Narruhn v Aisek [2009] FMSC 48; 16 FSM Intrm. 236 (App. 2009) (5 January 2009)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. C!-2005

ALEX NARRUHN, ATENY INCHING, and ANNA REYES,
Appellants,

vs.

GRADVIN AISEK,
Appellee.

_________________________________

OPINION

Argued: September 2, 2008
Decided: January 5, 2009

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Ready E. Johnny, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Appellants: Steven V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

[16 FSM Intrm 237]

For the Appellee: Fredrick L. Ramp, Esq.
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appellate Review  Standard of Review  Civil Cases
For an appellate court to find that a trial court's factual finding is in error, it must determine that the finding was clearly erroneous. A trial court's finding will only be set aside if there is no credible evidence in the record to support that finding, in part because the trial court had the opportunity to view the witnesses and the manner of their testimony. If, upon viewing all the evidence in the record, the appellate court is left with the definite and firm conviction that a mistake has been made, it may then conclude that the trial court's finding was clearly erroneous, but it cannot substitute its judgment for that of the trial court. Narruhn v. Aisek, [2009] FMSC 48; 16 FSM Intrm. 236, 239 (App. 2009).

Appellate Review  Standard of Review  Civil Cases
The test as to the adequacy of trial court findings is whether they are sufficiently comprehensive and pertinent to the issue to form the basis of the decision. Narruhn v. Aisek, [2009] FMSC 48; 16 FSM Intrm. 236, 239 (App. 2009).

Appellate Review  Standard of Review  Civil Cases
An appellate court cannot say that the trial court's finding was clearly erroneous when it was the result of weighing conflicting evidence. When the trial judge believed one witness's testimony and not another's, and gave an extensive analysis of the testimony before him that led him to that conclusion, there is no reason for the appellate court to disturb his conclusion since it was supported by credible evidence and he had the opportunity to observe the witnesses and the manner of their testimony and the appellate court did not have that opportunity. Narruhn v. Aisek, [2009] FMSC 48; 16 FSM Intrm. 236, 239 (App. 2009).

Appellate Review  Standard of Review  Civil Cases
Issues of law are reviewed de novo on appeal. Narruhn v. Aisek, [2009] FMSC 48; 16 FSM Intrm. 236, 239 (App. 2009).

Custom and Tradition; Evidence  Burden of Proof
Parties who proffer custom as a basis for a claim must prove the relevant custom by a preponderance of the evidence. Narruhn v. Aisek, [2009] FMSC 48; 16 FSM Intrm. 236, 240 (App. 2009).

Custom and Tradition  Chuuk
A traditional gift of nechop is a Chuukese custom through which someone gives property to another in gratitude for care giving. Narruhn v. Aisek, [2009] FMSC 48; 16 FSM Intrm. 236, 240 (App. 2009).

Appellate Review  Standard of Review  Civil Cases; Evidence  Witnesses
Although an argument that it is not logical that one outsider of the clan would know about the history of a nechop land transfer when no testifying clan member had knowledge of the nechop and that for this reason the testimony is not credible, may affect credibility, the court cannot say that the trial court abused its discretion in accepting and relying upon the testimony when the witness could have attained this knowledge from his wife's uncle. Narruhn v. Aisek, [2009] FMSC 48; 16 FSM Intrm. 236, 241 (App. 2009).

[16 FSM Intrm 238]

Appellate Review  Standard of Review  Civil Cases; Evidence  Witnesses
Although the appellants may consider the timing of a witness's rebuttal testimony to be problematic, when the witness's testimony is not contradictory to his testimony before rebuttal and when the trial court's findings are supported by other testimony, the finding will not be set aside based on an alleged inconsistency between the witness's direct and later rebuttal testimony. Narruhn v. Aisek, [2009] FMSC 48; 16 FSM Intrm. 236, 241 (App. 2009).

Property  Deeds
When credible evidence in the record more clearly supported the conclusion that Naau, Fonomu, and Ipis were three separate and distinct parcels of land, a 1910 German administration deed indicating the ownership of Naau was not germane since it did not involve the disputed island, Fonomu. Narruhn v. Aisek, [2009] FMSC 48; 16 FSM Intrm. 236, 241 (App. 2009).

Evidence; Property
An agreement granting fishing rights is not alone conclusive evidence of land ownership. Narruhn v. Aisek, [2009] FMSC 48; 16 FSM Intrm. 236, 241-42 (App. 2009).

Appellate Review  Standard of Review  Civil Cases
The FSM Supreme Court may affirm judgments of lower courts for reasons other than those employed by the lower court. Narruhn v. Aisek, [2009] FMSC 48; 16 FSM Intrm. 236, 242 (App. 2009).

Appellate Review  Standard of Review  Civil Cases
When, given the trial court's wide discretion in weighing the credibility of evidence, there is credible evidence to support the trial court's findings, the appellate court will reject argument that the trial court's legal conclusions were erroneous because the trial court's factual findings are not supported by credible evidence. Narruhn v. Aisek, [2009] FMSC 48; 16 FSM Intrm. 236, 242 (App. 2009).

Constitutional Law  Judicial Guidance Clause
Decisions of the FSM Supreme Court must be consistent with Micronesian customs and traditions. Narruhn v. Aisek, [2009] FMSC 48; 16 FSM Intrm. 236, 242 (App. 2009).

Custom and Tradition  Chuuk; Evidence  Burden of Proof
When the testimony on nechop is sufficient to establish that it existed as a custom and that, when employed, it operated to disrupt the status quo of matrilineal descent, the trial court did not ignore the established custom of Chuukese matrilineal descent in accepting that a nechop took place since it was proven by a preponderance of the evidence that the nechop took place. Narruhn v. Aisek, [2009] FMSC 48; 16 FSM Intrm. 236, 242 (App. 2009).

Custom and Tradition
There is a general deference to local officials' knowledge of local customs. Narruhn v. Aisek, [2009] FMSC 48; 16 FSM Intrm. 236, 242 (App. 2009).

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COURT'S OPINION

READY E. JOHNNY, Associate Justice:

On September 7, 1999, in the Chuuk State Supreme Court Trial Division, Gradvin Aisek filed a complaint for injunctive and declaratory relief. The complaint sought to ban Alex Narruhn, Ateny Inichi and Anna Reyes from entering the island of Fonomu as well a declaration of ownership of Fonomu. On

[16 FSM Intrm 239]

October 4, 2000, after trial, the Trial Division entered judgment in favor of Aisek and against Appellants, determining that Aisek owned the island of Fonomu after purchasing it from its previous owners, the Fesilim clan. This judgment was appealed to the Chuuk State Supreme Court Appellate Division, which affirmed Aisek's ownership of Fonomu on December 28, 2004.[1]

Appellants now seek this Court's review of the Chuuk State Supreme Court Appellate Division's December 28, 2004 decision. This appeal is brought pursuant to Chuuk State Law No. 190-08, § 39, which provides foappealppeal of any final decision of the Chuuk State Supreme Court Appellate Division by way of petition for writ of certiorari to the FSM Supreme Court, and FSellate Rule 4(a)(1)(A), which provides for an appeal to theo the FSM Supreme Court Appellate Division of a decision of the Chuuk State Supreme Court Appellate Division. This Court granted Appellants' petition for writ of certiorari on July 30, 2007. Oral argument was held in Chuuk on September 2, 2008, at which all parties were represented by counsel.

For the following reasons, we affirm the decision of the Chuuk State Supreme Court Appellate Division.

I. ISSUES ON APPEAL

A. Are the trial court's factual findings clearly erroneous?

B. Are the trial court's legal conclusions erroneous?

C. Was the trial court's judgment supported by custom and tradition?

II. STANDARD OF REVIEW

For an appellate court to find that a trial court's factual finding is in error it must determine that the finding was clearly erroneous. The trial court's finding will only be set aside if there is no credible evidence in the record to support that finding, in part because the trial court had the opportunity to view the witnesses and the manner of their testimony. If, upon viewing all the evidence in the record, the appellate court is left with the definite and firm conviction that a mistake has been made, it may then conclude that the trial court's finding was clearly erroneous, but it cannot substitute its judgment for that of the trial court. Livaie v. Weilbacher, [2005] FMSC 19; 13 FSM Intrm. 139, 143 (App. 2005). The test as to the adequacy of the findings is whether they are sufficiently comprehensive and pertinent to the issue to form the basis of the decision. Tulensru v. Wakuk, [2001] FMSC 48; 10 FSM Intrm. 128, 133 (App. 2001).

An appellate court cannot say that the trial court's finding was clearly erroneous when it was the result of weighing conflicting evidence. Worswick v. FSM Telecomm. Corp., [2000] FMSC 14; 9 FSM Intrm. 460, 464 (App. 2000). When the trial judge believed one witness' testimony and not another's, and gave an extensive analysis of the testimony before him that led him to that conclusion, there is no reason for the appellate court to disturb his conclusion, since it was supported by credible evidence and he had the opportunity to observe the witnesses and the manner of their testimony, and the appellate court did not have that opportunity. Worswick, 9 FSM Intrm. at 463.

Issues of law are reviewed de novo on appeal. George v. Nena, [2004] FMSC 9; 12 FSM Intrm. 310, 313 (App.

[16 FSM Intrm 240]

2004).

Parties who proffer custom as a basis for a claim must prove the relevant custom by a preponderance of the evidence. Cf. Phoenix of Micronesia, Inc. v. Mauricio, [1999] FMSC 31; 9 FSM Intrm. 155, 158-59 (App. 1999) (ruling that when a defendant in a civil case bases a defense upon a custom that defendant must prove the custom by a preponderance of the evidence).

III. DISCUSSION

This is a land ownership dispute, and one in which the trial court ultimately accepted the factual account of ownership given by one clan, Fesilim, over the account given by another clan, Imwo.

Aisek maintained that Fesilim clan had rightful ownership of Fonomu in May 1999, when he bought the island from the Fesilim clan. Aisek's factual account of how Fonomu came into Fesilim ownership is based upon the traditional gift of Nechop, which is a Chuukese custom through which someone gives property to another in gratitude for care giving. Aisek presented evidence that Nieinang, of Imwo clan, gave Fonomu to her husband, Tinngeni, of Fesilim clan, by way of Nechop. This exchange resulted in Fonomu passing to Fesilim clan by way of Tinngeni as opposed to Imwo clan by way of Nieinang's children.

Appellants are members of Imwo clan,[2] whose factual account of how Fonomu came into their ownership begins with their warrior ancestor Son, who was given Fonomu as a spoil of war. Son then sold Fonomu to Rare, of Fesilim clan, in exchange for a metal box and an agreement that Fonomu would pass to Rare's children, who belonged to Imwo clan by way of their mother and Rare's wife, Niato of Imwo clan. Appellants Inichi and Reyes are Rare's grandchildren.

A. Are the trial court's factual findings clearly erroneous?

1. Testimonial Evidence

Appellants' primary argument is that substantial, credible evidence does not support the trial court's finding that the gift of Nechop was made, thereby giving Fesilim clan ownership of Fonomu up to the time it was sold to Aisek. One person, Erwin Konik, testified during a deposition that the Nechop took place.

On direct examination during Aisek's case-in-chief, the witnesses from Fesilim clan claimed to not know any details about how their lineage came to own Fonomu; the Fesilim witnesses all testified similarly that they simply grew up with the understanding that Fonomu belonged to Fesilim clan. The Nechop was not mentioned by any witness until Konik's deposition was taken almost two months after the bulk of the trial was completed. Subsequent to Konik's deposition, during rebuttal examination, one of the Fesilim witnesses, Tomuo Soram, for the first time testified that he knew Tinngeni was the Fesilim member through whom the clan claimed ownership of Fonomu.

While Konik's deposition was taken after trial for logistical reasons, Appellants had ample notice that Aisek was presenting Konik's deposition testimony as part of his case-in-chief, and they did not object on the record to the deposition's timing. The Court here can review Konik's deposition on the

[16 FSM Intrm 241]

same credibility standards as the trial court, as neither had the opportunity to view the witness while testifying. While Konik is not a member of Fesilim clan lineage, he did marry into Fesilim clan. Konik testified that Fesilim Chief Minik, his wife's uncle, told him about the Nechop between Nieinang and Tinngeni. This is a sensible account of how Konik came to this knowledge, and Appellants are unable to directly discredit Konik. Rather, Appellants argue that it is not logical that one outsider of Fesilim clan would know about this history when no testifying member of the clan had knowledge of the Nechop, and for this reason Konik's testimony is not credible. However, we are unable to agree with Appellants that Konik could not have attained this knowledge from Minik merely because several members of the Fesilim clan who testified at trial did not know about the Nechop. While Appellants' argument may impact credibility, the trial court did not abuse its discretion in accepting and relying upon Konik's testimony.

Appellants were given opportunity to rebut Konik's testimony through the calling of witnesses after the deposition was taken. Appellants offered the rebuttal testimony of Imwo clan member Nancy Sakios, who testified that Nechop is not normally made between husband and wife and that Imwo clan custom would not have permitted Nieinang to transfer Fonomu to her husband and not her children. The trial court was within its discretion to discredit this rebuttal testimony and instead accept the conflicting testimony of Konik. See Worswick, 9 FSM Intrm. at 463.

Appellants also argue that the inconsistency between Tomuo Soram's testimony on direct examination before Konik's deposition and his testimony during rebuttal examination after Konik's deposition indicates that the Nechop evidence is not credible. On direct examination, Soram, along with other relatives, testified that he did not know how Fesilim clan came to own Fonomu; questioning was worded to be seeking what happened as opposed to what member of the clan established ownership. On rebuttal, Soram testified that Fesilim claimed ownership of Fonomu through Tinngeni, but he was clear that he still had no knowledge of the Nechop or how Tinngeni acquired Fonomu. The timing of this testimony may be problematic from Appellants' vantage point, but Soram's testimony is not contradictory. Regardless, the trial court's findings are supported by other testimony, namely Konik and the other Fesilim clan members. George, 12 FSM Intrm. at 317 (when specific evidence is questioned on appeal, the appellate court should not set aside the trial court's findings when there is other credible evidence in the record to support the trial court's findings).

2. Documentary Evidence

Appellants argue that unlike Aisek they have documentary evidence to support their account of ownership. The trial court admitted but then explicitly rejected both pieces of evidence, and Appellants claim this was error.

Appellants presented a 1910 deed from the German administration indicating Rare's ownership of Naau. Appellants claim that in the context of the deed Naau includes Fonomu; there was testimony that Naau, Fonomu and Ipis were sometimes considered together because of their geographical proximity and ownership ties. However, credible evidence in the record more clearly supports the conclusion that these three parcels of land are known separately and are distinct. The trial court accepted this latter position and found that the German document was not germane because it did not involve Fonomu.

The second document is a 1976 agreement with the Japan Marine Fishery Resource Research Center regarding Japanese fishing rights over Fonomu, among other areas, and signed by Neichenuta, mother of Appellants Inichi and Reyes. The trial court discredited this document because it was introduced into evidence in duplicate but was originally made in triplicate, finding that its authenticity and foundation was questionable due to the third copy not being produced. While the missing copy

[16 FSM Intrm 242]

may not be the strongest basis for not relying upon this document, an agreement allowing fishing rights is not alone conclusive evidence of land ownership. The FSM Supreme Court may affirm judgments of lower courts for reasons other than those employed by the lower court. Nankhen of Nett v. United States, [1996] FMSC 9; 7 FSM Intrm. 581, 589 (App. 1996).

Under these circumstances, and given the trial court's wide discretion in weighing the credibility of evidence, there is credible evidence to support the trial court's findings.

B. Are the trial court's legal conclusions erroneous?

Based upon the immediately preceding discussion, we reject Appellants' argument that the trial court's legal conclusions are erroneous because the trial court's factual findings are not supported by credible evidence.

C. Was the trial court's judgment supported by custom and tradition?

Decisions of the FSM Supreme Court must be consistent with Micronesian customs and traditions. Pohnpei v. KSVI No. 3[2001] FMSC 58; , 10 FSM Intrm. 53, 66 (Pon. 2001).

Appellants argue that the trial court ignored the established custom of Chuukese matrilineal descent in accepting that the Nechop took place. However, the testimony on Nechop is sufficient to establish that it existed as a custom and that it operated to disrupt the status quo of matrilineal descent when employed. Aisek proved by a preponderance of the evidence that the Nechop took place.

It is also important here to note the general deference to local officials' knowledge of local customs. In this case, the Chuuk State Supreme Court and its justices are presumed to have clearer knowledge of use, local custom and expectations concerning land and personal property in Chuuk than this Court. See In re Nahnsen, 1 FSM Intrm. 97, 107, 109 (Pon. 1982).

IV. CONCLUSION

While Appellants take issue with the trial court's wholesale adoption of Aisek's narrative versus that of their own, this is precisely the type of decision that trial judges, as fact finders, are tasked with making. Despite conflicting evidence in the record, the trial court's findings are supported by credible evidence. The trial court's legal conclusions are supported by applicable law. The trial court's decision is consistent with local custom and tradition. The trial court's decision is affirmed.

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[2009] FMSC 47; [16 FSM Intrm 243]

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^[1]The trial court also awarded $4,070.00 in damages to Aisek, and this award of money damages was reversed and stricken by the Chuuk State Supreme Court Appellate Division. Narruhn v. Aisek, [2004] FMCSC 3; 13 FSM Intrm. 97 (Chk. S. Ct. App. 2004). However, the money damages are not at issue in this appeal.
^[2]The record is unclear as to whether Narruhn is a member of Imwo clan, but the trial court refused to dismiss him from the proceedings below due to his close familial relationship with the other Appellants (Inichi adopted Narruhn’s daughter) and his ties to their activities on Fonomu.