Before Bridges, C.j., Coleman, Diaz, And Southwick, JJ.
The opinion of the court was delivered by: Southwick, J.
DATE OF JUDGMENT: SEPTEMBER 3, 1996
TRIAL JUDGE: HONORABLE WILLIAM L. STEWART
COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT
¶1. Robert Johnson and Catherine Pogue were granted a divorce by the Superior Court of California in 1989. After the divorce, Mr. Johnson relocated to Virginia and Ms. Pogue returned to Mississippi. Mr. Johnson was involuntarily retired from the Navy in 1994. He filed a petition in Mississippi for registration of a foreign judgment and a motion seeking a modification of the California judgment. Ms. Pogue answered and filed a counterclaim for contempt, asserting that Mr. Johnson was delinquent in his payments of spousal support. The chancellor found that Mr. Johnson was not fully complying with the California judgment. The court ordered him to purchase an annuity for his ex-wife and to name her as beneficiary on a life insurance policy. The court entered a judgment for past due spousal support and awarded attorney's fees. However, the court also concluded that Mr. Johnson's involuntary retirement constituted a material change in circumstances. The court reduced the spousal support payment from $1,150 to $500 per month.
¶2. Mr. Johnson appeals asserting that the chancery court erred in these respects: (1) by applying Mississippi substantive law rather than California and federal law, (2) by ordering a private annuity be obtained, (3) by failing to terminate the spousal support and term life insurance, and (4) by awarding attorney's fees to Ms. Pogue. We affirm on the first allegation, reverse and remand on the second and third, and reverse and render on the fourth.
¶3. Robert Johnson and Catherine Pogue were married on August 16, 1969, and lived together until February 15, 1987. Their one child is Janna Michelle Johnson, who was born in 1973. After holding a contested proceeding in December 1988, the Superior Court of California entered a judgment of divorce. The judgment contained provisions relating to child custody and support, spousal support, retirement benefits, and a division of property. The court noted that Ms. Pogue had made a substantial contribution to the success of Mr. Johnson's naval career while significantly impairing her own earning capacity. Consequently, the court awarded her one half of Mr. Johnson's retirement benefits that were allocable to the period of their marriage. That was approximately 19 years out of what would ultimately be 28 years of military service. Upon retirement from the Navy, Mr. Johnson was required to elect a survivor's benefit plan that would provide Ms. Pogue with a continuation of benefits during her lifetime following his death.
¶4. The California court also found that Ms. Pogue, who had little education, did not possess "any real marketable skills." After concluding that her plan to acquire a Bachelor of Science degree in Nursing was reasonable, the court ordered Mr. Johnson to pay spousal support in the amount of $1,550 per month. The court also stated that the amount of spousal support would be reduced to $1,150 per month following the close of escrow for the sale of the family residence. The support would terminate upon the death of either party, the remarriage of Ms. Pogue, or further order of the court. Mr. Johnson was to maintain Ms. Pogue as the beneficiary of $75,000 of an insurance policy proceeds as long as he was required to provide support to her.
¶5. The California residence eventually sold in June 1993, and Ms. Pogue received approximately $36,000 (also referred to as $45,000, which may be a gross amount) as her share of the equity in the home. She testified that she did not at first seek employment in Biloxi after moving there in March 1993 because her mother, who lived in Meridian, was in ill health. In August 1994, Ms. Pogue obtained employment, averaging thirty hours a week, at a gift shop in Biloxi for five dollars an hour, but was laid off two months later. She testified that she did not attempt to seek further salaried employment and instead began to perform volunteer work at the local theater and at a museum.
¶6. Following the death of her mother, Ms. Pogue moved to Meridian and rented a house from her sister. She received an inheritance of approximately $80,000 from her mother's estate and placed the money in an interest bearing account. Although Ms. Pogue had received money from the sale of the marital residence in California and from her mother's estate, she asserted that she was unable to fulfill her plans of becoming a nurse. She stated that a combination of a lack of funds, a back injury from her teenage years, and her mother's illness limited her ability to enroll in a nursing program. Ms. Pogue testified that despite the back injury, she was "generally healthy."
¶7. After the divorce, Mr. Johnson remarried and eventually settled in Fairfax, Virginia. He and his present wife have two children. In August 1994, Mr. Johnson learned that he would be involuntarily retired from the Navy after twenty-eight years of service because of reductions in military force. That was two years prior to his previously expected retirement. Recognizing the effect that retirement would have on his income and his ability to maintain his obligations, Mr. Johnson consulted with a Navy Judge Advocate. According to Mr. Johnson, the attorney recommended that he seek a clarification of the California judgment. In the month of his retirement, Mr. Johnson ceased making spousal support payments to Ms. Pogue of $1,150 and instituted payments of 31% (1/2 x 19 years/28 years) of each retirement check to Ms. Pogue, which gave her $1,141 monthly. For clarity, it should be noted here that Ms. Pogue argues that after Mr. Johnson's retirement she should have continued to receive $1,150 alimony and gained an extra $1,141 from retirement.
¶8. On July 8, 1994, Mr. Johnson filed a motion in Harrison County Chancery Court to modify the California judgment, alleging a material and substantial change in circumstances. He asserted that the payment of spousal support was unreasonable due to the diminution in his monthly income. Moreover, he contended that his ex-wife would receive a substantial monthly payment in the form of retirement benefits allotted from his pension. Mr. Johnson also argued that Ms. Pogue's cost of living was substantially reduced by her relocation from California to Mississippi. The petition requested that the chancery court terminate his obligation to pay spousal support and relieve him of the obligation to designate Ms. Pogue as the beneficiary of his survivor's benefit plan. *fn1 Ms. Pogue answered and counter-claimed, seeking a monetary judgment for past due spousal support and a citation for contempt.
¶9. Mr. Johnson testified that as a result of retirement, his net income had decreased from $4,500 per month to $3,500 per month. Mr. Johnson stated that he was able to obtain part-time, contract work following his retirement from the Navy. However, he asserted that his attempts to find full-time employment were unsuccessful. Mr. Johnson argued that Ms. Pogue did not make any effort to obtain employment or further her education after the divorce. Since she received $1,141 from Johnson's retirement benefits, Mr. Johnson contended that the court should terminate his obligation to pay any spousal support.
¶10. The chancery court adopted the California court's findings of fact. The chancellor found that Mr. Johnson's retirement and reduction in income constituted a material change in circumstances. Accordingly, the court modified the monthly spousal support from $1,150 to $500 per month and granted Ms. Pogue a judgment of $12,650 for the past due support. The court also held that Mr. Johnson failed to comply with the California judgment by not electing Ms. Pogue as the beneficiary of his Navy Survivor Benefit Plan. Since Mr. Johnson elected his present wife as the beneficiary of his Navy plan, the court determined that Mr. Johnson would be "unable to perform as ordered by the California Court." Consequently, the court ordered him to purchase an annuity with Ms. Pogue as the beneficiary in the amount of thirty-one percent of his net retirement income with a reduction to reflect Ms. Pogue's obligation to pay part of the premium.
¶11. The court concluded that Mr. Johnson also failed to maintain Ms. Pogue as the beneficiary of part of his term life insurance. The court ordered Mr. Johnson to provide life insurance in the amount of $75,000 with Ms. Pogue as the sole, irrevocable beneficiary. Finally, the court awarded Ms. Pogue attorney fees of $1,500 although she stated that she had the present ability to pay the fees.
I. CONFLICT OF LAWS: A. Modification of Spousal Support
¶12. Mr. Johnson asserts that the chancery court erred in applying Mississippi substantive law to the modification of the California divorce decree. Since the chancery court adopted the California findings of fact, Mr. Johnson contends that the chancery court should also have applied California law to the modification of spousal support. Additionally, he argues that the chancery court should have applied federal law in regard to the Navy Survivor Benefit Plan. He asserts that the court should have applied federal law to determine whether he could amend his election and thereby comply with the original judgment.
¶13. The Mississippi Supreme Court has adopted the center of gravity or the most significant relationship test embodied in the Restatement (Second) of Conflicts of Law. Church v. Massey, 697 So. 2d 407, 410 (Miss. 1997); Spragins v. Louise Plantation, Inc., 391 So. 2d 97, 99 (Miss. 1980). In resolving whether to apply the substantive laws of Mississippi or the laws of another state, under the center of gravity test a court must determine which "state has the most substantial contacts with the parties and the subject matter of the action." O'Rourke v. Colonial Ins. Co., 624 So. 2d 84, 86 (Miss. 1993). The supreme court has cited with approval the following considerations in Section 6 of the Restatement (Second) of Conflict of Laws in determining the applicable law:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relevant interests of those states in the determination of the particular issue,
(d) the protection of justified expectation,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability, and uniformity in result, and
(g) ease in the determination and application of the law to be applied.
Section 6, Restatement (Second) of Conflicts of Law (1971), cited in Spragins v. Louise Plantation, Inc., 391 So. 2d 97, 100 (Miss. 1980). Despite the court's acceptance of the enumerated factors in the Restatement, the actual "evaluation and balancing of these factors has proven quite elusive." Boardman v. United Servs. Auto. Ass'n, 470 So. 2d 1024, 1031 (Miss. 1985).
¶14. In Newman v. Newman, 558 So. 2d 821, 822 (Miss. 1990), the supreme court was faced with a choice of law question concerning a wife's claim of a property right in her former husband's military retirement pension. The couple was married in California and moved to many different places in the United States and abroad during his military career. Id. Subsequently, the husband filed for divorce while stationed in Mississippi. Id. The court resorted to the Restatement for controlling principles on whether Mississippi or California law applied. Id. at 824. The court concluded that the wife's rights, if any, were governed by the substantive law where the husband "was domiciled at the time his rights in the pension were earned." Id. at 825.
¶15. In this case, the center of gravity test favors the application of Mississippi law. Following the divorce, both parties left California. Mr. Johnson relocated to Virginia and Ms. Pogue settled in Mississippi. Neither party has instituted any proceedings in California since the entry of the divorce decree in 1989. Additionally, Mr. Johnson filed a petition to enroll the foreign judgment and to modify the decree in Mississippi; Ms. Pogue counter-claimed. Both parties availed themselves of the jurisdiction of the Mississippi courts, and Mississippi is a convenient forum for resolution of the issues. Since the entry of the decree, the most significant contacts are with Mississippi. California would seem to have no further connection to the couple. The chancery court correctly applied Mississippi substantive law to the modification issues.
¶16. Although we find that Mississippi substantive law applied to the modification of spousal support, we note that the differences between California and Mississippi law on spousal support are rather insignificant. Under Mississippi law, the chancellor may take into ...