In re Malon [1998] FMCSC 25; 8 FSM Intrm. 591 (Chk. S. Ct. App. 1998) (9 December 1998)

CHUUK STATE SUPREME COURT
APPELLATE DIVISION
Cite as In re Malon[1998] FMCSC 25; , 8 FSM Intrm. 591 (Chk. S. Ct. App. 1998)

IN THE MATTER OF
THE ESTATE OF DARO MALON,
Deceased.

CIVIL APPEAL NO. 12-98

OPINION

Argued: December 7, 1998
Decided: December 9, 1998

BEFORE:

Hon. Soukichi Fritz, Chief Justice, Chuuk State Supreme Court, presiding
Hon. Yoster Carl, Temporary Justice, Chuuk State Supreme Court*
Hon. Midasy O. Aisek, Temporary Justice, Chuuk State Supreme Court**

*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
**Directing Attorney, Micronesian Legal Services Corporation, Weno, Chuuk

APPEARANCES:

For the Appellants:
Wesley Simina, Esq.
P.O. Box 94
Weno, Chuuk FM 96942

For the Appellee:
Nahoy Selifis, trial counselor
P.O. Box D
Weno, Chuuk FM 96942

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HEADNOTES

Appeal and Certiorari
An appellee's oral motion at oral argument to dismiss for appellant's failure to prosecute the appeal in accordance with the appellate rules may be denied because he has waived any objections by his delay in raising procedural matters until the time set for oral argument and by not complying with the appellate rule concerning motions. In re Malon[1998] FMCSC 25; , 8 FSM Intrm. 591, 592 (Chk. S. Ct. App. 1998).

Appeal and Certiorari - Standard of Review; Domestic Relations - Probate
A probate appeal may be remanded when a number of essential issues and facts have yet to be established and the ends of justice require that additional matters must be considered, including whether the appellants are proper parties to the proceedings and who are the beneficiaries or the exact persons entitled to share in the assets of the estate and what the proposed division of the assets is. In re Malon[1998] FMCSC 25; , 8 FSM Intrm. 591, 592 (Chk. S. Ct. App. 1998).

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COURT'S OPINION

SOUKICHI FRITZ, Chief Justice:

This is an appeal from rulings of the Trial Division in proceedings to probate the estate of Daro Malon.

During oral argument, Counsel for the Appellee made a Motion to Dismiss the Appeal on various grounds relating to Appellant's failure to prosecute the appeal in accordance with the CSSC Rules of Appellate Procedure. Counsel for the Appellant objected to the Court's consideration of an oral motion during oral argument and contended that the Appellee had waived any objections by the delay in raising procedural matters until the time set for oral argument.

We find merit in the view advanced by Counsel for Appellant. His argument is bolstered by Rule 27, CSSC Rules of Appellate Procedure, which relates to the form of motions, service of the same, time frames for reply and number of copies required to be filed. Compliance with Rule 27 is especially essential where the motion seeks dismissal of the appeal.

We have carefully considered the arguments of counsel and have reviewed the record of proceeding in the Trial Division. With this background, we find that a number of essential issues and facts have yet to be established and that the ends of justice require that additional matters must be considered.

It appears that a proper disposition of this case requires that a determination be made as to whether the Appellants are proper parties to these proceedings. Also, there must be a finding that identifies the beneficiaries or the exact persons entitled to share in the assets of the estate. Further, the conclusion in the Trial Division should include a consideration of the proposed distribution of the assets.

The Appellee's Motion to Dismiss the Appeal is denied and the case is remanded to the Trial Division with instructions to conduct further proceedings consistent with the views expressed herein.