IN COURT OF APPEALS
In re the Marriage of:
Teri Joan Reed, petitioner,
Alaa Esam Albaaj,
Filed October 24, 2006
Polk County District Court
File No. F4-04-1725
Anne M. Hoefgen, Legal Services of Northwest Minnesota, 1015 Seventh Avenue North, P.O. Box 838, Moorhead, MN 56560 (for respondent)
Alaa Esam Albaaj,
Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.
S Y L L A B U S
A member of the armed forces who is incarcerated for crimes committed while in active duty is not in “military service” for the purposes of the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. app. §§ 501-596 (Supp. III 2003), and is therefore not entitled to the protection of the SCRA when a civil proceeding is initiated during the servicemember’s incarceration.
O P I N I O N
On appeal from a Minnesota dissolution judgment, pro se appellant-father, a member of the armed forces incarcerated in a Kansas military prison, argues that the district court (1) erred by determining that appellant is not entitled to the protection of sections 521, 522, and 525 of the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. app. §§ 501-596 (Supp. III 2003); (2) lacked jurisdiction to enter a judgment against appellant; (3) prematurely dissolved appellant’s marriage to respondent-mother when appellant lacked counsel in Minnesota; and (4) abused its discretion by awarding respondent custody, by inequitably dividing the marital property, and by failing to appoint a guardian ad litem.
We affirm in part because we conclude that appellant is not in military service for purposes of the SCRA; that appellant waived his defense of lack of personal jurisdiction; that appellant has no statutory or constitutional right to counsel during a dissolution hearing; that the district court did not abuse its discretion by failing to appoint a guardian ad litem; and that the district court did not abuse its discretion by awarding respondent sole physical custody of the parties’ children.
But we remand for further findings because the district court failed to make sufficient best-interests findings to support its award of sole legal custody to respondent. And we reverse in part because the district court awarded appellant’s nonmarital property to respondent without making the findings necessary to support such an award.
In May 2004, Reed and the parties’
two children moved to
Although Albaaj was technically in default, the district court allowed him to participate by telephone at the final dissolution hearing. But it appears from the record that Albaaj hung up the phone before any testimony was taken, and the hearing proceeded without him.
The district court granted Reed’s petition for dissolution, awarded her sole legal and sole physical custody of the two children, and divided the parties’ marital property. This appeal follows.
I. Was Albaaj in military service while he was incarcerated and therefore entitled to protection under the Servicemembers Civil Relief Act in the marriage-dissolution proceeding?
II. Did the district court have personal jurisdiction over Albaaj and subject-matter jurisdiction to dissolve Albaaj and Reed’s marriage, to determine custody of the parties’ children, and to divide the parties’ property?
III. Was Albaaj denied due process because he was not represented by counsel during the marriage-dissolution proceeding?
IV. Did the district court abuse its discretion by granting sole legal and sole physical custody to Reed, by its division of the parties’ property, and by failing to appoint a guardian ad litem?
I. Applicability of the SCRA
argues that the district court erred by determining that he is not entitled to
the protection of sections 521, 522, and 525 of the Servicemembers Civil Relief
Act (SCRA), 50 U.S.C. app. §§ 501-596 (Supp. III 2003). “The applicability of a statute is an issue
of statutory interpretation, which appellate courts review de novo.” In re
Matter of Ramirez v. Ramirez, 630 N.W.2d 463, 465 (
After Albaaj received service of the summons and petition for dissolution of marriage, he moved the district court for an “extension” and asked for any “appropriate” relief under the SCRA. The district court denied his motion, determining that Albaaj was not entitled to protection under the SCRA.
Section 522 of the SCRA provides:
At any stage before final judgment in a civil action or proceeding in which a servicemember described in subsection (a) is a party, the court may on its own motion and shall, upon application by the servicemember, stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met.
50 U.S.C. app. § 522(b)(1). Section 522 applies to
any civil action or proceeding in which the defendant at the time of filing an application under this section . . . is in military service or is within 90 days after termination of or release from military service . . . and has received notice of the action or proceeding.
50 U.S.C. app. § 522(a).
The district court concluded that
Albaaj was not entitled to protection under the SCRA because a person is not in
military service when he is incarcerated in a military prison. Albaaj relies on Wilson v. Courter, 46 M.J. 745 (A.F. Ct. Crim. App. 1997), toargue that his incarceration does not
affect his military-service status. But
For the purposes of the SCRA, the term “military service” means
in the case of a servicemember who is a member of the Army, . . . active duty, as defined in section 101(d)(1) of title 10, United States Code . . . and any period during which a servicemember is absent from duty on account of sickness, wounds, leave, or other lawful cause.
50 U.S.C. app. §
511(2). The term “active duty” means
“full-time duty in the active military service of the
This is a matter of first impression in Minnesota, but courts in other jurisdictions have concluded that the SCRA does not protect servicemembers who are incarcerated in military prison or who are AWOL because such servicemembers are not on active duty and are not absent from duty on account of a lawful cause. See, e.g., United States v. Hampshire, 95 F.3d 999, 1005 (10th Cir. 1996); Mantz v. Mantz, 69 N.E.2d 637, 639 (Ohio Ct. Com. Pl. 1946) (stating that the SCRA does not protect “those who through their voluntary aggressions and conduct remove themselves from the role of [servicemembers] in active service or duty”); Means v. Means, 45 Pa. D. & C.2d 228, 231 (Pa. Ct. Com. Pl. 1968) (asking, “Can it be said in logic or reason that to permit [an AWOL servicemember’s] wife to proceed with her divorce action prevents him from devoting his full energy to the defense needs of the Nation, or can it say that he has absented himself for any lawful cause?”) (quotations and footnote omitted). Because Albaaj was incarcerated in military prison for crimes that he committed while on active duty, we conclude that he was not on active duty at the time of the dissolution proceeding and was, therefore, not entitled to benefit from the protections of the SCRA.
Albaaj suggests that a state district court lacks the authority to interpret the SCRA, a federal statute. But section 522 applies to “any civil action or proceeding.” 50 U.S.C. app. § 522(a). A state district court must be authorized to interpret the SCRA in order to benefit persons in military service who are parties to actions in state court.
also suggests that the district court did not make sufficient findings of fact
to determine whether the SCRA applied to Albaaj. But the relevant fact here is that Albaaj was
in military prison for crimes that he committed during his military
service. The district court’s finding
that Albaaj was incarcerated at the United States Disciplinary Barracks in
Albaaj also argues that the district court’s decision “violate[d] the Equal Protection provisions of the Due Process Clause of the Fifth Amendment” because it created “a class of service members who are unable to use the protections” of the SCRA. He asserts that “other than his confinement, there is no legitimate basis on which to differentiate [Albaaj] from non-confined active duty personnel.” Albaaj did not raise this argument before the district court.
court generally will not consider issues that were not raised before the
district court. See Thiele v. Stich, 425 N.W.2d 580, 582 (
Albaaj argues that the district court lacked personal jurisdiction over him and lacked subject-matter jurisdiction to dissolve the marriage, award custody, and divide the parties’ property. This court reviews de novo legal issues concerning jurisdiction. McLain v. McLain, 569 N.W.2d 219, 222 (Minn. App. 1997), review denied (Minn. Nov. 18, 1997).
Due process requires
that personal jurisdiction be exercised only when the defendant has sufficient
minimum contacts with the forum state. Juelich v. Yamazaki Mazak Optonics Corp.,
682 N.W.2d 565, 570 (
the district court properly exercised personal jurisdiction over Albaaj, it
also had subject-matter jurisdiction to render judgment on child custody, to
dissolve the marriage, and to divide the parties’ marital property. According to the Uniform Child Custody
Jurisdiction and Enforcement Act, Minn. Stat. §§ 518D.101-.317 (2004), a
testified that she and her children moved to
court may grant a marriage dissolution if one of the parties has resided in
Minnesota for at least 180 days immediately preceding the commencement of the
“Upon a dissolution of marriage . .
. the court shall make a just and equitable division of the marital property of
the parties . . . .”
Albaaj argues that he was not
provided with a meaningful hearing, that his marriage was “prematurely”
dissolved, and that he was unlawfully deprived of property because he was not
represented during the dissolution proceeding.
There is no statutory or constitutional right to counsel in a
dissolution proceeding. State ex rel.
Ondracek v. Blohm, 363 N.W.2d 113, 115 (
IV. Conclusions of the District Court
Albaaj also challenges the district court’s award of sole legal and sole physical custody to Reed; the court’s division of marital property; and the court’s failure to appoint a guardian ad litem, as requested by Albaaj.
Albaaj asked the district court to award joint legal and
joint physical custody of the parties’ two children. Appellate review of a district court’s
custody determination is limited to whether the district court abused its
discretion by making findings unsupported by the evidence or by improperly
applying the law. Silbaugh v.
Silbaugh, 543 N.W.2d 639, 641 (
The district court’s dissolution order does not explicitly address the children’s best interests. But at the dissolution hearing, the district court stated its reasons for granting Reed sole legal and sole physical custody of the children: (1) Albaaj was currently incarcerated; (2) Albaaj was apparently incarcerated for a crime of violence against a third party; and (3) Albaaj has ties to another country and could flee the United States.
We note that the district court’s finding that Albaaj was incarcerated for a crime of violence against a third party is not supported by the record. Reed testified that Albaaj was incarcerated for “a variety of misconduct,” including “a sexual act with someone other than his wife, intimidating a witness, and failure to observe a direct order.” See Minn. Stat. § 624.712, subd. 5 (2004) (defining “crime of violence”). And the record does not show any other bases for Albaaj’s incarceration.
Because Albaaj was incarcerated at the time of the
hearing, it was impossible for him to have joint physical custody of his
children. But incarceration does not
necessarily preclude the incarcerated parent from being a child’s legal
custodian. See Naylor v.
Kindred, 620 N.E.2d 520, 528 (
The fact that Albaaj has ties to another country also
does not preclude him from having joint legal custody of his children. Legal custody confers “the right to determine
the child’s upbringing, including education, health care, and religious
training.” Minn. Stat. § 518.003, subd.
3(a) (2004). When parents share joint
legal custody, they have “equal rights and responsibilities, including the
right to participate in major decisions determining the child’s upbringing.”
The findings made by the district court, without more, do not justify an award of sole legal custody to Reed. Because the district court’s order does not reflect its consideration of the best-interests factors required to award Reed sole legal custody, we remand for further findings.
A district court has broad discretion regarding the
division of property in marriage-dissolution cases. Rutten v. Rutten, 347 N.W.2d 47,50
Upon a dissolution of marriage, the district court shall
“make a just and equitable division of the marital property of the parties . .
. after making findings regarding the division of the property.”
But we find that the district court abused its discretion by finding that the parties “share a joint interest in real estate” located at 4275 Solar Face Court, Colorado Springs, Colorado, and awarding Reed $7,500 for her share of that interest.
The district court found that the equity in the property was $30,000. Reed testified that Albaaj and his brother bought this property for their parents one year before she and Albaaj were married. Reed testified that she estimates that the house was worth $170,000 when Albaaj purchased it and was worth $200,000 on the date of the hearing. Reed was awarded one-half of Albaaj’s estimated equity in the property.
“Marital property” generally includes all property
acquired by either party during the marriage.
Minn. Stat. § 518.54, subd. 5 (2004).
“Nonmarital property” includes property acquired by either spouse before
When the value of nonmarital property increases
because of the efforts of one or both spouses during the marriage, the increase
in value is marital property. Nardini
v. Nardini, 414 N.W.2d 184, 192 (
A district court may award one spouse’s nonmarital
property to the other spouse if it finds that the receiving spouse’s “portion
of the marital property . . . [is] so inadequate as to work an unfair hardship,
considering all relevant circumstances.”
Minn. Stat. § 518.58, subd. 2.
If the district court “apportions property other than marital property,
it shall make findings in support of the apportionment.”
Guardian Ad Litem
Albaaj also challenges
the district court’s failure to appoint a guardian ad litem to help determine
the children’s best interests. A
district court may appoint a guardian ad litem in dissolution proceedings if
custody is an issue. Minn. Stat.
§ 518.165, subd. 1 (2004). A
district court is required to appoint a guardian ad litem in a
marriage-dissolution proceeding only when the court has reason to believe that
the child is a victim of domestic child abuse or neglect.
Because Albaaj is not in military service for the purposes of the SCRA, the district court did not err by concluding that Albaaj was not entitled to the protection of the SCRA. Because Albaaj waived his defense of lack of personal jurisdiction, the district court had jurisdiction to dissolve Albaaj and Reed’s marriage, to divide marital property, and to make a custody determination. Because Albaaj has no statutory or constitutional right to counsel during a dissolution hearing and because he was served in accordance with the rules of civil procedure, he was not denied a fair hearing. The district court did not abuse its discretion by failing to appoint a guardian ad litem. And because Albaaj was incarcerated and unable to physically care for his children, the district court did not abuse its discretion by awarding respondent sole physical custody. Therefore, we affirm in part.
But because the district court failed to make sufficient best-interests findings to support its award of sole legal custody to Reed, we remand for further findings. And because the district court awarded Reed Albaaj’s nonmarital property without making necessary findings to support an award of nonmarital property to Reed, we reverse in part.
Affirmed in part, reversed in part, and remanded.