Bullis v. Bullis

464 S.E.2d 538, 21 Va. App. 394, 1995 Va. App. LEXIS 910
CourtCourt of Appeals of Virginia
DecidedDecember 19, 1995
DocketRecord No. 2265-94-4
StatusPublished

This text of 464 S.E.2d 538 (Bullis v. Bullis) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bullis v. Bullis, 464 S.E.2d 538, 21 Va. App. 394, 1995 Va. App. LEXIS 910 (Va. Ct. App. 1995).

Opinion

BENTON, Judge.

This appeal arises from a circuit court judgment entered in an action brought pursuant to the Uniform Enforcement of Foreign Judgments Act. Code §§ 8.01-465.1 to 8.01-465.5. The appellant, Daniel Joseph Bullís, contends that the trial judge erred in converting to a Virginia judgment an Arizona judgment that awarded his former wife, Regina Bullís, a portion of his military retirement pay. For the reasons that follow, we affirm the circuit court’s judgment.

I.

The appellee, a resident of Arizona, commenced this action in 1994 in the Circuit Court of Fairfax County, Virginia, against appellant, a resident of Virginia, to obtain a Virginia judgment based upon a judgment she obtained in the Superior Court for the County of Maricopa in the State of Arizona. See Aetna Casualty & Surety Co. v. Whaley, 173 Va. 11, 3 S.E.2d 395 (1939). In her “Petition for Judgment,” appellee alleged jurisdiction “pursuant to the Uniform Enforcement of Foreign Judgments Act, § 8.01-465.1, et seq., of the ... Code of Virginia,” pursuant to “§ 8.01-466, et seq., of the ... Code of Virginia,” and pursuant to “the Uniform Services Former Spouse’s Protection Act (USFSPA), 10 U.S.C. [§] 1401 et seq.”

Appellee also alleged that the parties were divorced July 6, 1982, in Arizona and that the divorce decree equitably divided [397]*397all their community, joint, and common property. She further alleged that on September 24, 1992, a court of record in Arizona entered an order that modified the 1982 divorce decree pursuant to the USFSPA and awarded her “one half of the community interest in the disposable military retirement pay of the [appellant].” Appellee alleged that appellant resided in Fairfax County, was retired from active duty with the United States Army, and was receiving military retirement benefits.

Appellant filed a demurrer in which he alleged that relief was not available under 10 U.S.C. § 1408(a)(4) because he retired from the military under Chapter 61 disability and that appellee had been denied payment when she forwarded her claim to the Defense Finance and Accounting Service. When a judge overruled the demurrer, appellant filed an answer generally denying the allegations in the petition.

II.

The parties agree upon the essential facts. The appellant joined the United States Army in December 1961 and married appellee in November 1964. They were divorced in Arizona by a final decree entered July 6, 1982. The decree equitably divided between them all community, joint, and common property without any reference to retirement pay.

On September 24, 1992, an Arizona superior court granted appellee’s petition to modify the final divorce decree and awarded appellee “one-half of the community interest in the disposable military retirement pay of ... Daniel Joseph Bullís, upon his retirement.” The order also stated the following:

The community interest is to be determined by the fraction whereby the numerator is the number of months that [Daniel Joseph Bullís] was in the service during the marriage of the parties, or 212 months, over the denominator, which will be the total number of months that [he] has been and will remain in the Armed Services until retirement.

The order further stated that “[appellant was] neither ... present [nor] represented by counsel, although counsel for ... [398]*398[appellant had] been previously notified of this hearing”; that federal legislation enacted after McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), entitled appellee to file a claim for a portion of appellant’s disposable military retirement payments; that the court observed and complied with the Soldiers and Sailors Civil Relief Act of 1940; and that the court had jurisdiction under Arizona law to modify the final decree and order a division of the retirement payments. Appellant did not appeal from the Arizona order modifying the final divorce decree.

The trial judge found the Arizona judgment to be valid and entered a Virginia judgment awarding appellee “a sum equal to one-half ... of the disposable interest of [appellant’s] nondisability, nonexempt military retired pay on a monthly basis pursuant to the percentage formula under the amended law of 1986 of 10 U.S.C. [§] 1408, Uniformed Services Former Spouses Protection Act.” Based upon a finding that appellant retired from the military in March 1993 with a permanent disability rating of 60% and received $596.85 per month “non-disability, nonexempt, disposable portion of retired pay,” the trial judge entered judgment awarding appellee $294.43 monthly and $4,774.80 in arrearages, computed from the date of appellant’s retirement. The trial judge retained jurisdiction “pending [appellee’s] first receipt of payment for her portion in monthly retired pay, the sum certain amount to be determined by the Defense Finance and Accounting Service in Indianapolis, Indiana according to the formula established by the Arizona court.” In addition, the trial judge retained jurisdiction “to reflect any increase in the cost of living adjustment (COLA) which [appellant] may have received pending first payment to [appellee]” and ordered other relief. This judgment order is the subject of this appeal.

III.

Appellant has not addressed in his brief the statute that confers jurisdiction in this Court to entertain his appeal. Appellee does not contest jurisdiction. We are required, however, to ascertain our jurisdiction before proceeding. [399]*399West v. Commonwealth, 18 Va.App. 456, 445 S.E.2d 159 (1994), appeal dismissed, 249 Va. 241, 455 S.E.2d 1 (1995); In re O’Neil, 18 Va.App. 674, 446 S.E.2d 475 (1994). In Virginia, “[t]he general appellate jurisdiction ... is in the Supreme Court and not in the Court of Appeals.” West, 18 Va.App. at 458, 445 S.E.2d at 160. This Court’s appellate jurisdiction in civil cases “is limited to the subject matter set forth in Code §§ 17-116.05 and 17-116.05:1.” West, 18 Va.App. at 457, 445 S.E.2d at 159. In pertinent part, Code § 17-116.05 provides as follows:

Any aggrieved party may appeal to the Court of Appeals from:
$$$$$$
3. Any final judgment, order, or decree of a circuit court involving:
a. Affirmance or annulment of a marriage;
b. Divorce;
c. Custody;
d. Spousal or child support;
e. The control or disposition of a child;
f. Any other domestic relations matter arising under Title 16.1 or Title 20; or
g. Adoption under Chapter 11 (§ 63.1-220 et seq.) of Title 63.1;
4.

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Bluebook (online)
464 S.E.2d 538, 21 Va. App. 394, 1995 Va. App. LEXIS 910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bullis-v-bullis-vactapp-1995.