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1995 National Legal Research Group, Inc.

MISSISSIPPI: Savelle v. Savelle, 650 So. 2d 476 (Miss. 1995).

Mississippi law governed the equitable distribution of the husband's pension in Mississippi divorce proceedings, even though he had acquired the pension in Louisiana.

This case discusses conflict-of-law issues - which only rarely come to the attention of appellate courts in equitable distribution cases.

The parties lived in Louisiana from 1958 to 1988, during which time the husband worked as a fireman in New Orleans and earned a pension. When he retired, the parties moved to Mississippi, where they were divorced three years later. In the divorce proceedings, the wife sought an equitable division of marital property and asserted that she was entitled to 50% of the husband's retirement benefits, but the trial court awarded her a lesser share. On appeal, the wife contended that the trial court erred by failing to apply Louisiana's community property law, which would have entitled her to share equally in the pension.

The Mississippi Supreme Court held that its own state law, not Louisiana law, governed equitable distribution of the pension. The court acknowledged that in Brown v. Brown , 574 So. 2d 688 (Miss. 1990), and Newman v. Newman , 558 So. 2d 821 (Miss. 1990), it had applied the community property law of other states in divorce proceedings. Those cases, however, involved military pension benefits, the court pointed out. "We have not extended this principle beyond military pension benefits, nor are we inclined to do so now. Thus, Mississippi law governs [the wife's] claim." Savelle v. Savelle, supra , 650 So. 2d at 479.

Dissent . One judge filed a dissenting opinion and argued that Louisiana law should be applied. Mississippi follows the Restatement (Second) of Conflict of Laws in deciding the appropriate state law to apply in conflicts issues, and the Restatement provides that the law of the forum where the parties were domiciled at the time the rights in the pension were earned controls its characterization, the dissenting judge said, citing Newman v. Newman, supra . The Restatement deals with movable interests acquired during marriage, and subsection 2 of S 258 mandates that the most important factor in determining the applicable state law is the parties' domicile during the acquisition of the object, the dissent pointed out. Since the parties were domiciled in Louisiana during the pension's acquisition, the court should apply Louisiana law in the characterization of this marital asset.

Other Cases . In In re Marriage of Whelchel , 476 N.W.2d 104 (Iowa Ct. App. 1991), the Iowa Court of Appeals applied S 258 of the Restatement and held that the parties' cash management account, which was acquired shortly after the parties' marriage in Texas and still located there, should be characterized under the law of Texas, as the state with the most significant relationship to the issue. The court also held, however, that Iowa law should be applied to divide the account since there was no conflict in the states' laws governing property division.

Although few dissolution cases have directly addressed conflicts issues, the holding in Whelchel on the law governing characterization is at odds with - and the holding in Savelle is consistent with - the general principle that divorce issues, including the distribution of marital property, are determined by the law of the forum state. See "Conflict of Laws in Equitable Distribution Proceedings," 8 Equitable Distribution J. 109 (Oct. 1991); see also H. Marsh, Marital Property in Conflict of Law 142, 248 (1952) (court granting equitable distribution upon divorce should apply its own state law to community property brought into the state).

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