Pernet v Aflague [1990] FMSC 8; 4 FSM Intrm. 222 (Pon. 1990) (16 April 1990)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Pernet v Aflague, [1990] FMSC 8; 4 FSM Intrm. 222 (Pon. 1990)

LORINA PERNET
Plaintiff

vs

JACK AFLAGUE
Defendant

FSM CIVIL ACTION NO. 1989-037

OPINION AND ORDER

Before Edward C. King,
Chief Justice
April 16, 1990

APPEARANCES:

For the Plaintiff:
Martin F. Mix,
Attorney at Law

For the Defendant: (None)

* * * *

HEADNOTES

Civil Procedure-Venue; Domestic Relations
In litigation brought by a mother seeking child support payments from the father, the court will not grant the defendant-father's motion to change the venue to the FSM state in which he now resides from the FSM state in which: (1) the mother initiated the litigation; (2) the couple was married and resided together; (3) their children were born and have always lived; and (4) the mother still resides. Pernet v. Aflague, [1990] FMSC 8; 4 FSM Intrm. 222, 224 (Pon. 1990).

Federalism; Domestic Relations
Statutory provisions in the Trust Territory Code concerning domestic relations are part of state law because domestic relations fall within the powers of the states and not the national government. Pernet v. Aflague, [1990] FMSC 8; 4 FSM Intrm. 222, 224 (Pon. 1990).

Federalism; Domestic Relations
Since the determination of support payments payable by a divorced husband is a matter governed by state law, the FSM Supreme Court in addressing such an issue is obligated to attempt to apply the pertinent state statutes in the same fashion as would the highest state court in the pertinent jurisdiction. Pernet v. Aflague, [1990] FMSC 8; 4 FSM Intrm. 222, 224 (Pon. 1990).

Custom and Tradition-Pohnpei; Domestic Relations
Under Pohnpeian state law after confirmation of a customary separation or divorce under 39 TTC 5, the court may order custody and child support under 39 TTC 103. Pernet v. Aflague, [1990] FMSC 8; 4 FSM Intrm. 222, 225 (Pon. 1990).

Custom and Tradition-Pohnpei; Domestic Relations
Although under historical Pohnpeian customary law only the husband had rights over the children of the marriage, now both parents have rights and responsibilities in connection with a marriage and the court should take this into consideration in determining child custody rights and support payment obligations in cases of customary divorce. Pernet v. Aflague, [1990] FMSC 8; 4 FSM Intrm. 222, 225 (Pon. 1990).

* * * *

COURT'S OPINION AND ORDER

EDWARD C. KING, Chief Justice:

This is an action brought by plaintiff, Lorina Pernet, seeking an order requiring her former husband, Jack Aflague, who is the father of her two children, to be required to make support payments to assist in providing for them.

The parties through their pleadings have agreed that Ms. Pernet is a resident of Pohnpei, that Mr. Aflague is a resident of Truk, and that this Court has jurisdiction over the case pursuant to article XI, section 6(b) of the Constitution as a result of the diversity of the state citizenship of the the parties.

Mr. Aflague did not appear at the time set for trial of this case. Instead, on January 8, three days before the January 11 hearing date, Mr. Aflague filed a motion for change of venue in the trial division of this Court in Truk.

Having reviewed the file in this case, including Mr. Aflague's affidavit in support of the motion for change of venue, and having heard representations of counsel for the plaintiff, the Court denies the motion for change of venue. While it appears that either party which might be required to go to the state where the other resides would be exposed to some hardship, it is more reasonable that Mr. Aflague, rather than Ms. Pernet, be required to bear that burden.

This is so because the marriage took place in Pohnpei and the couple resided within Pohnpei throughout the period of their married relationship. In addition, the two offspring were born in Pohnpei and have lived in the state throughout their entire lives. The defendant surely would have foreseen that if litigation arose out of the marriage, it would be likely to be conducted within the state of Pohnpei.

For the same reasons, the Court concludes that the law which governs this case, including the support obligations of Mr. Aflague, should be the law applying in the state of Pohnpei.

The statutory framework upon which the plaintiff relies is set out in Title 39 of the Trust Territory Code. These provisions remain in effect within Pohnpei as either national or state law by virtue of the transition clause, article XV of the Constitution of the Federated States of Micronesia. FSM v. Oliver, [1988] FMSC 29; 3 FSM Intrm. 469 (Pon. 1988). Control over domestic relations falls within the powers of the states rather than the national government. Mongkeya v. Brackett, [1986] FMSC 1; 2 FSM Intrm. 291, 292 (Kos. 1986).

Thus, this statute is now a part of Pohnpei state law and the obligation of this Court is to attempt to apply the statute in the same fashion as would be done by the highest state court of Pohnpei. Edwards v. Pohnpei, [1988] FMSC 6; 3 FSM Intrm. 350, 360 n.22 (Pon. 1988).

The plaintiff here alleges, and defendant does not dispute, that they were divorced pursuant to Pohnpeian custom in 1979.

Thus, the Court is being asked to confirm a customary divorce within the meaning of 39 TTC 5 (1980). Section 5 permits the courts to confirm the dissolution of a customary marriage, but says nothing about power to order support payments in such a proceeding. The provision upon which the petitioner relies as authorizing the Court to order support payments, 39 TTC 103 (1980), says:

“In granting or denying ... a divorce, the court may make such orders for custody of minor children, for their support, for support of either party and for the disposition of either or both parties' interest in any property in which both have interests, as it deems justice and the best interests of all concerned may require.”

However, this section seems to be rendered inapplicable to customary divorces by 39 TTC 4 (1980), which says, "Nothing contained in this title, except for the provisions of section 5 of this chapter, shall apply to any annulment, divorce or adoption affected in accordance with local custom ...."

Thus, it is not readily apparent that any provision other than 39 TTC 5, which is silent about power to order support payments, may be applied when a customary divorce is being considered.

Nonetheless, the Pohnpei Supreme Court has held that it has power under 39 TTC 103 to order custody and child support in connection with the court's confirmation of customary separation or divorce under 39 TTC 5. In re Kihleng, 1 Pon. S. Ct. R. 2, 9 (Tr. 1984) (Santos, C.J.).

The remaining question, whether customary law requires the former husband to make support payments, has also been answered by the trial division of the Pohnpei Supreme Court. In Solomon v. Alfons, 2 Pon. S. Ct. R. 111 (Tr. 1986) (Johnny, J.), the court reviewed Pohnpeian history and current practices. The court took judicial notice that under Pohnpeian customary law, the husband alone was deemed to have rights over the children of the marriage, and the wife had no authority or rights in the marriage. However, the court said that Pohnpeian thinking and life style have now changed. Accordingly, the Pohnpei court concluded that it is now appropriate that court orders concerning custody of children and support payments in cases confirming customary divorces, be made with an eye toward the authority and responsibility of both parents, in order to provide a peaceful and harmonious atmosphere for the children ("onepek mwahu o wahu"). 2 Pon. S. Ct. R. at 128-29.

This Court accepts those interpretations as accurate indications of the likely interpretation by the Pohnpei Supreme Court appellate division of Pohnpei state law. Accordingly, the Court finds that it has the power to award support in connection with this confirmation of a customary divorce.

The Court finds the amount requested by plaintiff reasonable. Therefore an order will be entered requiring the defendant to pay the plaintiff $100 per child per month, such payments to continue for each child until that child reaches age 18.