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. 10 9 , 7 85

IN THE COURT OF APPE ALS OF THE STATE OF KANSAS

V ERONIA F OX , Appellant
,

v.

E DWARD F OX , Appellee

.

SYLLABUS BY THE COUR T

1.
Whether a court has subject matter jurisdiction is a question of law over which an appellate court exercises unlimited review.

2.
Whe n possible in construing federal statutes, state courts should seek direction from the decisions of federal courts interpreting those statutes . Absent such direction, it is within the appellate court's power to interpret federal s tatutes. Whe n an appellate court can find no binding authority, it must construe the provisions according to ordinary principles of statutory construction.

3. The phrase "consent to the jurisdiction of the court" in the Uniformed Services Former Spouses' Protection Act (USFSPA) , 10 U.S.C. § 1408 (c)(4) (2012) refers to personal jurisdiction, not to subject matter jurisdiction. A party cannot consent to subject matter jurisdiction pursuant to the USFSPA.2

4.
Under Ka nsas law, parties can not confer subject matter jurisdiction by consent, waiver, or estoppel. Equitable arguments and doctrines, no matter how compelling, are insufficient by themselves to confer subject matter jurisdiction upon a court.

5.
The subject matter jurisdiction over marital property created by K.S.A. 2013 Supp.
23

- 2801 does not extend to include property of parties to a divorce action filed in a foreign country when the parties never lived in Kan sas and did not own property in
Kansas , prior to the divorce becoming final in the foreign country

.

Appeal from Riley District Court; J OHN F. B OSCH , judge . Opinion filed March 14, 2014

. Affirmed

.

Mark Edwards
, of Hoover, Schermerhorn, Edwards, Pinaire & Rombold , of Junction City, for appellant.

Davi d P. Troup
, of Weary Davis, L.C.
, of Junction City, for a ppellee.

B efore M C A NANY , P.J., S TANDRIDGE and S TEGALL , JJ.

S TEGALL , J

. : Edward and Veronia Fox were married in Germany on December 22, 1979. At that time, Edward Fox was a serviceman with the United States Army stationed in Germany and Veronia Fox was a German citizen. Approximately 17 years into the marriage, Edward Fox retired from the United States Army and began employment with the United States C ivil S ervice. Duri ng the entirety of the marriage the parties were domiciled in Germany, and when the marriage failed, Edward Fox filed for divorce in the district court of Aschaffenburg, Germany. On October 13, 2009, that court
entered a final decree of divorce. At Edward Fox 's request, and over Veronia Fox 's3

objection, the German court did not attempt to enter a judgment with respect to Edward
Fox 's pensions, either from the Army or under the Federal Employee Retirement System. The German court stated that the question of whether Veronia Fox was entitled to share
in Edward Fox 's pensions was "reserved" to the "law of obligation."

Following the divorce, s ometime in 2011, Edward Fox was transferred to a Civil
Service position at Ft. Riley, Kansas. On April 2, 2012, Veronia Fox filed her petition in
this case in Riley County D istrict C ourt , seeking "to divide property not divided at the
divorce." The petition stated that due to Edward Fox 's residency in Kansas after the
German divorce decree , the Riley County District C ourt had "acqu ired the requisite jurisdiction " to divide the pensions. Veronia Fox asked the Riley County District C ourt to undertake the division and to award her "her share of said marital property." She did not cite any statutory basis for her claim, nor did she assert any other common

- law causes of
action.

The district court granted Edward Fox 's motion to dismiss on the grounds that it lacked subject matter jurisdiction. Specifically, the court held that Edward Fox ' s "military
and civil service pensions are his separate property" and that Kansas law cannot "operate to create marital property where there was no marriage existing at the time the owner of the property came to Kansas." As such, the court determined that dismissal was necessary
as it was "without subject matter jurisdiction to award any separately owned property of
Mr. Fox , including his federal pensions, to his former wife." Veronia Fox appeals from
this order.

Whether a court has subject matter jurisdiction is a question of law over which our
review is unlimited. Graham v. Herring
, 297 Kan. 847, 855, 305 P.3d 585 (2013). As we have previously said, the "ability of Kansas trial courts to reach military retirement pay has been a troublesome process." In re Marriage of Pierce , 26 Kan. A pp. 2d 236, 238,
982 P.2d 995
, r ev. denied
, 268 Kan. 887 (1999). In 1981 , the United States Supreme4

Court prohibited state courts from dividing military pensions in state court divorce proceedings. McCarty v. McCarty , 453 U.S. 210, 101 S. Ct. 2728, 69 L. E d. 2d 589 (1981). In response, Congress enacted the federal Uniformed Services Former Spouses' Protection Act (USFSPA) , 10 U.S.C

. § 1408 (2012) , providing that a "court may treat disposable retired pay payable to a member for pay periods beginning after Jun e 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). As such, the USFSPA created a statutory grant in federal law permitting state courts to treat military pensions in a divorce proceeding according to the laws of that jurisdiction.

Veronia Fox 's first argument on appeal is that the USFSPA permits Edward Fox to consent to subject matter jurisdiction in Kansas. Her argument is premised on 10 U.S.C. § 1408(c)(4) , which states:

" A court may not treat the disposable retired pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of (A) his residence, oth er than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court. "
She argues that because Edward Fox asked the German court to separate the issue of dividing his pensions from the divorce proceedings and reserve it for another court of competent jurisdiction, he consented to the jurisdiction of a state court operating pursuant
to the USFSPA.

Thus
, we must determine whe ther 10 U.S.C

. § 1408 (c)(4) refers to subject matter jurisdiction
, to personal jurisdiction , or to both

. The interpretation of statutes involves questions of law over which we exercise unlimited review. Jeanes v. Bank of America
, 296 Kan. 870, 873, 295 P.3d 1045 (2013). " Where possible in construing federal statutes,5

state courts should seek direction from the decision s of federal courts i nterpreting similar language." Purvis v. Williams
, 276 Kan. 182, 188, 73 P.3d 740 (2003)

. Absent such
direction
, it is within this court's power to interpret federal statutes. Purvis , 276 Kan. at
187

. Where, as here, we can find no binding authority
, we must construe the provision
ourselves according to ordinary principles of statutory construction

. Sierra Club v.
Moser , 2 98 Kan. 23 , 53, 310 P.3d 360 ( 2013 )

.

We begin with the plain meaning of the statute, giving words their ordinary meaning. We will not speculate beyond such meaning when it is unambiguous. Northern
Natural Gas Co. v. ONEOK Field Services Co.
, 296 Kan. 906 , 918, 296 P.3d 1106 (2013). When statutory language is unclear or ambiguous, however, we may " employ canons of construction, legislative history, or other background considerations to divine the legislature's intent and co nstrue the statute accordingly." Stewart Title of the Midwest
v. Reece & Nichols Realtors
, 294 Kan. 553, 564

- 65, 276 P.3d 188 (2012). Finally, we must give effect " to the entire act " thereby reconciling " the different provisions so as to make them consistent, harmonious, and sensible. " State v. Engles
, 270 Kan. 530, 533, 17 P.3d 355 (2001).

There are multiple indications from the statutory language itself that Congress intended to deal only with personal jurisdiction in 10 U.S.C

. § 1408(c)(4). The section sets out three ways a court may obtain "jurisdiction over the member." This is the language of personal jurisd iction. Additionally , of the three means of obtaining jurisdictio n, the first two listed

— residency an d domicile

— are traditionally aspects of personal jurisdiction. Moreover, l ook ing at the USFSPA as a whole, we note that the
definition of a "court" in 10 U.S.C

. § 1408(a)(1)(A) is a court "of competent jurisdiction

. " This language has been construed by federal courts to mean a court with preexisting subject matter jurisdiction. See , e.g. , Steel v. U.S. , 813 F.2d 1545, 1548 (9th Cir. 1987) (holding that the USFSPA " merely empowered a court that otherwise had jurisdic tion to divide marital property" and that it "d oes not create jurisdiction, but grants power to6

courts once they have jurisdiction ")

. Finally, a cursory review of the history of the
USFSPA shows that Congress was concerned with prevent ing forum shopping by spouses who might seek out states with favorable marital property laws even if the
service member had minimal or no c ontact with that forum. See Matter of Marriage of
Booker
, 833 P.2d 734 , 739 (Colo. 1992 )

.

In light of the plain language of 10 U.S.C. § 1408(c)(4), the overall structure of the USFSPA, and it s legislative history
, we have no difficulty concluding that the phrase "consent to the jurisdiction of the court" refers merely to personal jurisdiction, not to subject matter jurisdiction. This result is in accord with the decisions of the few other state courts that have considered this narrow question. See e.g. , Wa gner v. Wagne r , 564 Pa. 448, 457

- 58, 768 A.2d 1112 (2001) ( " [The USFSPA] authorizes action by those state courts that already have subject matter jurisdiction and substantive law auth ority under pertinent state law. . . . [W] e conclude, therefore, that sec tion 1408(c)(4) refers to personal jurisdiction."). It is likewise in harmony with the general rule in Kansas that parties " cannot confer subject matter jurisdiction b y consent, waiver, or estoppel. " Bartlett Grain Co. v. Kansas Corporation Comm'n
, 292 Kan. 723, Syl. ¶ 3, 256 P.3d 867 (2011)

.

Veronia Fox takes her argumen t from Edward Fox 's actions one s t ep further
, arguing that even if he cannot consent to subject matter jurisdiction pursuant to the USFSPA, such jurisdiction should nonetheless be conferred by principles of equity such as estoppel. As just stated, however, equitable doctrines like estoppel cannot function to give a court subject matter jurisdiction where it would not otherwise have it. In Place v.
Place , 207 Kan. 734, Syl. ¶ 3, 486 P.2d 1354 (1971), the Kansas Supreme Court s tated
that even a c ourt of equity must first have " acquired j urisdiction of a subject matter. " As such, " something more than a need to do justice is required. " Frazier v. Gouds chaal
, 296 Kan. 730, 744 , 295 P.3d 542 (2013)

. Equitable arguments and doctrines, no matter how7

compelling, are insufficient by themselves to confer subject matter jurisdiction upon a

court.

Veronia Fox 's final argument on appeal is that K.S.A. 2013 Supp

. 23

- 2801 grants subject matter jurisdic tion over this matter. Again , statutory construction involves questions of law over which we exercise unlimited review. Jeanes , 296 Kan. at 873. The

statute states in relevant part: " All property owned by married persons, including the present value of any vested or u nvested military retirement pay
, . . . shall become marital property at the time of commencement by one spouse against the other of an action in which a final decree is entered for divorce, separate ma intenance, or annulment. " K.S.A. 2013 Supp. 23

- 2801(a). Veronia Fox reasons that this Kansas l aw operated to transform
Edward Fox 's military pensions into marital property at the time Edward Fox filed for divorce in Germany given that it was "an action in which a final decree is entered for
divorce." She concedes that the divorce action was filed and decided long before either of the parties ever had any contact whatsoever with the state of Kansas. Nonetheless, she
claims that this fact is irrelevant to the effect of the statute on Edward Fox 's pensions.

We are mindful that " an appellate court's interpretation of a statute should avoid
absurd or unreasonab le results." Dillon Real Estate Co. v. City of Topeka
, 284 Kan. 662, Syl. ¶ 8 , 163 P.3d 298 (2007). We have previously held that K.S.A. 2013 Supp. 23

- 280 1 vests subject matter jurisdiction over a divorce action " between two residents of Kansas and the division of property located in Kansas. " In re Marriage of Allen
, 31 Kan. App. 2d 31, 32 , 59 P.3d 1030 ( 2002 ) (construing K.S.A. 23

- 201 which was later recodified at
K.S.A. 2011 Supp. 23

- 2801)

. We decline to extend the meaning of "an action" in K.S.A. 2013 Supp. 23

- 2801 to include a divorce filed in a foreign country between two parties
who never lived in Ka nsas and who owned no property in Kansas. To do so would be to reach an absurd result not intended by the l egislature.8

Had the l egislature intended to grant courts of this state subject matter jurisdiction
over the kind of claim brought by Veronia Fox in this case, it certainly could have done

so. See , e.g. , 23 Pa. Cons. Stat. Ann. § 3104 (d) (2014) (granting Pennsylvania courts subject matter jurisdiction to decide matters of property division even after a marriage
has been dissolved in a for eign forum ). We have no such power in Kansas. The district court's dismissal of this action for lack of subject matter jurisdiction was proper.

Affirmed.