Anson v Rutmag [2003] FMSC 13; 11 FSM Intrm. 570 (Pon. 2003) (29 April 2003)

FSM SUPREME COURT TRIAL DIVISION
Cite as Anson v. Rutmag
[2003] FMSC 13; 11 FSM Intrm. 570 (Pon. 2003)

[FSM Intrm. 570]

MARLINE ANSON,
Petitioner,

vs.

TONY RUTMAG,
Respondent.

ORDER TRANSFERRING CASE TO YAP STATE COURT

CIVIL ACTION NO. 2003-013

Andon L. Amaraich
Chief Justice

Decided: April 29, 2003

APPEARANCE:

For the Petitioner: Esther M. San Nicolas, Esq.
Office of the CNMI Attorney General
Caller Box 10007 - Capitol Hill
Saipan, MP 96950

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HEADNOTES

Domestic Relations - Child Support
In domestic relations matters, the national court should abstain from exercising jurisdiction until the state court has had the opportunity to rule on the issues presented when it is a proceeding for enforcement of a foreign support order. These cases are properly commenced in the state court in which the defendant resides, rather than in the FSM Supreme Court and are properly prosecuted by a state attorney general, rather than by the FSM Attorney General. Anson v. Rutmag, [2003] FMSC 13; 11 FSM Intrm. 570, 571-72 (Pon. 2003).

Domestic Relations - Child Support
Plaintiffs seeking to prosecute a foreign child support enforcement action must file their action in state court, where they will be provided with a procedure and remedy that is identical to that which they would enjoy under the national code. When such a case has been filed in the FSM Supreme Court, it will be ordered transferred to a state court with the proviso that if that court has not ruled on the issues presented within 45 days, the FSM Supreme Court may reinstitute active proceedings. The national court’s role is to docket and transfer the case to a state court for determination of the paternity and child support issues. Anson v. Rutmag, [2003] FMSC 13; 11 FSM Intrm. 570, 572 (Pon. 2003).

Domestic Relations - Child Support; Statutes; Transition of Authority
When a state has not enacted laws in an area within its jurisdiction such as child support, national law is applicable to the state court proceeding, because the Trust Territory Code reciprocal

[FSM Intrm. 571]

support enforcement provisions, now codified at 6 F.S.M.C. 1711, are imputed to be state law under the FSM Constitution's Transition Clause. Under that clause, Trust Territory statutes that were applicable to the states became part of the states' laws regardless of whether they were published thereby. They stand as the laws of the states until amended, superseded or repealed. Anson v. Rutmag, [2003] FMSC 13; 11 FSM Intrm. 570, 572 (Pon. 2003).

Domestic Relations - Child Support
Reciprocal support enforcement procedure requires that a state attorney general's office be diligent in its prosecution of it, and that, after a hearing, the state court will issue an order that decides the paternity question and determines the amount of child support and medical insurance coverage, if any, to which the petitioner is entitled. Anson v. Rutmag, [2003] FMSC 13; 11 FSM Intrm. 570, 572-73 (Pon. 2003).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

This is an action to establish paternity and obtain child support. Petitioner Marline Anson is a resident of the Commonwealth of the Northern Mariana Islands (CNMI). Respondent Tony Rutmag is a resident of Yap, in the Federated States of Micronesia (FSM).

On April 9, 2003, a Certificate and Order issued in February 2002 by CNMI Commonwealth Superior Court Judge Robert Naraja was filed in this Court. The Order states: "In the opinion of the undersigned Judge/Presiding Officer, the enclosed petition and testimony set forth facts from which it may be determined that the Defendant/Respondent owes a duty of support to the named dependents."

Attached to the Certificate and Order is a child support petition alleging that the parties lived together from 1993 to 2000 and had a child in the state of Yap during that time. The petition names Tia Correen T. Rutmag, born September 3, 1999, as the child. Respondent is named on the child's birth certificate, which is also attached to the petition.

No child support amount was set by the CNMI Court, likely because respondent's income is listed as "unknown" to petitioner. Petitioner requests that she be awarded whatever amount of current support is required by the laws or child support guidelines of Yap, as well as medical coverage to the extent permitted by the State of Yap. Uniform Support Petition of Marline Anson at 2.

The threshold question is whether this case should be determined by the FSM Supreme Court trial division in Yap, or by the Yap State Court. FSM law provides for the reciprocal enforcement of child support orders. See 6 F.S.M.C. 1711 et seq. However, case law supports the conclusion that in domestic relations matters, the national court should abstain from exercising jurisdiction until the state court has had the opportunity to rule on the issues presented. In Burke v. Torwal, [1996] FMSC 7; 7 FSM Intrm. 531 (Pon. 1996), the Court held:

Based on the traditional jurisdiction of the states over matters of domestic relations, and the language and history of the applicable statutory provisions, the Court finds that this proceeding for enforcement of a foreign support order is properly commenced in the state court in which the defendant resides, rather than in the FSM Supreme Court. For the same reasons, the Court finds that these cases are properly prosecuted by the Pohnpei State Office of the Attorney General, rather than by the FSM Office of the Attorney

[FSM Intrm. 572]

General.

7 FSM Intrm. at 532-33. Then, in Villazon v. Mafnas, [2003] FMSC 1; 11 FSM Intrm. 309 (Pon. 2003), the Pohnpeian plaintiffs filed in the national court a petition to enforce a child support order that had been obtained in the CNMI, where the respondent resided. This court held that plaintiffs seeking to prosecute a child support enforcement action in a foreign jurisdiction must file their action in state court, where they would be provided with "a procedure and remedy that is identical to that which they would enjoy under the national code." Id. at 311. In Villazon v. Mafnas, the FSM Supreme Court clerk was ordered to transfer the case to the Pohnpei Supreme Court with the proviso that if that Court had not ruled on the issues presented within 45 days, the FSM Supreme Court would immediately reinstitute active proceedings in the national court. Id. See also In re Nahnsen, 1 FSM Intrm. 97 (Pon. 1982).

In sum, the role of the national court in the present case is to docket and transfer this case to the Yap State Court for determination of the issues of paternity and child support. This Court takes judicial notice of the fact that Title 27 of the Yap State Code, entitled "Domestic Relations," is "reserved" for some future time when Yap enacts laws in this area. Accordingly, national law is applicable to the state court proceeding, because the reciprocal support enforcement provisions of the Trust Territory Code, 39 TTC 301, now codified at 6 F.S.M.C. 1711, are imputed to Yap under the Transition Clause of the FSM Constitution.^[1] Under the Transition Clause, Trust Territory statutes that were applicable to the states became part of the states' laws regardless of whether they were published thereby. They stand as the laws of the states until amended, superseded or repealed. Pohnpei v. Mack, [1987] FMPSC 3; 3 FSM Intrm. 45, 55 (Pon. S. Ct. Tr. 1987); FSM Const. art. XV, § 1.

[1] After a hearing, the Yap State Court shall issue an order that decides the question of

[FSM Intrm. 573]

paternity and determines the amount of child support and medical insurance coverage, if any, to which petitioner is entitled. A copy of that order shall be sent to the FSM Supreme Court in Palikir, Pohnpei, as well as to the parties and CNMI court and attorney general.

In light of the foregoing analysis, the Chief Clerk of the FSM Supreme Court is HEREBY ORDERED to transfer this case by: (1) providing a copy of this Order to the Trial Division of the Yap State Court, and (2) forwarding petitioner's Certificate and Order, with attachments, to the Trial Division of the Yap State Court for docketing. If, 60 days after the date of entry of this Order, the state court has not ruled on the issues presented, this Court will immediately reinstitute active proceedings in this litigation.

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_______________________________________

Footnotes:

1. A statute of the Trust Territory continues in effect except to the extent it is inconsistent with this Constitution, or is amended or repealed. A writ, action, suit, proceeding, civil or criminal liability, prosecution, judgment, sentence, order, decree, appeal, cause of action, defense, contract, claim, demand, title, or right continues unaffected except as modified in accordance with the provisions of this Constitution.
   

FSM Const. art. XV,7; 1.

2. Title 6, chapter 17, section 1742 of the FSM Code provides:

§ 1742. Duties of the Court and officials of the Trust Territory as respg Sta8212; Prosecutionution of case.

(1) After fter the responding Court receives copies of the complaint, certificate, and act from the initiating court, the Clerk of Courts shall docket the case and notify the District Attorney of his action.

(2) The District Attorney shall prosecute the case diligently. He shall take all action necessary in accordance with the laws of the Trust Territory to enable the Court to obtain jurisdiction over the obligor or his property and shall request the Clerk of Courts to set a time and place for a hearing and give notice thereof to the obligor in accordance with law.

Yap State Court is the "responding Court." 6 F.S.M.C. 1712(12).

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