Tompkins v. Tompkins

2020 Ark. App. 122

597 S.W.3d 99

Natalie TOMPKINS, Appellant

v.Lawrence TOMPKINS, Appellee

No. CV-19-219

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered February 19, 2020

Rehearing Denied March 18, 2020

Steve Westerfield, Hot Springs National Park, for appellant.

Ballard & Ballard, P.A., Little Rock, by: Andrew D. Ballard, for appellee.

N. MARK KLAPPENBACH, Judge

Appellant Natalie Tompkins and appellee Lawrence Tompkins were divorced by a November 2018 divorce decree. Natalie appeals, arguing that the circuit court erred (1) by not awarding her a portion of Lawrence’s military retirement benefits and (2) by refusing to consider an award of child support for their son in her custody. We affirm in part and reverse and remand in part.

Lawrence had been an active member of the military since January 1999. The parties married in October 2008, and their son, SGT, was born in 2010. The parties separated in 2015. In April 2018, Lawrence filed a complaint for divorce from Natalie; he was a permanent resident of Hot Springs, Arkansas. Natalie had been living in Germany with the parties’ son. Natalie answered the complaint, agreeing that she and their son lived in Germany, and she requested, in part, a division of marital assets and family support. In Natalie’s affidavit of financial means and in her answers to interrogatories, she listed her monthly income to include approximately $222 from a child-support-type benefit provided by the German government and $640 in child support paid by Lawrence. Natalie was also employed and earned approximately $32,000 per year.

The divorce hearing was conducted in November 2018. Lawrence was present with his attorney; Natalie’s attorney was present, but Natalie was not. The parties agreed that their child was a resident of Germany and that no custody or visitation issue was before the circuit court in this proceeding. Natalie’s attorney raised the issue of child support, though, stating that Lawrence had been paying child support, that the circuit court had jurisdiction over Lawrence, and that there needed to be a court order requiring him to continue paying child support. Lawrence’s attorney asserted that only Germany had jurisdiction of anything to do with the child, including visitation and support issues, citing the UCCJEA¹ and the Hague Convention.² The circuit court agreed with Lawrence’s attorney and ruled that "we're not taking up any issues today concerning the minor child."

Lawrence testified that he entered the military in January 1999, that he had a pension plan with the military governed by military regulations, and that Natalie will receive a portion of his military retirement benefits according to the military regulations. Lawrence told the circuit court that they had no property or debts for the court to divide but added that if Natalie wanted part of his retirement, he wanted the court to consider that Natalie had acquired real property in Germany during the marriage. At the conclusion of the hearing, Natalie’s attorney asserted that she had "military pension rights," but the circuit court replied that no evidence had been presented on which it could make a determination.

The November 2018 divorce decree recited in relevant part:

5. Based on the limited testimony the Court finds that there is [sic] no debts to adjudicate and each party shall be entitled to keep the property in their possession and name, and shall have full ownership, use, control, and financial responsibility for the same, free and clear of any claims of the other party, including any retirement, pension, and military retirement accounts.

6. The parties allege a minor child of the marriage, but stipulate the child is a multi-year resident of Germany and the Court makes no order as to the minor child due to lack of subject matter jurisdiction, and therefore Defendant’s request for child support is denied.

This appeal followed.

I. Military Retirement Benefits

Arkansas Code Annotated section 9-12-215(a)(1)(A) (Repl. 2015) requires that when a divorce decree is entered, all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable. We review division-of-marital-property cases de novo, but we will not reverse the circuit court’s findings of fact unless they are clearly erroneous or against the preponderance of the evidence. See Hernandez v. Hernandez , 371 Ark. 323, 265 S.W.3d 746 (2007). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been made. Perser v. Perser , 2019 Ark. App. 467, 588 S.W.3d 395.

Natalie argues that Lawrence himself testified that he had been an active military member since January 1999, that they married in October 2008, and that Natalie would receive a portion of his pension according to military regulations. She contends that this was sufficient evidence to support the existence and extent of the marital portion of Lawrence’s military pension and demonstrates that the circuit court clearly erred in failing to distribute it accordingly. Lawrence contends that Natalie failed to present evidence (1) to establish that Lawrence was vested at the time of divorce, (2) to establish what the pension’s value was and what type of pension it was, and (3) to prove what formula was proper to apply. Lawrence argues that given a lack of evidence, the court did not clearly err.

We hold that the circuit court did not clearly err in its findings on this issue. Military retirement pay is marital property that may be divided upon divorce, but it is divisible only if it is vested at the time of the divorce. Myers v. Ridgley , 2017 Ark. App. 411, 2017 WL 3724967. Military retirement that is not vested at the time of divorce is not subject to division. Id. If the divorcing military spouse has not served for a time sufficient to have earned the right to receive military retirement pay, the right has not "vested," and there is no asset to be divided upon divorce. Christopher v. Christopher , 316 Ark. 215, 871 S.W.2d 398 (1994) ; Burns v. Burns , 312 Ark. 61, 847 S.W.2d 23 (1993). Natalie fails to establish reversible error because she presented no evidence to support a finding that Lawrence was "vested" in his military retirement at the time of the divorce.

II. Child Support

Natalie argues that the circuit court was wrong to find that it lacked subject-matter jurisdiction to establish a child-support obligation on Lawrence for his minor son. Natalie agrees that the circuit court lacked jurisdiction over custody and visitation , but she asserts that jurisdiction over the child-support issue is separate and distinct. Lawrence responds that Natalie failed to ask to establish child support in her answer and therefore waived the issue; that the UCCJEA permitted the circuit court to refuse to exercise jurisdiction here; and that the Uniform Interstate Family Support Act (UIFSA) contained methods to establish permissible exercise of jurisdiction, but Natalie failed to establish any basis for subject-matter jurisdiction. We hold that the circuit court erred in deciding that it lacked subject-matter jurisdiction over the child-support issue.

It is apparent that everyone understood the custody and visitation issues to fall outside the purview of this proceeding, and this comports with the UCCJEA. On appeal, both parties appear to accept that the circuit court could exercise jurisdiction over the child-support issue under certain circumstances. It is worth explaining the differing principles when it comes to child custody versus child support.

Child-custody and child-support are matters governed by the Family Law portion of the Arkansas Code, which are provided in Title 9. Within Title 9, though, are two separate chapters relevant here: Chapter 19 controls child-custody matters under the UCCJEA ( Ark. Code Ann. §§ 9-19-101 et seq. ), whereas Chapter 17 controls child-support matters under UIFSA ( Ark. Code Ann. §§ 9-17-101 et seq. (Repl. 2015)). The issue presented here is a child-support matter under the UIFSA, not a custody matter under the...