Hand v. Hand

802 So. 2d 560, 2001 WL 1511917
Supreme Court of Louisiana·Decided November 28, 2001·No. 2001-C-0714·Published·Cited by 2 cases

Opinion

802 So.2d 560 (2001)

Ivan L. HAND, Jr.
v.
Gwendolyn Robinson HAND.

No. 2001-C-0714.

Supreme Court of Louisiana.

November 28, 2001.

*561 Alfred S. Lippman, David M. Thorguson, Lippman, Mahfouz & Martin, Morgan City, Counsel for Applicant.

Allen A. McElroy, Jr., Berwick, Robert L. Duffy, Morgan City, McElroy & Duffy, Counsel for Respondent.

JOHNSON, Justice.[*]

We granted this writ application to determine whether the legal regime of a community of acquets and gains is created when one spouse acquires a Louisiana domicile and the other never resides in Louisiana. After a thorough review of the jurisprudence, we conclude that when parties are married elsewhere, both spouses must be domiciled in Louisiana to create a community property regime.

FACTS AND PROCEDURAL HISTORY

Ivan L. Hand, Jr. ("plaintiff") and Gwendolyn Robinson Hand ("defendant") were married in South Carolina on June 14, 1992 and shortly thereafter moved to England. In 1993, the defendant moved to South Carolina while the plaintiff moved to New Jersey. In 1994, the plaintiff moved to Morgan City, Louisiana while the defendant remained in South Carolina. The plaintiff filed for divorce on February 15, 1996 in the 16th Judicial District Court for the Parish of St. Mary. The judgment of divorce was signed on September 20, 1996, pursuant to Civil Code art. 102.[1]

The defendant filed a reconventional demand asserting that she was entitled to an equal division of all assets acquired by the plaintiff since February of 1991. She claimed that although that date preceded the marriage, she deserved an equitable division because the two parties had lived together. Alternatively, she claimed that the equal division should be prospective from the date of marriage. She also asserted a claim for division or equitable distribution of all assets or mismanagement of assets acquired by the plaintiff during the time he resided in Louisiana. *562 All of the assets to which she claimed entitlement were movables.

The plaintiff filed an exception of no cause of action. He claimed that the defendant did not have a claim for partition, equitable distribution or mismanagement of assets because all the assets he acquired prior to the marriage and while he resided in Louisiana were his separate property. The trial court found that a community of acquets and gains never existed between the parties. Therefore, it held that the property the plaintiff acquired while residing in Louisiana was not subject to Louisiana's community property regime.

The court of appeal determined that the legislature did not intend that both spouses need acquire Louisiana domicile for community property laws to apply. Consequently, it held that the community of acquets and gains applies to all spouses domiciled in this state, regardless of their domicile at the time of marriage or the place of celebration of their marriage. The court of appeal, therefore, reversed the trial court's ruling. We granted writs 01-0714 (La.5/11/01), 792 So.2d 1 and now reverse.

LAW AND ANALYSIS

We begin our analysis by reviewing the relevant provisions of the Louisiana Civil Code that define the various matrimonial regimes in Louisiana. Under our law, "[a] matrimonial regime is a system of principles and rules governing the ownership and management of the property of married persons as between themselves and toward third persons." LA. CIV.CODE art. 2325. Furthermore, matrimonial regimes may be either legal, contractual or a combination of the two. See id. art. 2326. The legal regime is the community of acquets and gains. See id. art. 2327. Community property includes all property acquired during the existence of the legal regime through the effort, skill or industry of either spouse. See id. art. 2338. Conversely, a contractual regime is one whereby the legal regime is either modified or terminated, thereby creating a separate property regime. See id. art. 2328. As such, separate property includes property acquired by a spouse prior to the establishment of a community; property acquired with separate things, or with separate and community things when the value of the community things is inconsequential compared to the value of the separate things; and property acquired by inheritance or individual donation. See id. art. 2341.

Louisiana has always been a community property state. See generally, DAGGETT, THE COMMUNITY PROPERTY SYSTEM OF LOUISIANA (1945). Moreover, Louisiana jurisprudence is well-settled in the presumption that all married persons living in Louisiana are under the legal regime (community property) unless they expressly designate otherwise. See, e.g., Robinson v. Robinson, 99-3097 (La.1/18/01), 778 So.2d 1105, 1113 (citations omitted). Spouses may enter into a separate property agreement "[d]uring the first year after moving into and acquiring a domicile in this state ... without court approval." LA. CIV.CODE art. 2329. If, however, they do not enter such an agreement within a year after establishing Louisiana domicile, they may only do so under court approval. See id; see also Robinson, 778 So.2d at 1114.

In the case sub judice, both spouses did not establish domicile in Louisiana. Rather, only the plaintiff moved to Louisiana while the defendant resided in South Carolina. Accordingly, the issue in light of our well-settled community property law, is whether one spouse's establishment of domicile in Louisiana subjects both spouses to Louisiana's governing community property regime. This issue was initially *563 addressed by this Court in Succession of Dill, 155 La. 47, 98 So. 752 (1923). It, however, has not been considered since the comprehensive 1979 Civil Code revisions to Louisiana's law on matrimonial regimes. Therefore, the issue is now ripe for our review.

Conflict of Laws Provisions

The court of appeal was correct in relying on the Civil Code's Conflict of Laws articles in determining whether the movable property in dispute is community or separate. In 1991, the Legislature adopted Book IV of the Civil Code to assist our courts in resolving claims where different jurisdictions apply different laws. Relevant to our examination is Civil Code article 3523. "[T]he rights and obligations of spouses with regard to movables, wherever situated, acquired by either spouse during the marriage are governed by the law of the domicile of the acquiring spouse at the time of acquisition." Id. (emphasis added). Moreover, the comments to article 3523 state:

[t]his Article is primarily a rule of classification and functions as a rule of distribution.... For example, if the acquiring spouse was domiciled in this state at the time he acquired the movable, then regardless of its location, this movable will be classified as community or separate property according to the law of this state.

Id. (comment (c)) (emphasis added). We, therefore, agree with the court of appeal's application of Louisiana's laws of matrimonial regimes. As such, we find it useful to examine the relevant legal history.

Jurisprudential and Statutory Background

In Dixon v. Dixon's Executors, 4 La. 188 (1832), this Court held that property acquired by a husband after moving to Louisiana, while his wife remained in Pennsylvania, was not subject to the community of acquets and gains. Thus, the property acquired in Louisiana was classified as separate property. Some years l

Free access — add to your briefcase to read the full text and ask questions with AI

Hand v. Hand, 802 So. 2d 560, 2001 WL 1511917 (La. 2001).

802 So. 2d 560 (Hand v. Hand) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Shaheen v. Khan
142 So. 3d 257 (Louisiana Court of Appeal, 2014)
Hand v. Hand
834 So. 2d 619 (Louisiana Court of Appeal, 2002)