage; and
                        (3)      the right to receive disposable retired or retainer pay (as
                                 defined in 10 U.S.C. 1408(a)) acquired during the
                                 marriage that is or may be payable after the dissolution
                                 of marriage.




       Court of Appeals of Indiana | Opinion 49A04-1501-DR-14 | May 7, 2015                Page 10 of 13
       The trial court found that Husband’s “‘right to receive disposable retired or

       retainer pay’ did not commence and he did not become eligible until November

       19, 2011, when he completed twenty years of military service.” Appellant’s

       App. p. 105. Wife does not contest this finding.


[23]   “It is well established that for a pension to be included in the marital pot, the

       pension must be vested.” Dowden v. Allman, 696 N.E.2d 456, 458 (Ind. Ct.

       App. 1998). While Wife does not directly argue otherwise, she appears to

       maintain that she nevertheless became eligible to receive a portion of Husband’s

       pension after ten years of marriage. Wife cites to federal law regarding the

       payment of military pensions to former spouses, which provides:

               [A] court may treat disposable retired pay payable to a member for pay
               periods beginning after June 25, 1981, either as property solely of the
               member or as property of the member and his spouse in accordance
               with the law of the jurisdiction of such court.

       10 U.S.C. § 1408(c)(1) (emphasis added). This section also limits a court’s

       ability to order the secretary of the applicable branch of the military to send

       payments to a retired servicemember’s spouse:

               If the spouse or former spouse to whom payments are to be made
               under this section was not married to the member for a period of 10
               years or more during which the member performed at least 10 years of
               service creditable in determining the member's eligibility for retired
               pay, payments may not be made under this section to the extent that
               they include an amount resulting from the treatment by the court
               under subsection (c) of disposable retired pay of the member as
               property of the member or property of the member and his spouse.

       10 U.S.C. § 1408(d)(2).

       Court of Appeals of Indiana | Opinion 49A04-1501-DR-14 | May 7, 2015         Page 11 of 13
[24]   Wife is simply misreading this statute. As the trial court noted, section 1408

       merely requires that parties be married “for at least ten (10) years, during which

       ten (10) years of credible service was obtained, before a Dissolution of Marriage

       Court has the right to Order the governmental agency (i.e. the branch of

       military) to directly send retirement benefits to the spouse.” Appellant’s App.

       p. 115. The trial court correctly concluded that section 1408 “does not in any

       manner state that after ten (10) years a military benefit is ‘vested,’ if the party

       has not reached retirement age (i.e. twenty (20) years of credible service).” Id.

       Consequently, Wife’s argument fails.


[25]   Wife next cites two Indiana cases in which courts have awarded portions of

       military pensions to former spouses. In re Marriage of Adams, 535 N.E.2d 124

       (Ind. 1989); In re Marriage of Bickel, 538 N.E.2d 246 (Ind. Ct. App. 1989).

       However, in both of these cases, the right to receive pension benefits had vested

       prior to the dissolution of marriage. Adams, 535 N.E.2d at 125; Bickel, 538

       N.E.2d at 247. Wife attempts to cure this dilemma by spontaneously asserting

       at the end of her argument that “in the matter at issue, the original [dissolution]

       decree of February 2, 2009 was overruled and the final decree was not entered

       until August 26, 2014 at which time the pension had long vested.” Appellant’s

       Br. p. 20.


[26]   However, this Court’s previous opinion in this case clearly upheld the trial

       court’s February 2, 2009, dissolution decree as it related to changing the party’s

       status from married to unmarried. Harris, 922 N.E.2d at 634-35. Consequently,



       Court of Appeals of Indiana | Opinion 49A04-1501-DR-14 | May 7, 2015        Page 12 of 13
       the marriage was dissolved on February 2, 2009. Wife provides no explanation

       as to how the trial court’s August 26, 2014, order could have changed this.3


[27]   The judgment of the trial court as to Husband’s child support obligation and

       military pension is affirmed. The judgment of the trial court as to its

       jurisdiction over Husband is reversed and remanded. On remand, Wife may

       petition for an equitable division of marital assets and spousal maintenance.


       Najam, J., and Friedlander, J., concur.




       3
         In her motion to correct error, Wife also argued that the trial court had incorrectly calculated the amount of
       child support due as $196 per week, asserting that Husband and Wife had agreed to the greater amount of
       $287 per week. Appellant’s App. p. 63. This contention was based on an “amended” agreed entry, which
       appears in Wife’s Appendix. Id. at 48. A review of the document shows that it is identical to the initial
       agreed entry except that the amount of support has been changed, the word “amended” has been handwritten
       into the title, and a photocopy of the signature page from the original agreed entry has been attached to the
       end. Id. The trial court could not make heads or tails of this, and Wife provides no explanation on appeal.
       As such, we affirm the trial court’s determination that Husband’s child support obligation was $196 per week
       and that it terminated on August 21, 2014. Id. at 106-07.

       Court of Appeals of Indiana | Opinion 49A04-1501-DR-14 | May 7, 2015                              Page 13 of 13
