Youngstrom v Youngstrom [1993] FMSC 54; 6 FSM Intrm. 304 (Pon. 1993) (27 December 1993)

THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Youngstrom v. Youngstrom, [1993] FMSC 54; 6 FSM Intrm. 304 (Pohnpei 1993)

[1993] FMSC 54; [6 FSM Intrm. 304]

VERNON YOUNGSTROM,
Petitioner,

vs.

NEWS YOUNGSTROM,
Respondent.

CIVIL ACTION NO. 1990-067

ORDER AND JUDGMENT

Richard H. Benson
Associate Justice

Submitted: February 3, 1993
Decided: December 27, 1993

APPEARANCES:

For the Petitioner:
Matt Mix, Esq.
P.O. Box 143
Kolonia, Pohnpei FM 96941

For the Respondent:
Daniel J. Berman, Esq.
Rush, Moore, Craven, Sutton, Morry & Beh
2000 Hawaii Tower
745 Fort Street
Honolulu, HI 96813

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[6 FSM Intrm. 305]

HEADNOTES

Domestic Relations

Under the law of Pohnpei support of the children is the responsibility of both parents. A court may order the parent without custody to make support payments. In granting or denying a divorce, the court may make such orders for custody of minor children, for their support as it deems justice and the best interests of all concerned may require. Youngstrom v. Youngstrom, [1993] FMSC 54; 6 FSM Intrm. 304, 306 (Pon. 1993).

Domestic Relations

If a court deems justice and the best interest of all concerned so require, it may award past child support. When considering child support, it is the best interests of the children with which a court is most concerned. Youngstrom v. Youngstrom, [1993] FMSC 54; 6 FSM Intrm. 304, 306 (Pon. 1993).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

I. BACKGROUND

This action was brought by the petitioner, Vernon Youngstrom, on August 16, 1990, for the confirmation of a customary divorce. The respondent, News Youngstrom, counterclaimed for child support payments for the five children of which she had custody.

A hearing was held on June 17, 1992, on the petitioner's motion for certification of issues and on the respondent's motion for child support pendente lite. The motion to certify was denied, and the motion for child support pendente lite was granted in the court's order of July 3, 1992. The court ordered payment of $30 per month per child under the age of eighteen in the custody of the respondent. Youngstrom v. Youngstrom, [1992] FMSC 13; 5 FSM Intrm. 335, 338 (Pon. 1992).

Trial was held on August 28, 1992, before Justice Amaraich. While the matter was under submission events occurred that lead to the recusal of the trial judge. Youngstrom v. Youngstrom, [1992] FMSC 26; 5 FSM Intrm. 385, 386-87 (Pon. 1992). However, a decree of divorce was entered. Id. at 387. A new trial was held on the remaining issues on February 3, 1993, and the matter submitted for decision.

II. ISSUES PRESENTED

1. Whether the child support amount paid the respondent should be increased from the amount awarded pendente lite.

The respondent's prayer for increased child support is denied. The respondent's evidentiary showing at trial was inadequate to warrant an increase above the amount determined by the court pendente lite after the parties were given a full opportunity to litigate the amount of the support at the June 17, 1992 hearing.

2. Whether a judgment should be awarded to the respondent for child support for the time period she supported the five children unaided by the petitioner after the parties separated in 1984 until child support payments began in July, 1992, pursuant to the court order of the same month.

III. REASONING

The petitioner opposes an award for past child support principally on the ground that such support has never been awarded by the Pohnpei State Supreme Court or by the FSM. I find this of little assistance because no such case has been brought to the court's attention in which it was prayed for and denied.

The respondent has cited a number of United States cases and treatises that hold that a father may be held liable for the reimbursement of child support expenses when he has failed to make any support payments. See, e.g., Dam v. Dam, 51 N.Y.S.2d 902, 903 (App. Div. 1944) ("if a father fails to support his child, the wife may recover the reasonable amounts she has expended out of her estate in discharge of his obligation"). See also Rogers v. Rogers, 143 P. 410 (Kan. 1914). The respondent seeks the sum of $14,400 for the eight years for which she received no support payments.

[6 FSM Intrm. 306]

Under the law of Pohnpei support of the children is the responsibility of both parents. Solomon v. Alfons, 2 P.S. Ct. R. 111, 128-29 (Tr. 1986). A court may order the parent without custody to make support payments. Pernet v. Aflaque, [1990] FMSC 8; 4 FSM Intrm. 222, 225 (Pon. 1990); Solomon v. Alfons, 2 P.S. Ct. R. 111, 131 (Tr. 1986); Nix v. Nix, 1 P.S. Ct. R. 154 (Tr. 1985); In re Kihleng, 1 P.S. Ct. R. 2, 10 (Tr. 1984). The applicable statute reads: "In granting or denying . . . a divorce, the court may make such orders for custody of minor children, for their support . . . as it deems justice and the best interests of all concerned may require." 39 TTC 103. This statute, by virtue of the Transition Clause of the FSM Constitution, article XV, is part of the law of Pohnpei. Pernet, 4 FSM Intrm. at 224. The statute is broadly worded. It will allow an award for past child support if I deem "justice and the best interest of all concerned" require it. When considering child support, it is the best interests of the children with which I am most concerned.

I find that an order for past child support is warranted under the reasoning the United States cases. That reasoning is harmonious with the statutory and case authority of the FSM and Pohnpei showing a duty to child support, and not contrary, so far as has been shown to me, to Micronesian custom and tradition and the social and geographic condition of the country. I take into account the following factors:

It is undisputed that the respondent first requested child support in 1988; that she counterclaimed for child support in her answer of October 1990; and that the petitioner paid no child support until he was under the compulsion of the court's July 3, 1992 order to do so. I also note that the petitioner operates a car repair business and owns an undivided interest with his siblings in real property in Kosrae which realizes substantial income to the petitioner.

Weighing the equities before me I conclude that the respondent should be awarded child support for the children in her custody for the calendar years 1989, 1990, 1991, and the first six months of 1992 at the rate of $30 per month per child under the age of eighteen. This award is not to be interpreted to mean that a demand for child support is necessary before there is an obligation for child support.

I find that this sum equals $5,640.00.1^[1] This sum is arrived at in the following manner: $30 per month per child for the four youngest children for three years and six months equals $5,040.00; to this is added $600 for the oldest child, Erwine, who became eighteen on September 13, 1990, calculated at $30 per month for the calendar year 1989 and the first eight months of 1990. Counsel for the parties are encouraged to work together to determine how this sum might best be paid.

IV. CONCLUSION

The amount of child support awarded the respondent pendente lite, $30 per month per child in her custody under the age of eighteen, shall be entered as a final judgment. Judgment shall also be entered for the respondent in the amount of $5,640, which sum represents the petitioner's child support responsibilities for the time prior to the court's order of July 3, 1992.

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^[1] I note that the statutory postjudgment interest on this amount equals $42.30 per month.