In re Robinson

33 N.E.3d 260

In re MARRIAGE OF Maleta ROBINSON, f/k/a Maleta Marrionneaux–Willis, Petitioner–Appellee and DeAngelo M. WILLIS, Respondent–Appellant.

No. 1–13–2345.

Appellate Court of Illinois, First District, Fourth Division.

May 14, 2015.

Sharon M. Kadas, of Chicago, for appellant.

No brief filed for appellee.

OPINION

Justice ELLIS delivered the judgment of the court, with opinion.

¶ 1 In this appeal, we are called upon to address the applicability of the Federal Uniformed Services Former Spouses' Protection Act (FUSFSPA) (10 U.S.C. § 1408 (2006) ) to the modification of an out-of-state divorce judgment dividing a former military member's pension. Petitioner Maleta Robinson (Maleta) and respondent DeAngelo M. Willis (DeAngelo), a former member of the United States Marine Corps, divorced in Michigan in 2009. As part of the consent judgment entered by the Michigan court, Maleta received 25% of DeAngelo's military pension. Maleta then moved to Illinois and sought to register the Michigan judgment in Cook County. After DeAngelo did not appear in Cook County, the circuit court registered the Michigan order and entered an order dividing DeAngelo's military retirement pay. DeAngelo filed a motion to vacate that order, alleging that the Illinois circuit court lacked personal jurisdiction over him. The circuit court denied DeAngelo's motion and entered another order dividing DeAngelo's pension.

¶ 2 DeAngelo appeals, asserting that the Illinois circuit court lacked personal jurisdiction to divide his pension under FUSFSPA, which empowers state courts to divide military retirement pay in divorce proceedings. We agree that FUSFSPA applied to the circuit court's actions in this case and that the trial court erred in determining that DeAngelo consented to personal jurisdiction. We vacate the trial court's order dividing DeAngelo's military pension and remand for an evidentiary hearing to determine whether DeAngelo was a resident or domiciliary of Illinois under FUSFSPA.

¶ 3 I. BACKGROUND

¶ 4 Maleta and DeAngelo married in 1990 and had three children. They resided together in Macomb, Michigan, during their marriage. DeAngelo filed for divorce in 2007 in Michigan.

¶ 5 On January 21, 2009, the circuit court of Macomb County, Michigan, entered a consent judgment of divorce. As part of that judgment, the Michigan court awarded Maleta 25% “of the marital portion of [DeAngelo's] military pension and retirement benefits.” (Emphasis in original.) The court defined “[t]he marital portion * * * as the portion of benefits accumulated from the date of the marriage until the entry of this Judgment.”

¶ 6 After the judgment was entered, Maleta moved to Chicago with their two younger children, while DeAngelo moved to Virginia with their oldest child. On June 1, 2010, DeAngelo retired from active duty and began to collect his military pension. In the same month, DeAngelo moved to Georgia.

¶ 7 On November 7, 2011, Maleta filed a petition to register the Michigan judgment in the circuit court of Cook County. Maleta asserted that neither she nor DeAngelo resided in Michigan and asked that the Michigan judgment be registered in Illinois “for the purposes of enforcement.” Maleta served DeAngelo with the petition.

¶ 8 On September 25, 2012, while her request to register the Michigan judgment was still pending, Maleta moved for a rule to show cause and sanctions, alleging that DeAngelo failed to comply with the Michigan court's order regarding his military pension. Maleta stated that DeAngelo had refused to pay her the 25% share of his pension as required by the Michigan divorce judgment. Maleta asked that the Illinois circuit court require DeAngelo to pay her the “25% share of all his monthly pension benefits” and 9% interest.

¶ 9 Although he had been served, DeAngelo did not appear to contest the registration of the Michigan judgment or file a responsive pleading to Maleta's motion. Accordingly, on October 2, 2012, the court granted Maleta's request to register the Michigan judgment.

¶ 10 On November 21, 2012, the court enjoined the United States Defense Finance and Accounting Service (USDFAS) from providing DeAngelo with his pension benefits “until further order of the Court.” The court also enjoined DeAngelo “from transferring, encumbering, or receiving any lump sum payments or otherwise modifying his pension benefits from [US]DFAS without leave of this Court.” The court ordered USDFAS to send “all of [DeAngelo's] future pension benefit payments” to Maleta's attorney, payable to DeAngelo, “until further order of [the] Court.”

¶ 11 On March 1, 2013, the court entered an order entitled, “Military Retired Pay Division Order.” The order stated that it was being “entered incident to” the Michigan divorce judgment. The order also stated that the court had jurisdiction over DeAngelo “by reason of his domicile in the territorial jurisdiction of the Court during the divorce proceedings.” The court found that Maleta was entitled “to a portion of Respondent's United States military retired pay,” and awarded Maleta “25 percent of [DeAngelo's] disposable military retired pay.”

¶ 12 On March 29, 2013, DeAngelo filed a motion pursuant to section 2–1301 of the Code of Civil Procedure (735 ILCS 5/2–1301 (West 2010) ) seeking to vacate the circuit court's March 1, 2013 order. DeAngelo asserted that the circuit court of Cook County lacked personal jurisdiction over him under FUSFSPA because he did not reside in Illinois or maintain a domicile in Illinois. DeAngelo acknowledged that he purchased and registered a car in Illinois but asserted that he bought the car solely for his daughter to use while she attended college in Illinois.

¶ 13 In her response to DeAngelo's motion, Maleta asserted that the Illinois court was required to afford the Michigan divorce judgment full faith and credit. Maleta stated that the March 1, 2013 order “served only to implement the Michigan Judgment as it related to its award of 25% of [DeAngelo's] military pension to [Maleta].” Maleta also asserted that DeAngelo had sufficient contact with Illinois to justify the Illinois circuit court's exercise of jurisdiction. Maleta noted that DeAngelo listed his address as “5824 North Ridge, Chicago, Illinois” to USDFAS, had registered a vehicle with the Illinois Secretary of State at the same address, and had an adult child and a minor child residing in Illinois. Maleta attached copies of DeAngelo's retiree account statement from USDFAS from June 2010 and his 2013 Illinois vehicle registration card, each of which listed his address as “5824 N Ridge, Chicago, IL 60660.” Maleta also argued that the circuit court had personal jurisdiction over DeAngelo under section 2–209(a)(9) of the Code of Civil Procedure (735 ILCS 5/2–209(a)(9) (West 2010)) because DeAngelo “fail[ed] to support a * * * former spouse who ha[d] continued to reside” in Illinois.

¶ 14 In his reply, DeAngelo argued that section 2–209(a)(9) was inapplicable, because the award of 25% of his pension was not “spousal support” but, rather, a division of property. DeAngelo also stated that the Chicago address he listed with USDFAS and the Illinois Secretary of State was a temporary address he used while he was moving from Virginia to Georgia in 2010.

¶ 15 On June 21, 2013, the circuit court denied DeAngelo's motion to vacate. The court found that DeAngelo “ha[d] ‘minimum contacts' with the State of Illinois sufficient that this court has personal jurisdiction over [him]” and that DeAngelo “waived any objection to lack of personal jurisdiction by raising a substantive issue in this matter (whether [Maleta was] entitled to 25% or 20% of [the] marital portion of [the] pension).” On the same day, the trial court also entered another order entitled, “Military Retired Pay Division Order,” which was identical to the March 1, 2013 order of the same name except in one respect: it “awarded [Maleta] 20 percent of [DeAngelo's] disposable military retired pay,” instead of 25%. Defendant appeals, arguing that the trial court should have declined jurisdiction over this matter due to lack of personal jurisdiction.

¶ 16 II. ANALYSIS

¶ 17 Maleta has failed to file a response brief in this case. But we will not summarily reverse the circuit court's judgment. Rather, we elect to address the merits of DeAngelo's appeal because the record is simple, and we can resolve the issue presented to us without Maleta's brief. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133, 345 N.E.2d 493 (1976).

¶ 18 The trial court below found two bases for jurisdiction over this matter. First, the court ruled that DeAngelo had “ ‘minimum contacts' ” with Illinois. Second, the trial court found that DeAngelo waived any objection to personal jurisdiction by raising a substantive argument concerning the court's order. Both issues require us first to determine whether federal law—namely FUSFSPA—controls the jurisdictional question, or whether our state's long-arm personal-jurisdiction statute applies.

¶ 19 A. Whether FUSFSPA Applies to This Case

¶ 20 Whether FUSFSPA is applicable to this action is a question of law we review de novo. Performance Marketing Ass'n v. Hamer, 2013 IL 114496, ¶ 12, 375 Ill.Dec. 762, 998 N.E.2d 54. In determining the reach of a federal statute, we begin with its plain language. Mansell v. Mansell, 490 U.S. 581, 588, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989).

¶ 21 Congress passed FUSFSPA in response to the United States Supreme Court's decision in McCarty v. McCarty, 453 U.S. 210, 232–33, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), which held that, under the supremacy clause, a state court could not divide a military retiree's retirement pay in a divorce. Abrogating the holding of McCarty, FUSFSPA grants state courts the authority to “treat disposable retired pay payable to a [military] member * * * 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...