Pangelinan v. Pangelinan

POHNPEI LAW REPORTS

VOL. 3

[3 PN.L.R. 228]

ELENITA S. PANGELINAN,

Petitioner

JOHN R. PANGELINAN,

Respondent

Pohnpei Civil Action No. 113-88

Trial Division of the Pohnpei Supreme Court

September 23, 1988

Petition for divorce. Custody of the children was contested on the pleadings. The respondent, a citizen of the Commonwealth of the Northern Marianas living in Saipan, failed to appear although there was on file a return of service showing that he had been served notice of the petition by mail, postage prepaid, addressed to his mailing address in Saipan. The petitioner was a citizen of the Republic of the Philippines, resident in Pohnpei since October 30, 1987. At the time of filing her complaint she had been resident in Pohnpei for less than two years.

The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, granting the petition, held that (1) service of notice of the petition by mail was complete upon mailing; (2) jurisdiction vested in the Court under Chapter 1 of Title 39 of the Trust Territory Code, which remained in effect in Pohnpei State; (3) while Article IV of the Constitution of the Federated States of Micronesia and Article 4, Section 3, of the Pohnpei State Constitution guaranteed to individuals all civil rights, including equal protection of laws, the Pohnpei Constitution was more specific in its enumeration of classes of persons thatwere protected, including persons of different national origin; (4) Section 202 of Title 39 of the Trust Territory Code, which provided that "No divorce shall be granted unless one of the parties shall have resided in the Trust Territory for two years immediately preceding the filing of the complaint," was in violation of Article 4, Section 3, of the Pohnpei State Constitution and therefore was invalid; (5) there being no dispute on the issue of divorce, the Court viewed granting of divorce to be appropriate; (6) in determining which parent shall have the custody of the children upon adivorce the Courtwould consider foremostthe best interest of the children.

[3 PN.L.R. 229]

1. Civil Procedure - Process - Service

Service of notice of petition by mail is complete upon mailing (PNI Rules of Civil Procedure, Rule 56).

2. Courts - Jurisdiction - Divorce

The Court has jurisdiction in a divorce case between noncitizens of Pohnpei pursuant to Chapter 1 of Title 39 of the Trust Territory Code which remains ineffect in Pohnpei State.

3. Constitutional Law - Guaranteed Rights

While Article IV of the Constitution of the Federated States of Micronesia and Article 4, Section 3, of the Pohnpei State Constitution guarantee to individuals all civil rights, including equal protection of laws, the Pohnpei Constitution is more specific in its enumeration of classes of persons that are protected, including persons of different national origin.

4. Constitutional Law - Statutes - Constitutionality

Section 202 of Title 39 of the Trust Territory Code, which provides that "No divorce shall be granted unless one of the parties shall have resided in the Trust Territory for two years immediately preceding the filing of the complaint," is in violation of Article 4, Section 3, of the Pohnpei State Constitution and is therefore invalid.

5. Domestic Relations - Divorce

Where there is no dispute on the issue of divorce in a matrimonial cause, the Court views the granting of divorce to be appropriate.

[3 PN.L.R. 230]

6. Domestic Relations - Divorce - Custody of Children

In determining which parent shall have the custody of the children upon the divorce of the parents, the Court will consider foremost the best interest of the children.

Counsel for Petitioner: Sungiwo Hadley

Trial Counselor

Kolonia, Pohnpei 96941

JUDAH C. JOHNNY, Associate Justice

[1] This matter came on to be heard before me in the Trial Division of the Pohnpei Supreme Court on August 31, 1988, in Kolonia, State of Pohnpei. Appearing were the petitioner and her counsel, Sungiwo Hadley, Trial Counselor. The respondent failed to appear, although there was on file a return of service, showing service to have been made on him by mail, postage prepaid, addressed to John R. Pangelinan, P. O. Box 1476, Saipan, CM 96950, on July 18,1988, filed by the Pohnpei State Clerk of Courts. Service by mail is complete upon mailing. Rule 56, Rules of Civil Procedure. Both parties having been properly noticed and return duly filed thereof, this Court may proceed into the consideration of the merits of this case.

[3 PN.L.R. 231]

FINDINGS OF FACT

I found the following facts:

1. The petitioner is a citizen of the Republic of the Philippines, who has resided in the State of Pohnpei since about October 30, 1987.

2. The respondent is a citizen of the Commonwealth of the Northern Mariana Islands, who presently maintains his residence on Saipan, the Northern Mariana Islands.

3. The petitioner and the respondent were united in marriage on Saipan, on December 29, 1978.

4. During the parties' marriage union, the following children were born to them:

a. Christopher, male, 8 years old

b. Dela, female, 7 years old

c. Stephen, male, 4 years old

d. Johnson, male, 2 years old

5. The parties were separated and have not cohabited as husband and wife since 1985.

6. No property, real or personal, is at issue.

[3 PN.L.R. 232]

OPINION

[2] Two reliefs are sought in this action, namely for a divorce of the parties from marriage, and the award of custody of the children. Jurisdiction vests in this Court under Chapter l of Title 39 of the Trust Territory Code, which remains in effect in this State. State vs Mack, et al, 2 P.S.Ct.R 269. Particular note is however made of Section 202 of Title 39 of the Trust Territory Code, which reads,

"No divorce shall be granted unless one of the parties shall have resided in the Trust Territory for two years immediately preceding the filing of the complaint."

It is clear from the facts that neither one of the parties had resided in Pohnpei State for two years. The petitioner has resided in Pohnpei State since October 30, 1987, which is less than a year. The respondent has not resided in Pohnpei. It follows that, if Section 202 of Title 39 remains in effect in this jurisdiction, this Court would not have jurisdiction over this matter.

Section 202 of title 39 of the Trust Territory Code was attacked by our predecessor Trust Territory High Court on constitutional grounds, and was held unconstitutional. See Yang vs. Yang, 5 TTR 427 (1971). In Yang, the court by Associate Justice

[3 PN.L.R. 233]

Arvin Brown held that the equal protection of laws guaranteed in the Bill of Rights, imposes an obligation on all officials not to interfere with the freedom of individuals any more than is reasonably necessary. It held therefore that the two-year residency requirement for granting of divorces in Section 202 of the Trust Territory Code denies a party of equal protection of the laws, and therefore was invalid.

The rule in Yang is premised upon the power of Section 7 of the Bill of Rights (Title 1, Section 7, Trust Territory Code). The Bill of Rights guaranteed to the people in the Trust Territory of the Pacific Islands, their civil rights.

[3-4] Pohnpei State is now in a constitutional government. Civil rights of persons in this State are now guaranteed in the Constitution of the Federated States of Micronesia (Art. IV FSM Constitution) and the Pohnpei State Constitution (Art. 4, Pohnpei State Constitution). With respect to the Pohnpei State Constitution, Section 3, which guarantees equal protection reads,

[3 PN.L.R. 234]

"No law or government action may deny or impair the equal rights of all persons on account of gender, race, ancestry, national origin, language, or social status. No person may be denied equal protection of the law."

In contrast, the Trust Territory Bill of Rights, Section 7 reads,

"No law shall be enacted in the Trust Territory which discriminates against any person on account of race, sex, language or religion, nor shall the equal protection of laws be denied."

A comparison of the provisions satisfies this Court that they both intend to guarantee to individuals all civil rights, including equal protection of laws. In fact, the Pohnpei Constitution is more specific in its enumeration of classes of persons that are protected, including persons of different national origin, as in the case of the parties in this matter. I hold therefore that section 202 of Title 39, of the Trust Territory Code is in violation of Article 4, Section 3, of the Pohnpei State Constitution and therefore is invalid.

[5] There is no dispute on the issue of divorce. This Court views the granting of divorce to be appropriate.

Custody of the children is contested on the pleadings. The petitioner desires that custody of all children be awarded to her with right of visitation by the respondent. The respondent on the contrary asks that custody of the oldest son be given to his parents,

[3 PN.L.R. 235]

for his daughter Dela to be given to his sister, and his youngest son to his wife. It is not clear to whom the respondent desires Stephen James be given custody.

[5] The petitioner through counsel represented to this Court that the parents of the respondent, who reside in Pohnpei, are agreeable to the petitioner's keeping custody of the children, with rights of visitation. It is the best interest of the children that this Court will consider foremost. In my opinion, the best interest of the children will be served if they are given in custody to their mother, the petitioner.

Accordingly, it is ORDERED, ADJUDGED and DECREED:

1. The petitioner is granted divorce from the respondent.

2. The custody of all named children to this marriage is awarded to the petitioner, with right of visitation by the respondent and his parents. Provided however that such visits shall be as mutually agreed by and between the parties and those situated under them, as will best suit the interest of the children and the parties.

3. No support is awarded.

[3 PN.L.R. 236]

4. No distribution of properties is awarded.

5. Each party will bear his own cost.

6. This decree will become final after the period of appeal under Rule 3, Appeals, shall expire without an appeal, or after an appeal which may be brought is finally disposed of.

7. This Decree is rendered nuns pro tuncto August 31,1988.


	POHNPEI LAW REPORTS VOL. 3 [3 PN.L.R. 228] ELENITA S. PANGELINAN, Petitioner v. JOHN R. PANGELINAN, Respondent Pohnpei Civil Action No. 113-88 Trial Division of the Pohnpei Supreme Court September 23, 1988 Petition for divorce. Custody of the children was contested on the pleadings. The respondent, a citizen of the Commonwealth of the Northern Marianas living in Saipan, failed to appear although there was on file a return of service showing that he had been served notice of the petition by mail, postage prepaid, addressed to his mailing address in Saipan. The petitioner was a citizen of the Republic of the Philippines, resident in Pohnpei since October 30, 1987. At the time of filing her complaint she had been resident in Pohnpei for less than two years. The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, granting the petition, held that (1) service of notice of the petition by mail was complete upon mailing; (2) jurisdiction vested in the Court under Chapter 1 of Title 39 of the Trust Territory Code, which remained in effect in Pohnpei State; (3) while Article IV of the Constitution of the Federated States of Micronesia and Article 4, Section 3, of the Pohnpei State Constitution guaranteed to individuals all civil rights, including equal protection of laws, the Pohnpei Constitution was more specific in its enumeration of classes of persons thatwere protected, including persons of different national origin; (4) Section 202 of Title 39 of the Trust Territory Code, which provided that "No divorce shall be granted unless one of the parties shall have resided in the Trust Territory for two years immediately preceding the filing of the complaint," was in violation of Article 4, Section 3, of the Pohnpei State Constitution and therefore was invalid; (5) there being no dispute on the issue of divorce, the Court viewed granting of divorce to be appropriate; (6) in determining which parent shall have the custody of the children upon adivorce the Courtwould consider foremostthe best interest of the children. [3 PN.L.R. 229] 1. Civil Procedure - Process - Service Service of notice of petition by mail is complete upon mailing (PNI Rules of Civil Procedure, Rule 56). 2. Courts - Jurisdiction - Divorce The Court has jurisdiction in a divorce case between noncitizens of Pohnpei pursuant to Chapter 1 of Title 39 of the Trust Territory Code which remains ineffect in Pohnpei State. 3. Constitutional Law - Guaranteed Rights While Article IV of the Constitution of the Federated States of Micronesia and Article 4, Section 3, of the Pohnpei State Constitution guarantee to individuals all civil rights, including equal protection of laws, the Pohnpei Constitution is more specific in its enumeration of classes of persons that are protected, including persons of different national origin. 4. Constitutional Law - Statutes - Constitutionality Section 202 of Title 39 of the Trust Territory Code, which provides that "No divorce shall be granted unless one of the parties shall have resided in the Trust Territory for two years immediately preceding the filing of the complaint," is in violation of Article 4, Section 3, of the Pohnpei State Constitution and is therefore invalid. 5. Domestic Relations - Divorce Where there is no dispute on the issue of divorce in a matrimonial cause, the Court views the granting of divorce to be appropriate. [3 PN.L.R. 230] 6. Domestic Relations - Divorce - Custody of Children In determining which parent shall have the custody of the children upon the divorce of the parents, the Court will consider foremost the best interest of the children. Counsel for Petitioner: Sungiwo Hadley Trial Counselor Kolonia, Pohnpei 96941 JUDAH C. JOHNNY, Associate Justice [1] This matter came on to be heard before me in the Trial Division of the Pohnpei Supreme Court on August 31, 1988, in Kolonia, State of Pohnpei. Appearing were the petitioner and her counsel, Sungiwo Hadley, Trial Counselor. The respondent failed to appear, although there was on file a return of service, showing service to have been made on him by mail, postage prepaid, addressed to John R. Pangelinan, P. O. Box 1476, Saipan, CM 96950, on July 18,1988, filed by the Pohnpei State Clerk of Courts. Service by mail is complete upon mailing. Rule 56, Rules of Civil Procedure. Both parties having been properly noticed and return duly filed thereof, this Court may proceed into the consideration of the merits of this case. [3 PN.L.R. 231] FINDINGS OF FACT I found the following facts: 1. The petitioner is a citizen of the Republic of the Philippines, who has resided in the State of Pohnpei since about October 30, 1987. 2. The respondent is a citizen of the Commonwealth of the Northern Mariana Islands, who presently maintains his residence on Saipan, the Northern Mariana Islands. 3. The petitioner and the respondent were united in marriage on Saipan, on December 29, 1978. 4. During the parties' marriage union, the following children were born to them: a. Christopher, male, 8 years old b. Dela, female, 7 years old c. Stephen, male, 4 years old d. Johnson, male, 2 years old 5. The parties were separated and have not cohabited as husband and wife since 1985. 6. No property, real or personal, is at issue. [3 PN.L.R. 232] OPINION [2] Two reliefs are sought in this action, namely for a divorce of the parties from marriage, and the award of custody of the children. Jurisdiction vests in this Court under Chapter l of Title 39 of the Trust Territory Code, which remains in effect in this State. State vs Mack, et al, 2 P.S.Ct.R 269. Particular note is however made of Section 202 of Title 39 of the Trust Territory Code, which reads, "No divorce shall be granted unless one of the parties shall have resided in the Trust Territory for two years immediately preceding the filing of the complaint." It is clear from the facts that neither one of the parties had resided in Pohnpei State for two years. The petitioner has resided in Pohnpei State since October 30, 1987, which is less than a year. The respondent has not resided in Pohnpei. It follows that, if Section 202 of Title 39 remains in effect in this jurisdiction, this Court would not have jurisdiction over this matter. Section 202 of title 39 of the Trust Territory Code was attacked by our predecessor Trust Territory High Court on constitutional grounds, and was held unconstitutional. See Yang vs. Yang, 5 TTR 427 (1971). In Yang, the court by Associate Justice [3 PN.L.R. 233] Arvin Brown held that the equal protection of laws guaranteed in the Bill of Rights, imposes an obligation on all officials not to interfere with the freedom of individuals any more than is reasonably necessary. It held therefore that the two-year residency requirement for granting of divorces in Section 202 of the Trust Territory Code denies a party of equal protection of the laws, and therefore was invalid. The rule in Yang is premised upon the power of Section 7 of the Bill of Rights (Title 1, Section 7, Trust Territory Code). The Bill of Rights guaranteed to the people in the Trust Territory of the Pacific Islands, their civil rights. [3-4] Pohnpei State is now in a constitutional government. Civil rights of persons in this State are now guaranteed in the Constitution of the Federated States of Micronesia (Art. IV FSM Constitution) and the Pohnpei State Constitution (Art. 4, Pohnpei State Constitution). With respect to the Pohnpei State Constitution, Section 3, which guarantees equal protection reads, [3 PN.L.R. 234] "No law or government action may deny or impair the equal rights of all persons on account of gender, race, ancestry, national origin, language, or social status. No person may be denied equal protection of the law." In contrast, the Trust Territory Bill of Rights, Section 7 reads, "No law shall be enacted in the Trust Territory which discriminates against any person on account of race, sex, language or religion, nor shall the equal protection of laws be denied." A comparison of the provisions satisfies this Court that they both intend to guarantee to individuals all civil rights, including equal protection of laws. In fact, the Pohnpei Constitution is more specific in its enumeration of classes of persons that are protected, including persons of different national origin, as in the case of the parties in this matter. I hold therefore that section 202 of Title 39, of the Trust Territory Code is in violation of Article 4, Section 3, of the Pohnpei State Constitution and therefore is invalid. [5] There is no dispute on the issue of divorce. This Court views the granting of divorce to be appropriate. Custody of the children is contested on the pleadings. The petitioner desires that custody of all children be awarded to her with right of visitation by the respondent. The respondent on the contrary asks that custody of the oldest son be given to his parents, [3 PN.L.R. 235] for his daughter Dela to be given to his sister, and his youngest son to his wife. It is not clear to whom the respondent desires Stephen James be given custody. [5] The petitioner through counsel represented to this Court that the parents of the respondent, who reside in Pohnpei, are agreeable to the petitioner's keeping custody of the children, with rights of visitation. It is the best interest of the children that this Court will consider foremost. In my opinion, the best interest of the children will be served if they are given in custody to their mother, the petitioner. Accordingly, it is ORDERED, ADJUDGED and DECREED: 1. The petitioner is granted divorce from the respondent. 2. The custody of all named children to this marriage is awarded to the petitioner, with right of visitation by the respondent and his parents. Provided however that such visits shall be as mutually agreed by and between the parties and those situated under them, as will best suit the interest of the children and the parties. 3. No support is awarded. [3 PN.L.R. 236] 4. No distribution of properties is awarded. 5. Each party will bear his own cost. 6. This decree will become final after the period of appeal under Rule 3, Appeals, shall expire without an appeal, or after an appeal which may be brought is finally disposed of. 7. This Decree is rendered nuns pro tuncto August 31,1988.