FSM SUPREME COURT
TRIAL DIVISION
Cite as Youngstrom v. Youngstrom ,
5 FSM Intrm. 335 (Pon. 1992)

[5 FSM Intrm. 335]

VERNON YOUNGSTROM,
Petitioner,

v.

NEWS YOUNGSTROM,
Respondent.


FSM CIV. 1990-067

OPINION
 
Before Honorable Andon L. Amaraich
Associate Justice
Trial: June 17, 1992
Decided:  July 3, 1992

APPEARANCES:
For the Petitioner:         Martin S. Mix
                                        Attorney at Law
                                        P.O. Box 196
                                        Kolonia, Pohnpei  FM 96941

For the Respondent:     Daniel J. Berman
                                        Attorney at Law
                                        Rush, Moore, Craven, Sutton, Morry and Beh
                                        P.O. Box 1491
                                        Kolonia, Pohnpei  FM 96941

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HEADNOTES
Jurisdiction - Diversity
     National court can exercise jurisdiction over divorce cases where there is diversity of citizenship although domestic relations are primarily the subject of state law.  Youngstrom v. Youngstrom, 5 FSM Intrm. 335, 336 (Pon. 1992).

Domestic Relations
     Since a divorce case involves the status or condition of a person and his relation to other persons the law to be applied is the law of the domicile.  Youngstrom v. Youngstrom, 5 FSM Intrm. 335, 337 (Pon. 1992).

Domestic Relations
     Under the law of Pohnpei a court may award child custody and if necessary

[5 FSM Intrm. 336]

order child support.  The standard to be applied is the "best interests of the child."  Youngstrom v. Youngstrom, 5 FSM Intrm. 335, 337 (Pon. 1992).

Federalism - Abstention and Certification; Equity
     Where there is a long delay in moving for certification of an issue and it appears the motion's sole purpose is to cause further delay, the doctrine of laches may bar the granting of the motion.  Youngstrom v. Youngstrom, 5 FSM Intrm. 335, 337-38 (Pon. 1992).

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COURT'S OPINION
ANDON L. AMARAICH, Associate Justice:
     This divorce case is in this Court pursuant to the diversity of citizenship jurisdiction conferred on this Court by section 6(b) of article XI of the Constitution. The petitioner husband, Vernon Youngstrom, is a citizen of Kosrae and a domiciliary of the State of Pohnpei. The respondent wife, News Youngstrom, is a citizen and domiciliary of the Republic of the Marshall Islands.  This Court can exercise jurisdiction over divorce cases where there is diversity of citizenship although domestic relations are primarily the subject of state law.  Pernet v. Aflague, 4 FSM Intrm. 222, 224 (Pon. 1990); Mongkeya v. Brackett, 2 FSM Intrm. 291, 292 (Kos. 1986).

     The petitioner originally filed his complaint on August 16, 1990, for the confirmation of a customary divorce.  The respondent's answer was filed on October 15, 1990, and counterclaimed for a divorce under statute, and sought the award of child support for the five children living with her.  The petitioner's answer to the counterclaim, filed October 18, 1990, asserted that Kosrae custom did not obligate him to pay child support for children not living with him.

     The parties were married on Kosrae and spent much of their married life there.  It appears that at least two years were spent in the Marshalls, and that some time was spent on Guam.  In 1984, the respondent, News, left Kosrae for the Marshalls with five of the six children of their marriage.  The petitioner, Vernon, moved to Pohnpei in 1986 and has been resident there ever since.

MOTIONS DECIDED
     There are two motions before the Court.  Oral argument on these motions was heard by the Court on June 17, 1992.  The first motion, filed by the petitioner on February 5, 1992, is to certify to a Kosrae Court the question of whether, under Kosrae custom, the father owes a duty of child support when the children are not living with him.  The Court has the legal authority to do this for state law issues. "[T]his Court has found an inherent power of its own to certify state law issues to state courts."  Edward v. Pohnpei, 3 FSM Intrm. 350, 361 (Pon. 1988).  Apart from the practical difficulties this

[5 FSM Intrm. 337]

presents because there is no appellate division in the Kosrae State Court (appeals from trials in the Kosrae State Court are made to the appellate division of this Court) there are other sound reasons to deny this motion.

     In a diversity of citizenship case this Court will normally apply state law.  A divorce case is one which involves the status of persons and their relationship to one another.  Normally, the law of the person's domicile will apply.  "The status or condition of a person and his relation to other persons are fixed by the law of his domicile."  In re Kihleng, 1 P.S. Ct. R. 2, 7 (1984) (citing 24 Am. Jur. 2d Divorce and Separation 27).  Additionally, the Court notes:

     The subject of divorce occupies a unique position in the realm of international law in that not only the form of the action, but the basis as well, is governed by the law of the forum, and by that alone.  Contrary to the rule in other forms of action, the court of the forum will never apply the law of any other state or nation to determine the rights of the parties, no matter how closely the parties and the alleged cause of action may be identified with such other state or nation.

24 Am. Jur. 2d Divorce and Separation 27, at 210-11.

     The petitioner has been domiciled in the State of Pohnpei for the past six years.  The law of Pohnpei should, therefore, apply to the determination of whether he has an obligation to provide child support for the children living with the respondent.  The Pohnpei State Supreme Court has held that it has the authority to award custody of a minor child to the mother and, if necessary, order payment of child support.  In re Kihleng, 1 P.S. Ct. R. at 10.  The standard involved is "the best interests of the child . . . as is consistent with his wholesome bringing up and proper nurturing."  Id.  See also Pernet v. Aflague, 4 FSM Intrm. 222, 225 (Pon. 1990); Solomon v. Alfons, 2 P.S. Ct. R. 111, 127-29 (Tr. 1986).
 
     Additionally, the motion should be denied on the grounds of laches.  The petitioner filed his motion to certify this question to Kosrae state courts on February 5, 1992, more than fifteen months after his answer to the counterclaim pled Kosrae custom as a defense to child support.  This motion was only filed after counsel for both parties had notified the Court that his case was ready for trial.

     The doctrine of laches "is based upon the maxim that equity aids the vigilant and not those who slumber on their rights.  It is defined as neglect to assert right or claim which, taken together with lapse of time and other circumstances causing prejudice to adverse party, operates as a bar in court of equity."  Black's Law Dictionary 787 (5th ed. 1979) (citations omitted).

     This Court has noted that the primary disadvantage of certification is the delay involved.  "Certification is a rather cumbersome procedure which

[5 FSM Intrm. 338]

will typically cause delay and increase the cost of litigation."  Edwards, 3 FSM Intrm. at 362.   In Edwards certification was ordered by the Court because there was "no indication that the defendants [we]re intentionally using the certification request as a ploy to delay the litigation."  Id. at 364.

     The petitioner in this case was fully aware of the fact that this Court cannot consider the respondent's motion for child support pendente lite or award child support at trial until after his motion is decided, or if granted, until after the certified question has been answered.  Considering that he was aware of the respondent's counterclaim for child support and had raised his defense of Kosrae custom fifteen months before he filed this motion for certification, it would appear that the sole purpose of this motion is to delay any award of child support. Therefore the Court concludes that the petitioner has neglected to assert the right to move for certification of the question to a Kosrae state court, and that such delay prejudices the respondent.

     The motion for certification of questions to Kosrae State Court is accordingly denied. This motion having been denied the Court may then consider the respondent's Motion for Child Support Pendente Lite.

     The respondent seeks child support pendente lite for the five children now in her custody.  Child support pendente lite is authorized by statute.  6 F.S.M.C. 1754.  Statute further instructs that the "[d]uties of support applicable under this chapter are those imposed under the laws of any jurisdiction where the obligor was present for the period during which support is sought."  6 F.S.M.C. 1731. The obligor, Vernon Youngstrom, is present and domiciled in Pohnpei.  Under the law of Pohnpei he has a duty of child support.

     Now therefore it is hereby ordered that the petitioner, Vernon Youngstrom, pay the respondent, News Youngstrom, the sum of $30 per month for each of the five children in her custody until each of them reaches the age of eighteen or until this order is otherwise modified.  Payment is to be made by the twentieth day of each month, starting July 20, 1992.

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