In the matter of the marriage between Kihleng(1984)

POHNPEI SUPREME COURT REPORTS

VOL. 1

[1 P. S. Ct. R 2]

IN THE MATTER OF THE MARRIAGE BETWEEN

SIMON J. KIHLENG and EMELIANA J. KIHLENG,

Joint Petitioners

Ponape Civil Action No. 5-84

Ponape State Court

March 21, 1984

Joint petition by spouses for the grant of an order of separation. Petition did not state any specific ground for separation, but the evidence showed that petitioners had already bean separated and had been living apart since June 26, 1983. The Ponape State Court, EDWEL H. SANTOS, Chief Justice, held that the parties being husband and wife were separated from each other on June 26,1983, pursuant to recognized Ponapean custom, and granted an order confirming the separation.

1. Domestic Relations - Divorce - Courts - Jurisdiction

Where there is want of ground for divorce, the Court has no jurisdiction to grant such to petitioners. (39 TTC 201.)

2. Domestic Relations - Separation - Custom

Where husband and wife live apart as such for a period of over eight months prior to the filing of their joint petition for separation, such separation is effected under Ponapean custom.

3. Domestic Relations - Judicial Separation

Parties who have separated and are seeking judicial separation of marriage should properly request the Court to confirm the separation of their marriage as being valid pursuant to 39 TTC 5, rather than a decree of judicial separation.

4. Domestic Relations - Judicial Separation - Procedure

Notwithstanding the sophistication and experience of the petitioners in relation to bringing an action for an order of separation to the judicial

[1 P. S. Ct. R 3]

process for resolution, and with that understanding, the Court may apply the customary rule where the objective of the parties will be judiciously and justifiably served thereby, even where minor procedural details are not present.

5. Laws of Ponape - Custom

Customs of Ponape are recognized, and are therefore a constituent part of the laws of this State ( 39 TT C 5 ).

6. Laws of Ponape

Title 39 of the Trust Territory Code is a part of the laws of Ponape State.

7. Personal Law

The status or condition of a person and his relation to other persons are fixed and controlled by the law of his domicile (24 Am Jur. 2d Section 23, Divorce and Separation).

8. Customary Separation

Customary separation is quite similar to that known in the common law as a 'limited divorce' a divorce a mensa et thoro, in that the right of cohabitation of the parties terminates but the marriage remains undissolved.

9. Customary Separation - Purpose

The common purpose for a customary separation is to allow time for the parties involved, their parents, friends, or other concerned parties to try to negotiate or to cause negotiation to take place with the objective of reconciling the parties so that they may be able to re-unite (pwurpene: as the Ponapean term denotes).

10. Courts - Judicial Notice - Customary Separation

The Court, on its own motion, takes judicial notice of the implications and purposes of customary separation between husband and wife.

11. Domestic Relations- Local Custom - Family Law Actions

The Trust Territory Code, now State law, recognizes local custom in family law actions (39 TT C Section 4).

[1 P. S. Ct. R 4]

12. Courts - Domestic Relations - Powers

The Court has power to enter decree confirming "...the annulment, divorce, or adoption effected in accordance with recognized custom" where the "validity thereof is questioned or disputed by anyone in such a manner as to cause serious embarrassment to... the parties" (39 TTC Section 5).

13. Domestic Relations - Persons Customarily Separated - Judicial Separation

Where petition for judicial separation hinges on 39 TTC and by Ponapean custom parties are separated, the granting of a judicial separation is not necessary as confirmation that the parties are separated under Ponapean custom will effect the same result and serve the same objective as the granting of a judicial Separation.

14. Domestic Relations - Separation - Custody and Support of Minor Child Courts - Jurisdiction

Upon a petition for an order of separation of husband and wife, the Court has jurisdiction to order custody and support of the child even if the parties represent to the Court that the child's welfare is not an issue in the action. (39 Section TTC 103).

15. Domestic Relations - Separation - Custody and Support of Minor Child Courts - Duty

The Court has a duty to ensure that the best interest of the child is preserved in relation to his custody and support where the parents are seeking an order of separation.

EDWEL H. SANTOS, Chief Justice

1. This is an action brought by a joint petition of the parties filed on 6 March 1984 requesting the Court "to grant their petition for separation." The petition was brought pursuant to Title 39 of the Trust Territory Code. Jurisdiction is ascertained and the Court proceeded with the hearing on the joint petition on 13

[1 P. S. Ct. R 5]

March 1984, in the Justice's chambers with both petitioners present pro se.

2. The parties swear to their joint petition and state the following as facts:

(a) The parties were joined in marriage on 28 August 1978 at the Catholic Mission Church in Kolonia.

(b) On 26 June 1983, the parties were separated from each other by their own act.

(c) On 1 July 1983, five days later, the parties, using their own words, "discussed and reconsidered their marriage very carefully between themselves and their parents, and have agreed that no reconciliation is likely to occur soon or any time in the future."

3. The petition does not mention any specific ground for separation of the marriage, though there is no State statutory requirement that ground for separation be pleaded, other than the grounds for divorce enumerated under 39 TTC, 201 et seq. Nor does the petition state any expressed consideration for the separation agreement as would be required in some jurisdictions.

4. At the hearing the petitioners informed the Court that a baby boy was born to the petitioners on 31 October 1981, and is under the custody of petitioner Emeliana J. Kihleng. Petitioners further represent to the Court that the welfare of

[1 P. S. Ct. R 6]

the child is not an issue at the moment.

The Court is faced with two basic issues here.

ONE, whether on the basis of the joint petition and the statements represented to the Court by the petitioners, granting a judicial separation of the marriage between the parties is necessary and justified; and

TWO, whether under the circumstances the Court ought to assume jurisdiction over and to provide for the custody and support of the minor child of the parties.

[1] For want of ground for divorce, the Court has no jurisdiction to grant such to the petitioners. 39 TTC, 2001.

[2-7] While the petitioners request that Court "to grant a decree of separation," the petitioners also state in their petition that they had been separated and have been living apart from each other since June 16, 1983, an extended period of over eight months prior to the filing of the their joint petition. This is in effect a separation of the marriage effected under Ponapean custom. The petitioners should properly be requesting the Court to confirm the separation of their marriage as being valid pursuant to 39 TTC 5,

[1 P. S. Ct. R 7]

rather than a decree of judicial separation. Nevertheless, the Court is cognizant of the degree of sophistication and experience of the petitioners in relation to bringing an action of this nature to the judicial process for resolution, and with that understanding, the Court has no hesitation in applying the customary rule where the objective of the parties will be judiciously and justifiably served thereby, even where minor procedural details are not present. Customs of Ponape are recognized, 39 TTC 5, and therefore they are a constituent part of the laws of this State. The status or condition of a person and his relation to other persons are fixed by the law of his domicile. The lex domicilii controls the status of the persons. 24 Am. Jur.2d, Section 23, Divorce and Separation.

[8-10] This customary separation is quite similar to that known in the common law jurisdiction as a "limited divorce', a divorce a mensa et thoro, in that the right of cohabitation of the parties terminates but the marriage remains undissolved. The common purpose of this customary separation is to allow time for the parties involved, their parents, friends, or other concerned parties to try to negotiate or to cause negotiation to take place with the objective of reconciling the parties so that they may be able to

[1 P. S. Ct. R 8]

re-unite (pwur pene: as the Ponapean term denotes). In view of the existence of this custom the Court, on its own motion, takes judicial notice of that fact.

An action for the decree of "separation of marriage" [sic) (Separate Maintenance) under most common law jurisdictions, is to affirm the marriage relations and to enforce the obligations of that relation. Sam v. Sam, 3 T. T. R. 203, at page 205, citing 24Am. Jur. 2d pp 176-178.

[11] Section 4 of Title 39 of the Trust Territory Code, now State law, recognizes local custom in family law actions. This section reads as follows:

"4 . . . .Local custom recognized. Nothing contained in this title, except for the provisions of section 5 of this chapter, shall apply to any annulment, divorce, or adoption effected in accordance with local custom, nor shall any restrictions or limitations be imposed upon the granting of annulments, divorces, or adoptions in accordance with local customs."(Emphasis added.)

[12] Section 5 of the same Title authorizes the Court to enter decree confirming"... the annulment, divorce, or adoption effected in accordance with recognized custom" where the "validity thereof is questioned or disputed by anyone in such a manner as to cause serious embarrassment to... the parties. . ."

[1 P. S. Ct. R 9]

[13] While the petition is hinged upon Title 39 of the Trust Territory Code which is now considered as part of the Ponape State law as explained earlier, and while the said Title recognizes Ponapean custom in relation to family law actions, the Court holds that the parties were separated under Ponapean custom on June 26, 1983, that granting a judicial separation as requested in the petition is not necessary here. To confirm that the parties were separated under Ponapean custom will effect the same result and will serve the same objective as granting a judicial separation.

[14-15] Turning to the second issue, custody and support of the minor child of the parties, the Court has jurisdiction to order custody and support of said child even if the parties represented to the court that the child's welfare is not an issue in this action. 39 TTC 103. The Court has a duty to ensure that the best interest of the child is preserved. The child of the parties is about 2 years and 5 months old when this order is entered.

Accordingly and in consideration of the above, it is

ORDERED:

1. That the petitioners Simon J. Kihleng and Emeliana J. Kihleng, being husband and wife, were separated from

[1 P. S. Ct. R 10]

each other on June 26, 1983, pursuant to recognized Ponapean custom; that this order confirms said separation as valid pursuant to Ponapean custom.

2. Petitioner Emeliana J. Kihleng, is awarded custody of the minor child of the parties, and petitioner Simon J. Kihleng is accorded the right of visitation at all appropriate times.

3. Both parties shall continue to discharge their obligation to consider the best interests of their child and to make life as happy for him as is consistent with his wholesome bringing up and proper nurturing. No specific amount of support is provided in this Order, but should circumstances change in the future warranting a specific designation of support, including the settlement of property or property rights of the parties, either party may file a motion in this action requesting a change in the provisions of this paragraph.

4. The parties are directed to provide copies to and to make this Order known to their respective parents.

5. No costs are assessed against either party.

NOTE: Petition was filed in English, hence the Court feels it is fittingto enter the Order also in English.


	POHNPEI SUPREME COURT REPORTS VOL. 1 [1 P. S. Ct. R 2] IN THE MATTER OF THE MARRIAGE BETWEEN SIMON J. KIHLENG and EMELIANA J. KIHLENG, Joint Petitioners Ponape Civil Action No. 5-84 Ponape State Court March 21, 1984 Joint petition by spouses for the grant of an order of separation. Petition did not state any specific ground for separation, but the evidence showed that petitioners had already bean separated and had been living apart since June 26, 1983. The Ponape State Court, EDWEL H. SANTOS, Chief Justice, held that the parties being husband and wife were separated from each other on June 26,1983, pursuant to recognized Ponapean custom, and granted an order confirming the separation. 1. Domestic Relations - Divorce - Courts - Jurisdiction Where there is want of ground for divorce, the Court has no jurisdiction to grant such to petitioners. (39 TTC 201.) 2. Domestic Relations - Separation - Custom Where husband and wife live apart as such for a period of over eight months prior to the filing of their joint petition for separation, such separation is effected under Ponapean custom. 3. Domestic Relations - Judicial Separation Parties who have separated and are seeking judicial separation of marriage should properly request the Court to confirm the separation of their marriage as being valid pursuant to 39 TTC 5, rather than a decree of judicial separation. 4. Domestic Relations - Judicial Separation - Procedure Notwithstanding the sophistication and experience of the petitioners in relation to bringing an action for an order of separation to the judicial [1 P. S. Ct. R 3] process for resolution, and with that understanding, the Court may apply the customary rule where the objective of the parties will be judiciously and justifiably served thereby, even where minor procedural details are not present. 5. Laws of Ponape - Custom Customs of Ponape are recognized, and are therefore a constituent part of the laws of this State ( 39 TT C 5 ). 6. Laws of Ponape Title 39 of the Trust Territory Code is a part of the laws of Ponape State. 7. Personal Law The status or condition of a person and his relation to other persons are fixed and controlled by the law of his domicile (24 Am Jur. 2d Section 23, Divorce and Separation). 8. Customary Separation Customary separation is quite similar to that known in the common law as a 'limited divorce' a divorce a mensa et thoro, in that the right of cohabitation of the parties terminates but the marriage remains undissolved. 9. Customary Separation - Purpose The common purpose for a customary separation is to allow time for the parties involved, their parents, friends, or other concerned parties to try to negotiate or to cause negotiation to take place with the objective of reconciling the parties so that they may be able to re-unite (pwurpene: as the Ponapean term denotes). 10. Courts - Judicial Notice - Customary Separation The Court, on its own motion, takes judicial notice of the implications and purposes of customary separation between husband and wife. 11. Domestic Relations- Local Custom - Family Law Actions The Trust Territory Code, now State law, recognizes local custom in family law actions (39 TT C Section 4). [1 P. S. Ct. R 4] 12. Courts - Domestic Relations - Powers The Court has power to enter decree confirming "...the annulment, divorce, or adoption effected in accordance with recognized custom" where the "validity thereof is questioned or disputed by anyone in such a manner as to cause serious embarrassment to... the parties" (39 TTC Section 5). 13. Domestic Relations - Persons Customarily Separated - Judicial Separation Where petition for judicial separation hinges on 39 TTC and by Ponapean custom parties are separated, the granting of a judicial separation is not necessary as confirmation that the parties are separated under Ponapean custom will effect the same result and serve the same objective as the granting of a judicial Separation. 14. Domestic Relations - Separation - Custody and Support of Minor Child Courts - Jurisdiction Upon a petition for an order of separation of husband and wife, the Court has jurisdiction to order custody and support of the child even if the parties represent to the Court that the child's welfare is not an issue in the action. (39 Section TTC 103). 15. Domestic Relations - Separation - Custody and Support of Minor Child Courts - Duty The Court has a duty to ensure that the best interest of the child is preserved in relation to his custody and support where the parents are seeking an order of separation. EDWEL H. SANTOS, Chief Justice 1. This is an action brought by a joint petition of the parties filed on 6 March 1984 requesting the Court "to grant their petition for separation." The petition was brought pursuant to Title 39 of the Trust Territory Code. Jurisdiction is ascertained and the Court proceeded with the hearing on the joint petition on 13 [1 P. S. Ct. R 5] March 1984, in the Justice's chambers with both petitioners present pro se. 2. The parties swear to their joint petition and state the following as facts: (a) The parties were joined in marriage on 28 August 1978 at the Catholic Mission Church in Kolonia. (b) On 26 June 1983, the parties were separated from each other by their own act. (c) On 1 July 1983, five days later, the parties, using their own words, "discussed and reconsidered their marriage very carefully between themselves and their parents, and have agreed that no reconciliation is likely to occur soon or any time in the future." 3. The petition does not mention any specific ground for separation of the marriage, though there is no State statutory requirement that ground for separation be pleaded, other than the grounds for divorce enumerated under 39 TTC, 201 et seq. Nor does the petition state any expressed consideration for the separation agreement as would be required in some jurisdictions. 4. At the hearing the petitioners informed the Court that a baby boy was born to the petitioners on 31 October 1981, and is under the custody of petitioner Emeliana J. Kihleng. Petitioners further represent to the Court that the welfare of [1 P. S. Ct. R 6] the child is not an issue at the moment. The Court is faced with two basic issues here. ONE, whether on the basis of the joint petition and the statements represented to the Court by the petitioners, granting a judicial separation of the marriage between the parties is necessary and justified; and TWO, whether under the circumstances the Court ought to assume jurisdiction over and to provide for the custody and support of the minor child of the parties. [1] For want of ground for divorce, the Court has no jurisdiction to grant such to the petitioners. 39 TTC, 2001. [2-7] While the petitioners request that Court "to grant a decree of separation," the petitioners also state in their petition that they had been separated and have been living apart from each other since June 16, 1983, an extended period of over eight months prior to the filing of the their joint petition. This is in effect a separation of the marriage effected under Ponapean custom. The petitioners should properly be requesting the Court to confirm the separation of their marriage as being valid pursuant to 39 TTC 5, [1 P. S. Ct. R 7] rather than a decree of judicial separation. Nevertheless, the Court is cognizant of the degree of sophistication and experience of the petitioners in relation to bringing an action of this nature to the judicial process for resolution, and with that understanding, the Court has no hesitation in applying the customary rule where the objective of the parties will be judiciously and justifiably served thereby, even where minor procedural details are not present. Customs of Ponape are recognized, 39 TTC 5, and therefore they are a constituent part of the laws of this State. The status or condition of a person and his relation to other persons are fixed by the law of his domicile. The lex domicilii controls the status of the persons. 24 Am. Jur.2d, Section 23, Divorce and Separation. [8-10] This customary separation is quite similar to that known in the common law jurisdiction as a "limited divorce', a divorce a mensa et thoro, in that the right of cohabitation of the parties terminates but the marriage remains undissolved. The common purpose of this customary separation is to allow time for the parties involved, their parents, friends, or other concerned parties to try to negotiate or to cause negotiation to take place with the objective of reconciling the parties so that they may be able to [1 P. S. Ct. R 8] re-unite (pwur pene: as the Ponapean term denotes). In view of the existence of this custom the Court, on its own motion, takes judicial notice of that fact. An action for the decree of "separation of marriage" [sic) (Separate Maintenance) under most common law jurisdictions, is to affirm the marriage relations and to enforce the obligations of that relation. Sam v. Sam, 3 T. T. R. 203, at page 205, citing 24Am. Jur. 2d pp 176-178. [11] Section 4 of Title 39 of the Trust Territory Code, now State law, recognizes local custom in family law actions. This section reads as follows: "4 . . . .Local custom recognized. Nothing contained in this title, except for the provisions of section 5 of this chapter, shall apply to any annulment, divorce, or adoption effected in accordance with local custom, nor shall any restrictions or limitations be imposed upon the granting of annulments, divorces, or adoptions in accordance with local customs."(Emphasis added.) [12] Section 5 of the same Title authorizes the Court to enter decree confirming"... the annulment, divorce, or adoption effected in accordance with recognized custom" where the "validity thereof is questioned or disputed by anyone in such a manner as to cause serious embarrassment to... the parties. . ." [1 P. S. Ct. R 9] [13] While the petition is hinged upon Title 39 of the Trust Territory Code which is now considered as part of the Ponape State law as explained earlier, and while the said Title recognizes Ponapean custom in relation to family law actions, the Court holds that the parties were separated under Ponapean custom on June 26, 1983, that granting a judicial separation as requested in the petition is not necessary here. To confirm that the parties were separated under Ponapean custom will effect the same result and will serve the same objective as granting a judicial separation. [14-15] Turning to the second issue, custody and support of the minor child of the parties, the Court has jurisdiction to order custody and support of said child even if the parties represented to the court that the child's welfare is not an issue in this action. 39 TTC 103. The Court has a duty to ensure that the best interest of the child is preserved. The child of the parties is about 2 years and 5 months old when this order is entered. Accordingly and in consideration of the above, it is ORDERED: 1. That the petitioners Simon J. Kihleng and Emeliana J. Kihleng, being husband and wife, were separated from [1 P. S. Ct. R 10] each other on June 26, 1983, pursuant to recognized Ponapean custom; that this order confirms said separation as valid pursuant to Ponapean custom. 2. Petitioner Emeliana J. Kihleng, is awarded custody of the minor child of the parties, and petitioner Simon J. Kihleng is accorded the right of visitation at all appropriate times. 3. Both parties shall continue to discharge their obligation to consider the best interests of their child and to make life as happy for him as is consistent with his wholesome bringing up and proper nurturing. No specific amount of support is provided in this Order, but should circumstances change in the future warranting a specific designation of support, including the settlement of property or property rights of the parties, either party may file a motion in this action requesting a change in the provisions of this paragraph. 4. The parties are directed to provide copies to and to make this Order known to their respective parents. 5. No costs are assessed against either party. NOTE: Petition was filed in English, hence the Court feels it is fittingto enter the Order also in English.