POHNPEI LAW REPORTS
VOL.3A
[3A PN.L.R.642]
MERSEHDES LUZAMA,
Plaintiff
v.
NARCISIO BARTOLOME,
Defendant
PCA No. 84-89
Trial Division of the Pohnpei Supreme Court
September 20, 1989
Action for dissolution of marriage and for the court: 1. to grant a divorce, 2. to award custody of children to petitioner, and 3. to order child support to be provided by the father of the children.
The Trial Division of the Pohnpei Supreme Court EDWEL H. SANTOS, Chief Justice, held that: (1) the marital bonds executed by custom were dissolved; (2) the children would be custodians of both the mother and the father; and that when the father of the children was in Pohnpei State the children would be under his custody but when he was not on Pohnpei, either he or a representative should bring the children to the residence of the children's mother, (3) the fatherof the children should provide the necessities of life, pertaining to the best interest and welfare of the children.
1. Domestic Relations - Courts - Powers
The Court has power to deny retroactive operation of an overruled decision or statutedeclared unconstitutional, but in appropriate cases the court may in the interest of justice make the rule prospective, since there is much to be said in favor of such a rule for cases arising in the future.
[3A PN.L.R.643]
2. Domestic Relations - Divorce - Jurisdiction
Jurisdiction of the courts in matters relating to divorce and alimony is given by statute and every power exercised by the court with reference thereto must find its source in the statute or it does not exist.
3. Domestic Relations - Divorce - Courts - Jurisdiction
Jurisdiction over the subject matter is the power of a court to (1) hear the divorce, (2) grant the divorce and (3) determine cases of the general class to which the action in question belongs.
4. Domestic Relations - Divorce - Courts - Jurisdiction
The Court has jurisdiction to grant divorce where it is authorized by the Pohnpei State Constitution.
5. Courts - Jurisdiction
The trial division of the Pohnpei Supreme Court has original jurisdiction over all cases civil and criminal within the jurisdiction of Pohnpei and all appellate jurisdiction over decisions of all inferior courts and adjudicatory bodies. (Pohnpei State Constitution Article 10 sec. 4(2))
6. Courts - Jurisdiction
The state court shall have original jurisdiction to try all matters civil and criminal, within the jurisdiction of state law. (Article 11, sec. 20 of S.L. 2L-160-82, Pohnpei Judiciary Act of 1982.
7. Domestic Relations - Divorce - Courts - Jurisdiction
The Court has jurisdiction to grant the parties divorce pursuant to 39 TTC Section 1.
[3A PN.L.R.644]
8. Domestic Relations - Statutes - Governing Law
Volume 39 of the Trust Territory Code is one of the laws transferred from the TT Government to the Pohnpei State Government and is the prevailing law for granting divorce today. (39 TTC 201)
9. Domestic Relations - Divorce - Grounds
Divorce from marriages may be granted for the following causes and no other:
1. Adultery.
2. The guilt of either party toward the other of such cruel treatment, neglect or personal indignities, whether or not amounting to physical cruelty as to render the life of the other burdensome and intolerable and their further living together unsupportable.
3. Willful desertion continued for a period of not less than one year.
4. Habitual intemperance in the use of intoxicating liquor or drugs continued for a period of not more than one year.
5. The sentencing of either party to imprisonment for life or for three years or more. After divorce for such case, no pardon granted to the party so sentenced shall affect such divorce.
6. The insanity of either party where the same has existed for three years or more.
7. The contracting by either party of leprosy.
8. The separation of the parties for two consecutive years without cohabitation, whether or not by mutual consent.
[3A PN.L.R.645]
9. Willful neglect by the husband to provide suitable support for his wife when able to do so orwhen failure to do so is because of his idleness, profligacy of dissipation. (39 TTC 201).
10. Domestic Relations - Divorce - Conditions for Grant
No divorce shall be granted where one party has not resided in the Trust Territory two years prior to the filing of the petition. (39 TTC 202)
11. Domestic Relations - Divorce - Conditions for Grant
No divorce shall be granted where the ground for divorce has been forgiven by the injured party. (39 TTC 203)
12. Domestic Relations - Divorce - Conditions for Grant
No divorce for the cause of adultery shall be granted where the r offense has been committed by the procurement or with the connivance of the plaintiff. (39 TTC 204)
13. Domestic Relations - Divorce - Conditions for Grant
The law invigorates the courts in deciding on the reasons for the divorce, where the reasons for the divorce, where the reason is not listed above, divorce may not be granted according to law.
14. Domestic Relations- Divorce - Conditions for Grant
The petitioner must show in the pleadings reasons for the divorce and prove such allegations to the court in order to be granted a divorce, otherwise no divorce may be granted.
[3A PN.L.R.646]
15. Domestic Relations - Divorce - Grounds
Where ground for divorce is listed in 39 TTC sec 201, such as sec, 201(1) Adultery, and sec. 201(3) Willful desertion continued for a period of not less than one year, the court may grant a divorce. (39 TTC 201(1) and (3)
16. Domestic Relations - Divorce - Grounds - Evidence - Proof
Where adultery is listed as one of the grounds for divorce, plaintiff shall have to prove adultery and where no sufficient evidence of adultery is present, the court cannot grant divorce.
17. Domestic Relations - Divorce - Grounds
Continued willful desertion for a period of not less than one year is enough in order to grant a divorce where the evidence supports the ground.
18. Domestic Relations - Divorce - Child Custody - Common Law
Common law does not identify which parent posseses superior right over the other in a divorce custody claim.
19. Domestic Relations - Divorce - Child Custody - State Power
The fact that there is a controversy over the custody of a child however, does not alone warrant the State's interference for the purpose of determining what is for the child's best interests.
20. Domestic Relations- Divorce- Child Custody- State Powers- Infants
The special protection of the law over the personal rights of infants and the position of the State as parens patriae, are manifested in the power of the State over the custody of the infant.
[3A PN.L.R.647]
21. Domestic Relations-Divorce- Child Custody-Courts-Jurisdiction
A court may not take jurisdiction to adjudicate the custody of a minor on its own motion.
22. Domestic Relations - Divorce - Child Custody - Courts
It is not necessarily improper for the trial judge in a child custody case to hold private interview with the child in question, without permitting representation by either or both of the parties to the litigation.
23. Domestic Relations - Child Custody
Where the party attacking a custody award on the ground of impropriety of a private interview between the trial judge and the child has consented to, or acquiesced in, the private interview in question, the general rule is that any claimed error in this regard is waived, and the interview cannot be used as the basis for attacking the custody.
24. Domestic Relations - Divorce - Child Custody - Courts - Judicial Notice
It is universally recognized by all courts that in fixing custody of a child considerations of the welfare and interests of the child outweigh all other considerations.
25. Domestic Relations - Divorce - Child Custody
Naturally, no hard and fast rule can be laid down as to what will best serve the welfare and interests of a child in child custody matters.
26. Domestic Relations- Divorce-Child Custody- Determining Factors
It is generally agreed that the court may consider the wishes of the child as a factor in determining its custody.
[3A PN.L.R.648]
27. Domestic Relations - Divorce - Child Custody - Determining Factors
Whether the child is of sufficient age, intelligence, and discretion to formulate a rational judgment as to its welfare are determining factors in its welfare.
28. Domestic Relations - Divorce - Child Custody - Courts Ascertainment of Child's View
The child's view may be ascertained by the court by personal inquiry, public or private, orthrough a committee appointed by it for such purpose. And such interview may be executed in the absence of an attorney.
29. Domestic Relations - Divorce - Child Custody - Determining Factors
Wishes of a child like any other factors must yield to the overall welfare and the best interest of the child.
30. Domestic Relations - Divorce - Child Custody - Courts - Discretion
It is for the trial court, in its sound discretion to determine what weight, if any, should be given to the wishes of the child in determining its custody.
31. Domestic Relations - Divorce - Child Custody
Unless it is demonstrated by evidence that the mother of the child is not afit and properperson to have custody, the court normallywill award custody of minor child to the mother.
32. Domestic Relations - Divorce - Child Custody - Custom
Custom, on the contrary gives the man the right to own the children. But the right of taking care of minor children is vested in the mother.
[3A PN.L.R.649]
33. Domestic Relations - Marriage - Custom - Customary Marriage Right of Father over Children
Where parties are married by custom, the man alone owns the children of such marriage, and the famous saying "nah seri or neirail seri" connotes that the child belongs to that man or that the child belongs to its father's family.
34. Domestic Relations - Custom
"Selin pwopwoud kin mwei ah selin neitik soh" is phrase that means that the cord which ties the marriage together may be severed whereas that which ties a family together may never be severed.
35. Domestic Relations - Marriage - Custom - Customary Marriage Right of Mother over Children.
Though custom provides that the father alone owns the children, the mother plays the primary role in the children's up-bringing.
36. Domestic Relations-Divorce-Child Custody-Determining Factors
The question of custody is considered primarily by the best interest of the child.
37. Domestic Relations-Divorce-ChiIdCustody-Determining Factors
For those under about 12 years of age, the court considers that custody by the mother is usually best where it is consistent with the local culture, thus each child's situation must be considered on its own merits and an order as to custody in these situations may be changed at any time, after reasonable notice, on the showing of good cause.
38. Domestic Relations - Divorce - Child Custody and Support
In granting or denying an annulment or a divorce, the courts may make such orders for custody of minor children for their support, for
[3A PN.L.R.650]
support of either party and for the disposition of either or both parties' interest in any property in which both have interests, as it deems justice and the best interests of all concerned may require. (39 TTC 103)
39. Domestic Relations - Divorce - Child Custody and Support - Courts - Power
Any decree as to the custody or support of minor children or of the parties shall be subject to revision by the court at any time upon motion of either party and such notice, if any, as the court deems justice requires. (39 TTC 103)
40. Domestic Relations- Divorce - Child Custody and Support- Custom
When custody calls for the children living in-between parents, custom does not impose child support from the parent that does not have possession of the children.
41. Domestic Relations - Divorce - Child Custody and Support - Courts - Discretion
The law provides for the Court to make an order that would help determine which parent should provide child support such as food, money, and other necessities (39 TTC 103)
42. Domestic Relations - Divorce - Alimony - Custom
Custom does not require a spouse to provide alimony to the other spouse when they are divorced.
43. Domestic Relations - Divorce - Obligations of Husband - Custom
Where the cord that ties together a marriage is severed, all duties of husband and wife were also severed.
[3A PN.L.R.651]
44. Domestic Relations - Alimony - Governing Law
39 TTC sec. 103 gives the court power to grant alimony to a wife if it deems necessary and just.
Editorial Note:
The opinion and judgment in this case was rendered and entered in Pohnpeian, but because of the importance of custom discussed herein, an Englishtranslation was produced by the Law Research personnel for the benefit of those who do not speak the Pohnpeian language.
Counsel for Plaintiff: Herold Henry
Trial Counselor
Counsel for Defendant: loanis Kanichy
Trial Counselor
EDWEL H. SANTOS, Chief Justice
This action was brought by Mersehdes Luzama requesting the Court to grant (1) divorce between her and Narchy Bartolome (dissolution of marriage), (2) all children to be under her custody, and (3) child support to be provided by the father.
The defendant Narchy Bartolome denies the claim on the ground that all the six children are living with him, and that the defendant and his adopted father are still taking care of the six children. Even though one child lives with the plaintiff he still receives child support from Narchy.
[3A PN.L.R.652]
Order for default judgment against the defendant was entered on May 30, but due to a motion claiming that he never received any summons for court hearing in order to answer her claim, the Court dismissed the order of May 30, and the defendant filed an answer.
Hearing was held on July 17,1989, in the town of Kolonia and the following are the findings of fact: (Hereafter in this Judgment 1 use "Mercy" to mean Mersehdes Luzama, the plaintiff; and "Narcy", for Narchy (Narcisio) Bartolome, the defendant.)
1. Mercy and Narcy were married according to Pohnpei custom in about 1971 or 1972, and for the most part of their life together as man and wife, they lived in Ipwitek, Madolenihmw Municipality.
2. During the course of the marriage between Mercy and Narcy, were born to them the following seven children:
(i) Josephina, daughter 15 years old
(ii) Justina, daughter. 13 "
(iii) Eddy, son 11 "
(iv) Edward, son 9 "
[3A PN.L.R.653]
(v) Jimmy, son 6"
(vi) Johnny, son 4 " and;
(vii) Costantino, son 2 "
(The ages of the children areas shown in the claim filed in the Court on April 14, 1989).
3. In March 1988, Mercy and Narcy separated when Narcy drove Mercy and the youngest child to her home in Paliais, Nett Municipality, and at the end of June 1988, Narcy left for Guam.
4. Prior to Narcy's departure to Guam, the older children were residing with Narcy and his father in Ipwitek, Madolenihmw. After his departure four of the older children joined the youngest child and lived under the care of Mercy. Jimmy and Johnny, the other two children continued to reside with Narcy's father in Madolenihmw.
5. At about the end of March 1988, Narcy returned from Guam 1988, went to Paliais where Mercy and the six children were residing, (Mercy was not present at her house at such a time) took the six children with him to Ipwitek, Madolenihmw without Mercy's consent. It is for this reason that Mercy became upset and filed her
[3A PN.L.R.654]
claim on April 14, 1989.
6. Narcy was a skilled mechanic and fisherman. During their marriage, the product of Narcy's work was sufficient enough to provide the necessities of life for his family. They lived peacefully. They were content with their lives. They also lived on products from the land and sea; money, and had other wealth that Pohnpeians have. Mercy never had to worry about getting a job at that time.
7. Four of the children were attending school in 1989, but two of the children Jimmy and Johnny spent most of their time with their grandfather or Narcy's adopted father. (Narcy claims that Jimmy and Johnny were adopted by his father, but Mercy did not agree to such contention claiming that no consent to adoption was ever made by her, the natural mother of the boys).
This cause presented the following questions for determination in rendering a just and proper judgment in accordance with the law and customs of Pohnpei:
1. Whether the law provides the Court with jurisdiction to grant a divorce where the marriage was effected under custom.
[3A PN.L.R.655]
2. In accordance with the law or custom, during a dissolution of marriage, which of the parents has more authority over their children, in order for the children to be placed under his or her care.
3. Whether where husband and wife have joint custody of their children during separation, does Pohnpei custom imposes any obligation on one parent to provide support for the children in a situation where the children are with the other parent.
4. Whether during a dissolution of marriage, as in the case of Mercy and Narcy, Pohnpei custom imposes obligation on the man or the woman to provide food, personal property, and other necessities (alimony) to the other.
DISCUSSION OF LAW
1. The issue is whether the law gives the Court jurisdiction to grant a divorce where the marriage was executed by way of custom. The answer to this question is -"Yes".
[1,2] In order to explain the matter herein at issue, we may resort to the explanation found in other jurisdictions as well as the explanation expounded by our own jurisdiction. Paulus v. State of Pohnpei. 2 P.S.Ct.R 481 (1987). Jurisdiction of the Court in
[3A PN.L.R.656]
matters relating to divorce and alimony is given by statute and every power exercised by the Court with reference thereto must find its source in the statute or it does not exist. Timmerman v. Timmerman, 65 ALR 2d 1372.
[3,4] Jurisdiction over the subject matter is the power of a Court to (1) hear the divorce, (2) grant the divorce and (3) determine cases of the general class to which the action in question belongs. Schillerstrom v. Schillerstrom, 2 ALR 2d 271. The Court has the jurisdiction to grant a divorce where it is authorized by the Pohnpei State Constitution.
[5,6] In the case at bar, the Pohnpei State Constitution gives authority to the Court and Article 10, section 4(2) states:
The trial division of the Pohnpei Supreme Court has original jurisdiction over all cases civil and criminal within the jurisdiction of Pohnpei and all Appellate jurisdiction over decisions of all inferior courts and adjudicatory bodies...
Also see Title II section 20 of the Pohnpei Judiciary Act of 1982, S. L 2L-160-82:
The state court shall have original jurisdiction to try all matters civil and criminal, within the jurisdiction of state law.
[3A PN.L.R.657]
[7] A divorce action is considered a civil action. Thus the Court has jurisdiction to grant the parties divorce pursuant to 39 TTC Section 1. In re: Marriage between Mark and Jim,1 P. S.Ct. R 33.
[8] Title 39 TTC is one of the laws inherited by Pohnpei State from the Trust Territory Government and is the prevailing law today. Section 201 of 39 TTC provides ground on which a divorce may be granted. Section 201 provides:
[9] Divorce from marriages may be granted under this Chapter for the following causes and no other:
1. Adultery
2. The guilt of either party toward the other of such cruel treatment, neglect or personal indignities, whether or not amounting to physical cruelty as to render the life of the other burdensome and intolerable andtheirfurther living together unsupportable.
3. Willful desertion continued for a period of not less than one year.
4. Habitual intemperance in the use of intoxicating liquor or drugs continued for a period of not more than one year.
[3A PN.L.R.658]
5. The sentencing of either party to imprisonment for life or for three years or more. After divorce for such cause, no pardon granted to the party so sentenced shall affect such divorce.
6. The insanity of either party where the same has existed for three years or more.
7. The contracting by either party of leprosy.
8. The separation of the parties for two consecutive years without cohabitation, whether or not by mutual consent.
9. Willful neglect by the husband to provide suitable support for his wife when able to do so or when failure to do so is because of his idleness, profligacy or dissipation.
Title 39 TTC also provides three sections which the Court must consider in order to see if the granting of divorce is properly executed.
[10] Section 202 provides that no divorce shall be granted where one patty has not resided in the Trust Territory two years prior to the filing of the petition.
[11 ] Section 203 states no divorce shall be granted where the
[3A PN.L.R.659]
ground for divorce has been forgiven by the injured party. Such forgiveness may be shown by express proof or by voluntary cohabitation of the parties with knowledge of the fact and restoration of the forgiving party to all marital rights. Such forgiveness implies a condition that the forgiving party must be treated with conjugal kindness. This forgiveness is revoked and the original ground for divorce is revived if the party forgiven commits an act of unkindness sufficiently habitual and gross to show that the conditions of forgiveness have not been accepted in good faith or have not been fulfilled.
[12] Section 204 provides that no divorce for the cause of adultery shall be granted where the offense has been committed by the procurement or with the connivance of the plaintiff.
[13,14] The law invigorates the courts in deciding on the reasons for the divorce. Where the reason is not listed above, divorce may not be granted according to law. The petitioner must show in the pleadings reasons for the divorce and prove such allegations to the Court in order to be granted a divorce otherwise no divorce may be granted.
[3A PN.L.R.660]
In this case, Mercy prays for the Court to grant her a divorce from Narcy. In her pleadings she states the following:
"6. That on or about 1988, the defendant deserted the plaintiff had stopped treating her like a wife as when they were married in 1971 or 1972.
7. That the defendant deserted the plaintiff and marry [sic] another woman by the name of Mihner Ehsa of Madolenihmw.
8. That the defendant and Mihner Ehsa are living together as husband and wife.
In general where ground for divorce is listed in 39 TTC sec. 201, such as sections 201(1) Adultery, and 201(3) Willful desertion continued for a period of not less than one year, the court may grant a divorce.
[15,16] Where adultery is listed as one of the grounds for divorce, plaintiff shall have the burden to prove the adultery and where no sufficient evidence of adultery is present, the Court cannot grant divorce.
[17] This Court is satisfied however, that willful desertion
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continued for a period of not less than one year is sufficient ground to grant a divorce where the evidence supports the ground.
2. Whether Pohnpei custom places an obligation on the man or the woman to have custody over their children when separated.
[18-21] Common law does not identify which parent possesses superior right overthe other in a divorce custody claim. The fact that there is controversy over the custody of a child, however, does not alone warrant the State's interference for the purpose of determining what is for the child's best interest. 42 AmJur 2d, Infants s. 28. The special protection of the law over the personal rights of infants and the position of the State as parens patriae, are manifested in the power of the State over the custody of the infant. A court however, may not take jurisdiction to adjudicate the custody of a minor on its own motion. Knollhoff v. Norris, 256 SW 2d 79, cited in AmJur 2d., Infants, s. 29 fn 16 (prove).
[22,23] It is not necessarily improper for the trial judge in a child custody case to hold private interview with the child in question, without permitting representation by either or both of the
[3A PN.L.R.662]
parties to the litigation. Where the party attacking a custody award on the ground of the impropriety of a private interview between the trial judge and the child has consented to, or acquiesced in, the private interview in question, the general rule is that any claimed error in this regard is waived, and the interview cannot be used as the basis for attacking the custody award. Stuart v. Stuart, 25 Cal Rptr. 893 (AmJur 2d s. 32 fn 9).
[24,25] It is universally recognized by all courts that in fixing the custody of a child, considerations of the welfare and interests of the child outweigh all other considerations. Naturally, no hardand-fast rule can be laid down as to what will best serve the welfare and interests of a child. 42 AmJur 2d Infants s. 43. This requires the discretion of the Court.
[26,27] It is generally agreed that the court may consider the wishes of the child as a factor in determining its custody, Stafford v. Stafford, 299 111438, cited in 42 AmJur Infants s. 44 fn 6, if the child is of sufficient age, intelligence, and discretion to formulate a rational judgment as to its welfare. McGregor v. McGregor, 58 So 2d 457, cited in AmJur 2d Infants s. 44 fn 7.
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Thus the child's wishes have been accorded weight in numerous cases, particularly where the child's wishes were clearly consistent with the attainment of its welfare, or where both contestants were found to be equally fit to have the child's custody.
[28] The child's view may be ascertained by the court by personal inquiry, public or private, or through a committee appointed by it for such purpose. And such interview may be executed in the absence of an attorney. 42 AmJur 2d ss. 32 & 43. This Court therefore adopts the rule when necessary.
[29,30] Wishes of a child like any other factors must yield to the overall welfare and the best interest of the child. It is forthe trial court, in its sound discretion, to determine what weight, if any, should be given to the wishes of the child in determining its custody.
[31] An important principle to look to is Ikeda v. Ngirachelbaed, 5 TTR 204, where the court held that unless it is demonstrated by evidence that the mother of the child is not a fit and proper person to have custody, the court normally will award custody of minor children to the mother.
[32] Custom, on the contrary gives the man the right to own
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the children. But the right of taking care of minor children is vested in the mother. Eventually, when the children get olderthey have the opportunity to choose which parent they prefer to live with.
[33,34] In Solomon v. Alfons, PCA No. 46-86, where the question concerns marriage by custom, the Court held that the man alone owns the children of. such marriage; and the famous saying "nah seri or neirail seri" connotes that that child or those children belong to that man orto the paternal side of the family. As part of the custom when young girls have illegitimate children, the question normally asked is "nein ihs serio", which literally means "to which man does that child belong?" Nevertheless, it is the mother that has the duty to bring up the younger children. Pohnpeians say "selin pwopwoud kin mwei, ah selin neitikso". This connotes that the cord which ties a marriage together may one day be severed, but that which ties the family together shall never be severed. Though we are aware that a marriage may result in a divorce, the relatlonship between the children and the parents as a family shall never cease to exist. Fathers and mothers will always call their children " my child or my children", and children will always
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address their fathers and mothers "Father" and "Mother".
[35] Though custom provides that the father alone owns the children, the mother plays the primary role in the children's upbringing. John L. Fisher's The Eastern Carolines, 3rd Ed. page 133.
[36,37] In Yamada v. Yamada, 2 TTR 66, the Court held that the question of custody is considered primarily by the best interest of the child. For those under about 12 years of age, the Court considers that custody by the mother is usually best where it is consistent with the local culture, thus each child's situation must be considered on its own merits and an order as to custody in these situations may be changed at anytime, after reasonable notice, on the showing of good cause. The courts may treat each case differently when it involves the best interest of the child.
[38] The prevailing law states:
In granting or denying an annulment or a divorce, the courts may make such order for custody of minor children fOr their support, for support of either party and for the disposition of either or both parties' interest in any property in which both have interests, as it deems justice and the best interests of all concerned may require.
[39] Any decree as to the custody or support of minor children
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or of the parties shall be subject to revision by the Court at anytime upon motion of either party and such notice, if any, as the Court deems justice requires.
3. Whether during the time of a divorce, while the children are living between parents, Pohnpei custom imposes any obligation on a parent to provide child support forthe children even when the children are living with the other parent.
[40] When custody calls for the children living in-between parents, custom does not impose any obligation for child support on the parent that does not have possession of the children. But by generosity and good moral judgment of a parent, especially if the father has love and good morals, he would provide child support even when the children are with their mother. Such an act strengthens the power that a father has over his children. However, if the father shows that he does not care for his children so as not to provide support forthem while the children are residing with their mother, it can be said that he has no love, is selfish and such an act committed on his part is an embarrassment in his role as the father of the children.
[3A PN.L.R.667]
[41] According to 39 TTC 103, the law provides for the Court to make an order that would help determine which parent should provide child support such as food, money, or necessities.
4. Whether custom imposes on the man or the woman after a divorce to provide support to the other spouse.
[42,43] Custom does not require a spouse to provide alimony to the other spouse when they are divorced. Where the cord that ties together a marriage is severed, all duties of husband and wife are also severed. That is why according to custom it is awkward for a woman to ask for alimony or any kind of support from a man she had separated from, as well as file for spousal support in this Court. Eventually, perhaps, due to the random changes of the lifestyles of Pohnpeians, one can expect that the situation might change.
[44] 39 TTC sec. 103 gives the Court powerto grant spousal support to a wife if it deems necessary and just.
In conclusion the plaintiff prays for this Court to grant a divorce, to be awarded custody of the children, and for herchildren to receive child support.
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JUDGMENT
It is therefore ADJUDGED, ORDERED and DECREED as follows:
1. The customary marital bond between Mersehdes Luzama and Narcisio Bartolome, effected in 1971 or 1972 is now dissolved, Divorce is therefore granted by this Court.
2. Custody and Child Support for the children.
A. The following children:
a. Josephina, daughter
b. Justina, daughter
c. Eddy, son
d.
Edward, son
e. Jimmy, son and
f. Johnny, son
shall live-in-between their parents Narcisio Bartolome and Mersehdes Luzama, and when their father Narcisio Bartolome is in Pohnpei, shall reside with him. When Narcisio Bartolome is not in Pohnpei, Narcisio himself or a person representing him, shall transport the children to their mother Mersehdes Luzama.
B. The youngest son, Costantino, shall remain in the cus-
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tody of his mother, Mersehdes Luzama, and the child's father, Narcisio Bartolome, shall provide child support in the amount of $25.00 per month. This support shall commence in May of 1989. Duty is imposed upon Narcisio Bartolome to notify Mersehdes Luzama of the said child support. Mersehdes shall be responsible for any supplemental provision necessary to sufficiently support the child.
3. Visitation Rights
A. Mersehdes Luzama, having given prior notice, may visit the children living with Narcisio Bartolome.
B. Narcisio Bartolome having given prior notice to Mersehdes Luzama, may visit the child, Costantino.
C. In the event that the children visit the other parent, that parent shall provid support for the children.
4. In the event that one parent fails to comply with any of the conditions herein, the non-defaulting party may give notice to the Court of such failure by motion.
5. Each party shall bear his or her own costs or attorney's fees.
So Ordered on this 20th, September 1989.