Ramp v Ramp [2003] FMSC 18; 11 FSM Intrm. 630 (Pon. 2003) (30 June 2003)

FSM SUPREME COURT TRIAL DIVISION
Cite as Ramp v. Ramp
[2003] FMSC 18; 11 FSM Intrm. 630 (Pon. 2003)

[FSM Intrm. 630]

FREDRICK L. RAMP,
Petitioner,

vs.

ERINE YOMA RAMP,
Respondent.

CIVIL ACTION NO. 1988-033

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Hearing: May 15, 2003
Decided: June 30, 2003

APPEARANCES:

For the Petitioner: Craig D. Reffner, Esq.
Law Office of Fredrick L. Ramp
P.O. Box 1480
Kolonia, Pohnpei FM 96941

For the Respondent: Mary Berman, Esq.
P.O. Box 163
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Domestic Relations - Divorce
Title 6, section 1622, FSM Code provides that any decree as to custody or support of the parties’ minor children is subject to revision by the court at any time, but does not provide for continuing jurisdiction over property issues. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 633 n.1 (Pon. 2003).

Judgments - Relief from Judgment
Rule 60(b) draws a distinction between relief from judgment for "fraud," which is subject to a one-year limitation, and for "fraud upon the court," which is not subject to such a limitation. These are two distinct types of fraud, since any other conclusion would render nugatory the one-year limitations period that is placed on "ordinary" fraud under Rule 60(b)(3). Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 635 (Pon. 2003).

Judgments - Relief from Judgment
The adversary process is designed to ferret out perjured testimony and the like, and if a party does not litigate vigorously and effectively to accomplish this, then he must live with the result. Thus,

[FSM Intrm. 631]

the advantage of focusing the inquiry on what the party seeking relief should have accomplished at the earlier trial serves all the purposes of the "intrinsic" versus "extrinsic" fraud distinction. It protects the sanctity of final judgments from those who did not adequately litigate the issues the first time around. The preservation of the sanctity of judgments and the certainty that this is meant to provide in the lives of litigants, irrespective of whether they win or lose, is the rationale for the heightened showing necessary for relief from judgment after one year has elapsed from the time of the entry of judgment. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 636 (Pon. 2003).

Judgments - Relief from Judgment
A finding of fraud on the court is justified only by the most egregious misconduct directed to the court itself, such as bribery of a judge or jury or fabrication of evidence by counsel, and must be supported by clear, unequivocal and convincing evidence. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 636 (Pon. 2003).

Judgments - Relief from Judgment
Nondisclosure is not a basis for seeking relief from an order or judgment based on allegations of fraud on the court. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 638 (Pon. 2003).

Civil Procedure -Discovery; Judgments - Relief from Judgment
When a party has received a copy of an instrument evidencing the property transfer that she now claims was concealed from her, notwithstanding this omission, and regardless of the fact that the opponent answered the interrogatory "no," when the only correct answer was "yes," it remains that the discovery responses that were served on her attorney of record and are a part of the court file contain a copy of the document conveying the half interest. Thus, she cannot now say this transaction was not disclosed to her. At most, the inconsistency between the request for production and the interrogatory created an issue for resolution by further discovery. In light of the property transfer document, even the patently incorrect interrogatory answer does not entitle her to any relief under the fraud on the court provision. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 638-39 (Pon. 2003).

Judgments - Relief from Judgment
Miscategorization of the property cannot be a basis for a fraud on the court claim when the statement of the parties’ assets and liabilities was, and is a part of the record, when the alleged miscategorization was evidently not an issue at the time the parties executed the separation agreement since the listing is attached to that agreement, and when it was not an issue when the parties stipulated to the entry of the divorce decree that incorporated the separation agreement with the attached asset listing. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 639 (Pon. 2003).

Domestic Relations - Child Support
Since any decree as to custody or support of the parties’ minor children is subject to revision by the court at any time upon motion of either party, the court has on-going jurisdiction to reconsider the question of child support previously decided. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 639 (Pon. 2003).

Choice of Law; Domestic Relations - Divorce
Because a divorce case involves the parties’ status or condition and their relationship to others, the law to be applied is that of the domicile. Thus in a divorce between a Pohnpeian, who now resides in Hawaii, and an American citizen who resides in Pohnpei and the parties lived in Pohnpei during their marriage, the court will apply Pohnpei substantive law. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 641 (Pon. 2003).

Domestic Relations - Child Support
In the context of a confirmation of a customary divorce, the court has awarded reimbursement

[FSM Intrm. 632]

for child support expenses where the father made no support payments, even when part of the reimbursement is sought for a period when no pendente lite order requiring support payments was in effect. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 641 (Pon. 2003).

Domestic Relations - Child Support
When it is a court-ordered divorce decree’s child support provisions, not a confirmation of a customary divorce, that a party seeks to modify, the court, bearing in mind the suitability to the FSM of any specific common law principle, may, in determining Pohnpei law, look to the Restatements (compilations of U.S. common law according to subject matter) and decisions from jurisdictions outside the FSM that also follow the common law tradition. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 641 (Pon. 2003).

Domestic Relations - Child Support
Court-ordered child support payments may be modified at any time circumstances render such a change appropriate, but the modification operates prospectively only. Child support cannot be modified retroactively. This is consistent with the equitable principle, suitable for Micronesia or elsewhere, that one having a claim should pursue it when he or she first has notice of it. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 641 (Pon. 2003).

Domestic Relations - Child Support
While a child support decree may be subject to revision by the court at any time, a party seeking modification of child support must show a substantial change in circumstances not anticipated by the original decree in order to justify the modification. For determination is the question of the children’s needs, and not the standard of living desired by the custodial parent. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 641 (Pon. 2003).

Domestic Relations - Child Support
While a divorced party’s ability to help defray the alleged increased child support costs is certainly a valid consideration generally, it does not go to the question of the children’s alleged changed circumstances (i.e., increased needs), which is the primary issue for determination in a support modification proceeding. When the custodial parent was aware in 1993 of these needs, her remedy was to move for modification under 6 F.S.M.C. 1622 at the time when she first had notice. It was not to wait nearly ten years until she had learned that his income had increased and her child support was about to terminate when during this period, he was making all of the court-ordered payments, a factor which the court may legitimately give some attention to in judging the equities as between the parties and their children’s welfare. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 642 (Pon. 2003).

Domestic Relations - Child Support
Under Pohnpei law, both the mother and the father are responsible for their children’s support. The parties’ obligation to support their children is in accordance with their respective abilities. It is sound public policy to require both parents to make some contribution toward the support of their children regardless of income disparity. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 642 (Pon. 2003).

Domestic Relations - Child Support
Even if one divorced party’s income is greater than the other’s, that fact alone does not support a proposed modification to shift all of the pre-motion child-rearing costs retroactively to the higher-income party. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 642 (Pon. 2003).

Domestic Relations - Child Support
The obligation to support the parties’ children is, after all, one that the mother must share with the father, taking into account her ability to contribute. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 643 (Pon.

[FSM Intrm. 633]

2003).

Domestic Relations - Child Support
When under the separation agreement, the father is only obligated to support the parties’ adult children while they are pursuing post secondary education and since a child has re-enrolled in college and the father has now resumed paying her expenses and another has left school, these two do not entitle the mother to any measure of relief. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 643 (Pon. 2003).

Domestic Relations - Child Support
A requested child support order will be denied as redundant when it is already in the parties’ court-approved separation agreement and past history shows that the father has complied with it. Ramp v. Ramp, [2003] FMSC 18; 11 FSM Intrm. 630, 643-44 (Pon. 2003).

* * * *

COURT’S OPINION

MARTIN YINUG, Associate Justice:

The court has pending before it in this divorce action two post-decree motions filed by the respondent, who was formerly known as Erine Yoma Ramp and is now known as Erine Goya ("Goya"). The first is Goya’s motion to reconsider the judgment filed on June 7, 2002, supplemented by a submission filed on August 1, 2002, while the second is her motion to reconsider the support decree filed on August 1, 2002. The parties’ papers are extensive. The court heard oral argument on May 15, 2003. The court and Goya’s counsel, Mary Berman, were present in Pohnpei, while Ramp’s counsel, Craig Reffner, was present telephonically from Chuuk.

For the reasons that follow, both motions are denied.

A. THE MOTION TO RECONSIDER JUDGMENT

The divorce decree was entered in this case more than fourteen and a half years ago on November 18, 1988. The decree was entered after the parties had reached a separation agreement, and the decree incorporates the separation agreement by reference. Goya now "contests the validity of the alimony which was awarded by the FSM Supreme Court pursuant to the Separation Agreement." Motion [] at unnumbered 2 (June 7, 2002). However, Goya does not make any specific alimony request, and both the motion and supplement are directed to the issue of the amount of community property that was awarded to her under the terms of the separation agreement and decree. Goya now asks that the court "reopen this case and to allow further discovery on the issue of the 'marital property’ that should have been divided at the time of the parties’ divorce." Motion [] at unnumbered 6 (June 7, 2002).

Goya moves for relief from the property settlement portion of 1988 divorce decree on the basis of "fraud on the court" under Rule 60(b).^[1] That rule excepts that species of fraud from the one year limitations period that applies to ordinary fraud under Rule 60(b)(3). Goya contends that Ramp, who is an attorney admitted to practice before this court, committed fraud on the court by not disclosing

[FSM Intrm. 634]

in his responses to Goya’s discovery requests the existence of an unliquidated contingency fee for legal services in the case Talensru v. Kosrae et al., FSM Civil Action 1987-2001 ("Talensru"). Request for production 13 sought financial statements reflecting "assets," while interrogatories 14(b) and (c) asked for a listing of "assets" and "accounts receivable." Goya asserts that the fee was marital property, and that she is now entitled to a portion of that fee. She also claims that she did not have the assistance of independent counsel when she signed the separation agreement.^[2]

In her supplement to the motion, Goya also contends that Ramp "conspired to, and did transfer temporarily and free of cost, a one-half interest in a Hawaii condominium to his then-law partner, in order to hide some assets from Erine Ramp in the 1987 Separation Agreement that she signed." Supplement [] at 1 (Aug. 1, 2002). She further asserts in her supplement that Ramp perpetrated a further fraud on the court by showing on a statement of assets attached to the separation agreement that certain Pohnpei real property belonged to both parties.

In response, Ramp contends that he did not list the Talensru fee in response to Goya’s discovery because the fee was "purely speculative" at the time of the divorce decree, and was not paid until March of 1992. He asserts that such a fee, under generally accepted accounting principles, is not marital property, and that this is the reason why he did not disclose the fee in response to the discovery requests. He also asserts that he fully disclosed the condominium interest, and also correctly listed the Pohnpei real estate as marital property since the parcels - one of which he acquired in exchange for legal services while the other two he purchased - were acquired during marriage with title to be held by family members.

Two preliminary points bear discussion. First, to provide context, Goya proceeds on the assumption that the contingent fee in question, which was unliquidated at the time of the divorce and remained so for over three and a half years after entry of the decree - until March of 1992 - is marital property. Courts in the FSM have not had occasion to address this question, but in the United States, the courts are divided on whether an attorney’s unliquidated contingency fee constitutes marital property. Charles W. Davis, Annotation, Divorce and Separation: Attorney’s Contingent Fee Contracts as Marital Property Subject to Distribution, 44 A.L.R.5TH 671, § 3 at 677 (collecting cwherewhere the fee subject is held subject to distribution), and § 4 at 679 (collecting caserewhere the fee was not su to distribution) (1996). Where such fees have been found to be subject to division, they they have been divided based on the amountime devoted to the case before and after separation. SeSee, e.g., In re Marriage of Estes, 929 P.2d 500, 503 (Wash. Ct. App. 1997).

[FSM Intrm. 635]

Second, and as Ramp notes, Goya has not filed an independent action alleging fraud on the court, but rather has filed a motion to this effect in the 1988 divorce proceeding. There is authority that since Rule 60(b) places a one-year limitation on motions based on fraud under subsection (3), Goya may not proceed by motion - her motion is based on allegations of fraud that occurred nearly 14 years ago - but must file an independent action to challenge the alleged fraud. Dowdy v. Hawfield, [1950] USCADC 374; 189 F.2d 637, 638 (D.C. Cir. 1951) (holding that based on the alleged fraud, "[t]he appellant could not have filed a motion to vacate the final judgment as it would be barred by the one year limitation in Rule 60(b)"), cert. denied, 342 U.S. 830, 72 S. Ct. 54, 96 L. Ed. 628 (1951). However, there is also authority "supporting the contrary view, namely, that the provision referring to 'fraud upon the court’ was originally drafted so that the phrase 'to set aside a judgment for fraud upon the court’ modified the phrase 'the power of a court’ rather than modifying the phrase 'an independent action.’" Sheldon R. Shapiro, Annotation, Construction and Application of Provision of Rule 60(b) of Federal Rules of Civil Procedure that Rule does not Limit Power of Federal District Court to Set Aside Judgment for "Fraud Upon the Court", 19 A.L.R. FED. 761, 768 n.7 (1974) (citing James Wm. Moore & Elizabeth B.A. Rodgers, Federal Relief from Civil Judgments, 55 YALE L.J. 623, 691-93 (1946)). Notwithstanding these concerns, the court will regard substance over form, and will consider the merits of Goya’s contentions based on Goya’s fraud on the court contentions without regard to the manner - i.e., by motion and not by an independent action - in which the allegations are presented.

The court now turns to the substantive fraud allegations.

1. The nondisclosure of the contingency fee

Goya’s first contention is that Ramp perpetrated a fraud on the court when he failed to disclose in the course of discovery proceedings the existence of the contingency fee agreement.

FSM Civ. R. 60(b) provides in pertinent part as follows:

On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: . . . raud her here heretofore fore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party . .㼠. The motionl be l be within a reasonable time, and for reasons (1), (2), (2), an), and (3) not more than one year after the judgment, order, or proceedingentered or taken. . . .&#1This does noes noes nots not limit the power or a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

Rule 60(b) draws a distinction between "fraud," which is subject to a one-year limitation, and "fraud upon the court," which is not subject to such a limitation. These are two distinct types of fraud, since any other conclusion would render nugatory the one-year limitations period that is placed on "ordinary" fraud under Rule 60(b)(3). Kupferman v. Consolidated Research & Mfg. Corp., [1972] USCA2 264; 459 F.2d 1072, 1078 (2d Cir. 1972). In this respect, courts discussing fraud on the court under Rule 60(b)

usually rely on the distinction between "intrinsic" and "extrinsic" fraud. Although the Rule 60(b)(3) motion [which is subject to the one-year limitation] provides relief for both "intrinsic" and "extrinsic" fraud, relief will be granted in an independent action only for fraud that is extrinsic, "that is, fraud that actually prevented an issue from being joined or a party from making a valid claim or defense." An example of extrinsic fraud, a fraud that does not involve the issues litigated or the evidence introduced at trial, is when an

[FSM Intrm. 636]

attorney conspires with an opponent to the detriment of the client. This fraud, although totally outside the issues and evidence litigated, clearly prevents a party from fully and fairly presenting his or her case.

12 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 60.81[1][b(3d ed. 1999) (em) (emphasis in original) (footnotes omitted). Prof. Moore suggests that the better way to analyze these cases t by attempting to draw an intrinsic/extrinsic fraud distinction, but rather by analyzing ting the cases in terms of res judicata, which is closely related to the notion of intrinsic fraud, but distinct from it. Id. § 60.81[1][b][iv]. Under tpps approach, the emphasis is on the fact that the adversary process is designed to ferret out perjured testimony and the like, hat if a party does not litigate vigorously and effectively to accomplish this, then he muse must live with the result. Thus,

the advantage of focusing the inquiry on what the party seeking relief should have accomplished at the earlier trial serves all the purposes of the "intrinsic" versus "extrinsic" fraud distinction. It protect [sic] the sanctity of final judgments from those who did not adequately litigate the issues the first time around.

Id. § 60.81[1][b][iv]. , after ater all, the preservation of the sanctity of judgments and the certainty that this is meant to provide in the lives of ants, irrespective of whether they win or lose, that is the rationale for the heightened shed showing necessary after one year has elapsed from the time of the entry of judgment.

As to the kind of conduct that generally constitutes fraud on the court, "a finding of fraud on the court is justified only by the most egregious misconduct directed to the court itself, such as bribery of a judge or jury or fabrication of evidence by counsel, and must be supported by clear, unequivocal and convincing evidence." Pfizer, Inc. v. International Rectifier Corp., [1976] USCA8 314; 538 F.2d 180, 195 (8th Cir. 1976) (citations omitted), cert. denied, 429 U.S 1040, 97 S. Ct. 738, 50 L. Ed. 2d 751 (1977). A case that illustrates this sort of conduct is Hazel-Atlas Glass Co. v. Hartford-Empire Co., [1944] USSC 105; 322 U.S. 238, 64 S. Ct. 997, 88 L. Ed. 1250 (1944). This is a case dating from 1944, and Rule 60(b)’s provision that placed no limitation upon the court’s power to set aside a judgment for fraud on the court dates from after that time: the provision was promulgated on December 27, 1946, and became effective March 19, 1948. Shapiro, supra, 19 A.L.R. FED. at 764. However, the Notes of the Advisory Committee specifically reference the Hazel-Atlas, and Prof. Moore in the 1999 edition of his commentary nevertheless describes Hazel-Atlas as the "leading case" on the question of fraud on the court under Rule 60(b) of the U.S. Federal Rules of Civil Procedure, which is in material part identical to the FSM Rule. 12 MOORE ET AL., supra, § 61][b] (1999).

>

The facts of Hazel-Atlas provide insight into the kind of conduct that constitutes fraud on the court. In 1926, the Hartford-Empire Co. ("Hartford") had ntered "'insurmountable Pate Patent Office opposition’" to its patent application for a method of molding glass. 322 U.S. at 240, 64 S. Ct. at 998, 88 L. Ed. at 1252 (quoting the circuit court without citation). In order to assist matters, Hartford officials and its attorneys arranged to have published in a trade journal an article prepared by them but ostensibly written by a disinterested expert that extolled the virtues of the new process. 322 U.S. at 240, 64 S. Ct. at 998-99, 88 L. Ed. at 1252. After the published article was introduced as part of the record in the pending patent application, the patent was granted in January of 1928. 322 U.S. at 240-41, 64 S. Ct. at 999, 88 L. Ed. at 1253. Later that year, Hartford sued Hazel in district court for patent infringement, but the case was dismissed on the basis that Hartford had not proved infringement. 322 U.S. at 241, 64 S. Ct. at 999, 88 L. Ed. at 1253. Hartford’s attorneys, one of whom had assisted in getting the article published, relied on the article in their appeal brief. Id. The appellate court found the article compelling, quoted extensively from it in its opinion, and in 1932 reversed the district court’s judgment. Id. Thereafter, Hazel paid Hartford a million dollars in licensing fees. 322 U.S. 243, 64 S.

[FSM Intrm. 637]

Ct. at 1000, 88 L. Ed. at 1254. "Indisputable proof" of the facts surrounding the creation of the article did not come to light until 1941, and subsequently Hazel filed suit to obtain relief from the 1932 judgment. Id. The circuit court^[3] denied relief based on the fact that the fraud was not newly discovered, that the spurious article was not the primary basis of the 1932 decision, and that in any event the court lacked the power to grant relief under the then-operative rule that a court could not set aside the decree of the district court after the expiration of the term during which the 1932 decision had been rendered. 322 U.S. 243-244, 64 S. Ct. at 1000, 88 L. Ed. at 1254.

On these facts the U.S. Supreme Court noted that

this is not simply a case of a judgment obtained with the aid of a witness who, on the basis of after-discovered evidence, is believed possibly to have been guilty of perjury. Here, even if we consider nothing but Hartford’s sworn admissions, we find a deliberately planned and carefully executed scheme to defraud not only the Patent Office but the Circuit Court of Appeals.

322 U.S. at 245, 64 S. Ct. at 1001, 88 L. Ed. at 1255. The only way to view the manufactured article, according to the court, was as "a brief in behalf of Hartford, prepared by Hartford’s agents, attorneys, and collaborators." 322 U.S. at 247, 64 S. Ct. at 1002, 88 L. Ed. at 1256. Finding the facts sufficient to justify equitable relief against the fraudulent judgment thus procured, the U.S. Supreme Court reversed the judgment of the district court in Hartford’s favor, and ordered that the original circuit court judgment denying relief to Hartford be reinstated. 322 U.S. at 248, 251, 64 S. Ct. at 1002, 1004, 88 L. Ed. at 1256, 1258.

Turning to the facts of the case at bar, according to Ramp he undertook to represent the Talensru plaintiffs on a contingency fee basis in approximately 1986 while the parties were still married, and thereafter filed suit on February 16, 1989. That suit sought compensation from the United States and others for damages for land erosion that resulted from dredging undertaken by the T.T. Government and the U.S. Army Corps. of Engineers. The original fee was to be one-third of the recovery, if any, with plaintiffs to be responsible for payment of costs. In July, 1988, responses to discovery propounded by Goya in the divorce action, Ramp showed the Talensru matter as an account receivable in the amount of $5,280.73, which was the amount of outstanding costs; he did not disclose the contingency portion of the fee based, as he now asserts, on the fact that under generally accepted accounting principles, an unliquidated fee is neither an asset nor an account receivable. He also claims that at the time he entered into the fee agreement, he did not know if there would be a recovery, or, if there was one, how much it would be. He also asserts that by far the majority of the work was done after the divorce. Later, as settlement approached, the Talensru plaintiffs requested that Ramp reduce his fee. Also, the proposed settlement agreement provided that appropriated funds to restore the eroded areas could not be used for attorney’s fees. Ramp restructured his fee on a hourly basis, and received the fee sometime in 1992. Regardless of how the fee arrangement was to be implemented and the amount of the fee, it is uncontested that Ramp did not disclose the fee’s existence during discovery in the divorce case.

However viewed, the facts of the case at bar are of a different order from the orchestrated machinations of counsel for the purpose of manufacturing evidence that occurred in Hazel-Atlas, and

[FSM Intrm. 638]

that sustained a finding of fraud on the court in that case. At most, Ramp’s conduct amounts to nondisclosure of the fact of the fee agreement, and he asserts that this was done based on generally accepted accounting principles. Nondisclosure is not a basis for seeking relief from an order or judgment based on allegations of fraud on the court. Pfizer, 538 F.2d at 194 (withholding certain memoranda on the mistaken belief that the memoranda were protected as attorney work-product that had never been disclosed outside of Pfizer’s lawyers’ firm held not to constitute fraud on the court); Kupferman, 459 F.2d at 1080-81 (failure to disclose a release by plaintiff in favor of defendant before the end of trial held not be a fraud upon the court sufficient to set aside the judgment against the released defendant where plaintiff’s counsel supposed reasonably but erroneously that the release was known to the opposing party); Israel Aircraft Indus., Ltd. v. Standard Precision, [1977] USCA2 637; 559 F.2d 203, 207-08 (2d Cir. 1977) (apparent concealment until after jury verdict of fact that plaintiffs, who were injured crew members, had executed releases in favor of aircraft owner where defendants had counterclaimed against owner for indemnity and contribution held not to be fraud on the court). Accordingly, Ramp’s failure to disclose the Talensru contingency fee did not constitute fraud on the court under FSM Rule 60(b).

2. The Honolulu condominium issue

Goya asserts that Ramp purchased a condominium in Hawaii during the parties’ marriage, and that he committed fraud upon the court when he transferred a half interest in it to his law partner six weeks before he provided Goya with a list of assets. That listing, which is dated April 1, 1987, is part of the court file as an attachment to the separation agreement that was incorporated by reference in the divorce decree. The transfer was recorded on February 13, 1987. Ex. A to Supplement [] (Aug. 1, 2002).

Ramp claims that the history of the condominium is as follows. Because malpractice insurance was not available in the FSM, Ramp and his then law partner were looking for a substitute vehicle for that coverage. They decided to purchase the Hawaii condominium using partnership funds for the down payment. Subsequent payments on the mortgage, which is dated July of 1986, were also made from partnership funds. According to Ramp, Goya was fully aware of the transaction at the time. The condominium was put in Ramp’s name, and then in November of 1986, Ramp transferred the condominium to himself and his partner. A copy of this transfer instrument was attached to the Ramp’s discovery responses filed with the court in the divorce action in on July 29, 1988. The document was provided in response to request for production 10, which asks for "any and all documents pertaining to real property transactions . . . for the last (5) years."

Goya asserts, however, that when asked in interrogatory 23 whether he had "sold, exchanged or transferred any real property, intere realerty or personal property within the past five (5ve (5) hea) hears," Ramp answered "No." Ramp admits that the answer is wrong, and claims that he does not know why the interrogatory was answered in that way although he offers that "[m]y best guess is that since the condominium was a partnership asset at the time of its purchase, the November 27, 1986 deed was simply carrying out something which had been agreed to prior to the purchase of the condominium." Aff. of Fred Ramp attached as Ex. 1 to Response [] at 4 (Sept. 9, 2002).

G

Goya does not address the fact the she received a copy of the instrument evidencing the property transfer that she now claims Ramp concealed from her. But notwithstanding this omission, and regardless of the fact that Ramp answered interrogatory 23 "no," when the only correct answer was "yes," it remains the case that the July 29, 1988, discovery responses that were served on Goya’s attorney of record and are a part of the court file in this case contain a copy of the document conveying the half interest to Ramp’s partner. Goya cannot now say this transaction was not disclosed to her. At most, the inconsistency between request for production 10 and interrogatory 23 created an issue

[FSM Intrm. 639]

for resolution by further discovery. In light of the document evidencing the property transfer, Ramp’s even patently incorrect answer to interrogatory 23 does not entitle Goya to any mode of relief under the fraud on the court provision of FSM Civil Rule 60(b).

3. The Pohnpei land issue

Goya also contends that Ramp further perpetrated a fraud on the court by the way he listed three pieces of Pohnpei land on the April 1, 1987, listing of the parties assets that is attached to the separation agreement. The listing is titled "Statement of Assets and Liabilities/Erine Y. Ramp & Fredrick L. Ramp/April 1, 1987." She claims that she owns one of these pieces, and that "the other two belonged to Erine’s children [i.e., the parties’ children] and to Erine’s brothers and sisters." Supplement [] at 3 (Aug. 1, 2002). Ramp responds by stating that he purchased one of the parcels in 1987 for two of the parties’ children who were then infants and that he purchased another of the parcels and placed it in the name of Goya and her three sisters. As to the third parcel, Ramp claims that this involved a disputed Navy lease to which Ramp’s father-in-law (Goya’s father) had a claim; and that he successfully litigated the claim in his father-in-law’s favor on the basis that if Ramp prevailed, which he did, the property would be placed in Goya’s name.

Notwithstanding Goya’s title issues, the court is at a loss to understand how the miscategorization of the property, assuming that it was a miscategorization, can be a basis for a fraud on the court claim given the showing necessary under Hazel-Atlas. The statement of the parties’ assets and liabilities was, and is, indubitably a part of the record. The alleged miscategorization was evidently not an issue at the time the parties executed the separation agreement, since the listing is attached to that agreement. More importantly, it was not an issue when the parties stipulated to the entry of the divorce decree that incorporated the separation agreement with the attached asset listing. Thus, Goya’s contention that the listing of the Pohnpei property as part of the parties’ assets constitutes a fraud on the court is devoid of merit.

Accordingly, Goya’s Motion to Reconsider Judgment and her Supplement to Motion to Reconsider Judgment, which she designates as stating separate and distinct grounds for reopening the judgment, are both denied.

B. MOTION TO INCREASE CHILD SUPPORT

Goya filed her motion to increase the amount of child support, styled Motion to Reconsider Support Decree, on August 1, 2002. Section 1622 of Title 6 of the FSM Code provides in pertinent part that "[a]ny decree as to custody or support of minor children or of [sic] the parties shall be subject to revision by the court at any time upon motion of either party." Thus, the court has on-going jurisdiction to reconsider the question of child support as decided by the November 18, 1988 decree.

Goya and Ramp have four children, the youngest of whom, Mary Jeannette, reached her eighteenth birthday on January 13, 2003. Their second youngest child, Eliter, reached her eighteenth birthday on March 4, 2000. The November 18, 1988, divorce decree, incorporates by reference the parties’ separation agreement. That agreement provides that the parties shall have joint custody of their children with each party to maintain physical custody approximately fifty percent of the time. The decree further provides that Ramp will provide child support in the amount of $500 per month per child while they reside with Goya in the United States.^[4] Practically speaking this has meant Hawaii, since

[FSM Intrm. 640]

that is where the children have lived when staying with their mother. Ramp has paid all of the child support required under the decree. The separation agreement also provides that Ramp will support his children who pursue post secondary education and remain in good standing at such an institution in "an amount at least equal to the child support payment pursuant to this agreement until the date of his or her termination of studies, or his or her twenty-third birthday, whichever occurs first." Separation Agreement 20.

Goya moved for a modification of child support five and a half months before the last child, Mary Jeanette, reached 18, and nearly fourteen years after the decree awarding child support was entered. Her reasons for doing so are the "dramatically changed financial circumstances of Fred Ramp since the 1988 decree, and . . . thatly ased csed costs tots to Erine Ramp of supporting the Ramp children in Hawaii." Motion [] at 2 (Aug. 1, 2002). She seeks reimbursement for these costs retive t3, or nearly ten years before she filed her motiomotion. An. At 8 of the affidavit attato h to her motion she urges that "in fact the cost of keeping each child in Hawaii was an average of $750 per child from 1993 to July 2000, and this increased 76 per child from July 2000 to July 2002." The per child pild per month child support amount under the decree is $500. Beyond her averments in her affidavit, she provides no documentation to support these calculations regarding expenses that were incurred at the earliest nearly ten years ago.^[5] Goya alleges that the difference between the support paid to her and the actual cost of raising the children from 1993 to the time of filing the motion is $63,548.00, and she now seeks this amount from Ramp. Goya appears to view the $63,548.00 as increased spousal support: she urges that she "seeks further spousal support to reflect the heavy financial sacrifices she made and continues to make to support the Ramp children while Fred Ramp refused to increase his support" and that "[t]he reason that increased spousal support is sought here, is because [Goya] spent far beyond her means to support the Ramp children." Motion [] at 2, 6 (Aug. 1, 2002). At the same time she "requests $63,548.00 in support to compensate and reimburse her for the actual cost of raising the Ramp children." Id. at 7. Goya asserts that as a result of the increased costs of child rearing in Hawaii, none of the parties’ children has been able to complete college. Ramp strenuously resists this last contention, and urges that the failure to complete college was the result of their

[FSM Intrm. 641]

children’s personal choices, and not any reluctance on his part to pay for college costs. In any event, regardless of how styled, Goya’s claim is a claim for retroactive child support.

1. Retroactive modification of the support decree

Because a divorce case involves the status or condition of the parties and their relationship to others, the law to be applied is that of the domicile. Youngstrom v. Youngstrom, [1992] FMSC 13; 5 FSM Intrm. 335, 337 (Pon. 1992). Goya, a Pohnpeian, resides in Hawaii, while Ramp, an American citizen, resides in Pohnpei. The parties lived in Pohnpei during the marriage. Thus the court applies Pohnpei substantive law in the case at bar. That said, this court has not previously addressed the question of a retroactive modification of a child support order. In the context of confirmation of a customary divorce, this court has awarded reimbursement for child support expenses where the father made no support payments, even when part of the reimbursement is sought for a period when no pendente lite order requiring support payments was in effect. Youngstrom v. Youngstrom, [1993] FMSC 54; 6 FSM Intrm. 304, 305-06 (Pon. 1993), aff’d[1995] FMSC 9; , 7 FSM Intrm. 34 (App. 1995). However, Youngstrom does not provide guidance here, since the decree did not in this case confirm a customary divorce. Also unlike Youngstrom, it is uncontested here that Ramp has always made the child support payments ordered by the November 18, 1988, decree. It is the child support provisions of that decree that Goya now seeks to modify. Under these circumstances, and while bearing in mind the suitability to the FSM of any specific common law principle, the court may look to the Restatements (compilations of U.S. common law according to subject matter) and decisions from jurisdictions outside the FSM that also follow the common law tradition in determining Pohnpei law in the case at bar. Senda v. Semes, [1998] FMSC 34; 8 FSM Intrm. 484, 495 (Pon. 1998).
Court ordered child support payments may be modified at any time circumstances render such a change appropriate, but the modification operates prospectively only. Brady v. Brady, 592 P.2d 865, 869 (Kan. 1979). Child support cannot be modified retroactively. Westbury v. Reynolds, 653 P.2d 379, 381 (Ariz. Ct. App. 1982). This is consistent with the equitable principle, suitable for Micronesia or elsewhere, that one having a claim should pursue it when he or she first has notice of it. The earliest time for which Goya now seeks an increase is 1993, or nearly ten years prior to the time she filed her motion for a child support increase in August of 2002. Since the court may only consider a prospective increase, the court denies the request for an increase from the date of the filing of the motion until Mary Jeanette reached eighteen in January of 2003.

But even if the court were to consider this question, the court would deny the request for retroactive support prior to the filing of the motion. Problematic is the fact that Goya waited approximately ten years after her alleged costs of child-rearing first increased before moving for a modification. She claims that she waited so long because she had no way of knowing that Ramp’s income had increased until she discovered a 2000 rental application for an apartment for one of the parties’ children which she claims shows that as of that date Ramp’s income was more than ten times what it was at the time of the divorce decree. She does not say when she discovered this document. Ramp admits that his income has increased, but states that it is nowhere near what Goya alleges.

Section 1622 of Title 6 of the FSM Code provides that a child support decree "may be subject to revision by the court at any time." A party seeking modification of child support must show a substantial change in circumstances not anticipated by the original decree in order to justify the modification. In re Marriage of Maurer, 619 P.2d 964, 966 (Or. Ct. App. 1980); Ostler v. Ostler, 789 P.2d 713, 715 (Utah Ct. App. 1990). For determination on a request to modify child support is the question of the needs of the children, and not the standard of living desired by the custodial parent. Harrington v. Harrington, 660 P.2d 356, 360 (Wyo. 1983) (holding that a party was not entitled to modification of the divorce decree where her "entire case" was based on the fact that former spouse’s

[FSM Intrm. 642]

income increased after entry of the decree). According to Goya, the needs of the children changed ten years ago, when her child-rearing costs exceeded the support amount. While she claims she waited until she learned of Ramp’s increased income to move for modification, this goes to his ability to help defray the alleged increased costs, which is certainly a valid consideration generally, id. at 360, but not to the question of the children’s alleged changed circumstances (i.e., increased needs) of which she was aware in 1993, and which is the primary issue for determination in a support modification proceeding. Her remedy was to move for modification under 6 F.S.M.C. 1622 at the time when she first had notice of the increase. It was not to wait nearly ten years until she had learned that Ramp’s income had increased and her child support was about to terminate. During this period, Ramp was making all of the payments ordered by the court, a factor which the court may "legitimately give some attention to in judging the equities as between [the parties] and the welfare of their children." Owen v. Owen, 579 P.2d 911, 913 (Utah 1978).

Moreover, Goya seeks to recover from Ramp all of the costs of supporting the parties’ children from 1993 until the present. The divorce decree provides for joint custody and provides that Ramp will pay Goya child support while the children are in her custody. It does not require Goya to pay Ramp child support while they are in his custody. But the court does not read the decree’s silence on this point to confer on Goya the expectation that while the children were in her physical custody, she would not have to spend anything toward their support. Under the law of Pohnpei, both the mother and the father are responsible for the support of their children. Youngstrom, 6 FSM Intrm. at 306; see also In re Marriage of Rice, 652 P.2d 877, 879 (Or. Ct. App. 1982); In re Marriage of Peters, 651 P.2d 262, 264 (Wash. Ct. App. 1982); Harrington, 660 P.2d at 361 (Wyo. 1983). The obligation of the parties to support their children is in accordance with their respective abilities. In re Marriage of Koppelman, 205 Cal. Rptr. 629, 633 (Ct. App. 1984); Fee v. Fee, 496 A.2d 793, 796 (Pa. Super. 1985). It is sound public policy to require both parents to make some contribution toward the support of their children regardless of income disparity. In re Marriage of Westby, 567 P.2d 145, 146 (Or. Ct. App. 1977). While Ramp contends that he has funded training for Goya both as a beautician and a date entry operator, Goya asserts that she is now "working at a minimum-wage job as a clerk and food-handler at a tourist road-side place, to help meet expenses." Aff. attached to Reply [] at 11 (Oct. 9, 2002). Assuming that Ramp’s income is greater than Goya’s, that fact alone does not support a proposed modification where Goya proposeshift all of the pre-motion child-rearing costs retroactively to Ramp.

2. PrProspective modification of the support decree

The court will, however, consider a request for a child support increase from the date of the filing of the motion until the parties’ youngest child, Mary Jeanette, reached eighteen in January of this year. The total amount claimed for this period by Goya’s calculations would be $2068: 1 child X ($876 - $500)^[6] X 5.5 months = $2068.

The court is not persuaded that a child support increase for the five and a half month period from August, 2002, until January of 2003, is warranted. Ramp urges that in addition to the child support required under the divorce decree, he has made substantial additional payments directly to the three older children for their support or higher education purposes. He claims that this sum is more than he can document, but includes providing apartments, cars, and college tuition. In his September 9, 2002, Response [], he provides accounting worksheets (exhibits "I", "J", and "K") to show that this amount, since January 1, 1997, is approximately $156,000. In his November 18, 2002, Response [], he provides considerable additional documentation, including canceled checks, to substantiate the direct

[FSM Intrm. 643]

payments that he made in addition to the support payments required under the decree. He emphasizes that the records do not include cash payments directly to the children. For Antony, for the period December of 1993 to April of 2001, (records, according to Ramp, are missing for part of 1994, half of 1995, and all of 1996 for unknown reasons) this sum is $68,006.88. Response [], Ex. "B2" (Nov. 18, 2002). For Jennifer, for the period January 1994 through July of 2002, the amount is $51,791.424, plus $9,424.00 for renovation costs for a house to be used to generate rental income for Jennifer and her husband. Id. Exs. "B3," "B4." For Eliter, for the period January, 1995, through October, 2002, this sum is $67,161.78. Id. Ex. "B5." According to Ramp, for Eliter the records begin when she was thirteen to show that he paid for extraordinary expenses, including private school tuition, as well. The record for Eliter also includes the record of the child support directly to Goya for the first six months of 2000 to show that he continued to make those payments even after Eliter reached eighteen (March 4, 2000), up until she graduated from high school. Thus, for Eliter, $1,500 of the $67,161.78 figure represents child support required under the decree.

The bulk of the foregoing expenditures were made under 20 of the separatireement, ent, which requires support of the children while they pursue higher education or until they reach the age of 23, whichever occurs first; and to that e, Ramp has only done what he was committed to do under the the terms of the separation agreement. Other expenditures were for non-higher-education related support payments, and to this extent Ramp has exceeded his obligations under the separation agreement. Ramp also maintains that he will assist the parties’ youngest daughter Mary Jeanette in her future endeavors in the same way he has supported his other children. Taking into account the parties’ unequal earning power but disregarding the evidentiary issues associated with Goya’s claim of increased costs, the magnitude of Ramp’s documented expenditures in addition to the support payments required under the decree more than offsets any child rearing expenses beyond $500 a month that Goya may have borne for Mary Jeanette for the five and a half month period from August of 2002 through January of 2003. The obligation to support the parties’ children is, after all, one that Goya must share with Ramp, Youngstrom, 6 FSM Intrm. at 306, taking into account her ability to contribute. Koppelman, 205 Cal. Rptr. at 637; Fee, 496 A.2d at 796. The request as to a child support increase for the five and a half month period from August of 2002 through January, 13, 2003, when Mary Jeanette reached 18, is accordingly denied.

3. Other issues

Goya makes other contentions as well. She asserts that the parties’ 26-year-old son is unemployed and living with her and her present husband in Goya’s home; that he has been borrowing money from her; and that he does not pay the costs that she incurs in keeping him. Ramp contends that Antony voluntarily cut himself off from Ramp’s support in April of 2001 after he left school and was supporting himself. She also urges that Eliter "had to drop her college classes, in order to keep her grade point average from dropping," Reply [] at unnumbered 3 (Oct. 9, 2002), and that "[a]s a result, or perhaps in retaliation for Erine’s attempts to open this case," Ramp did not pay one month’s rent on Eliter’s apartment, which Goya and her husband then had to pay. Id. Ramp counters that when he became aware that Eliter had withdrawn from college, he advised her that the rent payment for June of 2002, would be the last he would make. Under the separation agreement, Ramp is only obligated to support the parties’ adult children while they are pursuing post secondary education. Subsequently, Eliter has re-enrolled in college, and Ramp asserts that he has now resumed paying her expenses. In any event, neither of these two contentions regarding Antony or Eliter entitle Goya to any measure of relief under 6 F.S.M.C. 1622.

Goya asserts that "[a]n order continuing support until Mary finishes college or for her education, through the age of 23, would also be proper, based on the parties’ Separation Agreement." In light of the requirements of 20 of the separation agreement, as well as Ramp’s past history in meeting the

[FSM Intrm. 644]

higher educational needs of the three older children, such an would be redundant. The request is therefore denied.

In conclusion, Ramp urges that "I have supported my children generously, perhaps to a fault." Aff. of Fredrick Ramp attached as Ex. 1 to Response [] at 22 (Sept. 9, 2002). Bas thon the record before it, the court cannot discern that Goya has a basis for challenging the veracity of this statement.

Accordingly, Goya’s Motion to Reconsider Support Decree is denied.

The >The parties will bear their own attorney’s fees.

* * * *

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^[1] Section 1622 of Title 6 of the FSM Code provides that "[a]ny decree as to custody or support of minor children of the parties shall be subject to revision by the court at any time." Thus, as opposed to custody and support matters, the section does not provide for continuing jurisdiction over property issues.
^[2] Goya states in both her motion and her supplement that she was not represented by counsel at the time that she entered into the separation agreement. The court disposes of this issue here.
Both Goya’s answer and amended answer to the divorce petition were filed by Dana Smith, a Honolulu attorney. A November 15, 1988, minute entry Ä the decree was entered three days later on November 18th Ä refers to Mr. Smith as "respondent’s counsel." Ramp also states that Goya’s counsel served "exhaustive" discovery requests on Ramp, although it was not filed. Ramp’s answers were filed. Goya signed the separation agreement on October 16, 1987, or more than a year before the decree, and Ramp claims that attorney Roberta Lindberg, who was then working as an attorney for Micronesian Legal Services Corporation in Pohnpei, negotiated various portions of the separation agreement on Goya’s behalf. In any event, the decree, which incorporates the separation agreement by reference, provides by its terms that it was entered pursuant to the parties’ stipulation.

But assuming all of this is now to be discounted, Goya does not state why this contention would entitle her to Rule 60(b) relief so as to set aside the property settlement aspect of a decree that was entered nearly fourteen years ago in this civil action. Her claim for relief is brought specifically under Rule 60(b)’s fraud on the court exception. Accordingly, the question of Goya’s representation or lack of it is not germane for purposes of Goya’s requested Rule 60(b) relief.

^[3] Hazel filed in the circuit court a petition for leave to file a bill of review in the district court, but this was denied on the basis that any fraud had been perpetrated on the circuit court, and that that court should decide whether the mandate directed to the district court should be recalled. Leave was then granted to Hazel to seek relief in the circuit court. 322 U.S. at 253, 64 S. Ct. at 1005, 88 L. Ed. at 1259.

^[4] As Ramp points out in his Response [] at 3 (Nov. 18, 2002), the decree modifies the separation agreement in one respect: the agreement provides that the monthly support per child will be $250 a month, while the decree provides for $500 per month per child. The decree provides that in the event that the two documents are inconsistent, the decree governs. Decree of Divorce at B (Nov. 18, 1988). Athe dehe decree provides that the $500 amount obtains while Goya is in the United States, whereas the monthly amount is $300 a month when Goya is residing in th. Id. E(1). The rt amount is to s to b to be a maximum $1000 for all children in the physical custody of Goya, unless they "agree in writing that Respondent [Goya] shall have physical custody of more than two of their children at a particular time in which case child support shall be the appropriate monthly child support payment times the number of children in the physical custody of Respondent." Id. Evidently, this occurred because Ramp recites, and Goya does not contest, that his "previous[]" payments to Goya were $2000 a month, but is now only $500 for the support of the youngest child, Mary Jeanette. Ramp’s Response [] at 25 (Sept. 9, 2002).
^[5] A specific evidentiary issue exists with respect to how Goya calculates her housing expense, which is the largest single expense claimed. She estimates that for the eight year period from 1993 through 2000, this amounted to $292 per month per child, while from July of 2000 to July of 2002, this figure was $350 per month per child. She arrives at this figure by prorating what a partially furnished house would rent for and dividing it by five. But according to Ramp, Goya now lives with her present husband and the two children that she has with him, which totals four people. At one time the parties’ four children were living with Goya. Thus the proration basis is not apparent.

Also, although Goya uses a hypothetical rental as the basis for the housing cost calculation, she is making a monthly mortgage payment of $1,759.00. At least as to principal reduction, Goya’s housing expense for her children is a capital expenditure resulting, in the event that property values remain stable or increase, in equity accumulation.

^[6] I.e., the alleged actual monthly cost of $876 minus the support of $500 per month.