Emanuel v. Emanuel

15 V.I. 103, 1978 U.S. Dist. LEXIS 6925
CourtDistrict Court, Virgin Islands
DecidedDecember 7, 1978
DocketCivil No. 34/1969
StatusPublished
Cited by10 cases

This text of 15 V.I. 103 (Emanuel v. Emanuel) is published on Counsel Stack Legal Research, covering District Court, Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Emanuel v. Emanuel, 15 V.I. 103, 1978 U.S. Dist. LEXIS 6925 (vid 1978).

Opinion

MEMORANDUM OPINION

This case requires the court to determine how a child’s emancipation affects the support obligations of the father and to what extent remarriage and the birth of children by that remarriage may also affect those obligations. The court further considers whether the father’s support and alimony obligations, if subject to modification, may be retrospectively modified under Virgin Islands’ law.

The cause came on for hearing on March 2, 1978, on plaintiff’s motion for a reduction of the monthly child support payments required by an April 14, 1970, divorce decree.1 The plaintiff’s principal basis for the reduction was the emancipation of the eldest of the three children born of the parties.2 The plaintiff also asked for a retrospective modification of the decree to December 19, 1976, the date of Alexander Emanuel’s eighteenth birthday, and that such reduction be set off against a large arrearage accrued from the date of the divorce. Assuming that a substantial change of circumstances can be shown, Viles v. Viles, 4 V.I. 415, 316 F.2d 31 (3d Cir. 1963), four issues confront the Court:

(1) Is an unsegregated monthly support payment to be [107]*107automatically reduced upon the emancipation of one of three children;
(2) What effect, if any, may remarriage and new-born children have upon one’s support obligations;
(3) May support obligations be retrospectively reduced; and
(4) Assuming retrospective reduction is permissible, is a setoff of a sum against accrued arrearages allowable.

I.

The parties were divorced on April 14, 1970. Plaintiff, then nearing the end of his doctoral studies at Howard University, was ordered to pay $6,500.00 as alimony at the rate of $100.00 per month and $300.00 per month as support for the three minor children of the parties. The testimony of the plaintiff, standing alone, suggests that the inquiry at the time of the divorce into his present or future financial circumstances was cursory at best. Although neither the findings of fact nor the decree makes it clear, this court assumes that the plaintiff’s wherewithal to pay $400.00 per month derived partly from income he was receiving from property awarded him as part of the divorce, and partly in expectation of his future earning capacity as holder of a doctorate degree. See discussion infra at 119,120.

Regardless of what the court anticipated the plaintiff’s income would be to justify the alimony and child support payments ordered in 1970, it is clear that plaintiff’s fortunes have taken an unanticipated decline in the eight intervening years. The once successful business enterprise on the plaintiff’s property failed. A substantial attempt by him personally to finance and manage a similar enterprise also failed, and the plaintiff even now is obligated to various creditors for advances lost in that failure. Rental of his property has been intermittent and irregu[108]*108lar. Although the property currently yields rental income, the enterprise — a discotheque — has been chronically erratic in the past and cannot be considered seriously as a viable source of long-term income. Plaintiff, who after receiving his doctorate secured a teaching position at the College of the Virgin Islands, has lost that position, and has not since taught at the educational or salary level that his doctorate should command. Only recently did the plaintiff find regular employment as a teacher at the high school level, after a long series of temporary and menial odd jobs.

Both parties have remarried. Plaintiff has had two children by his second wife, and must contribute to their support and to his current homestead. Testimony at trial also revealed that he now faces foreclosure on his second family’s present home and the loss of any equity in it.

As a result of the financial difficulties voluntarily assumed and unexpectedly imposed upon Lezmore Emanuel, an extraordinary arrearage has accrued since the divorce. As of February 1, 1978, that sum was $17,950.00. Though $50.00 of a $350.00 monthly payroll deduction currently is being applied to reduce the arrearage, it is plaintiff’s position that he can no longer afford even that small payment toward the arrearage.

Plaintiff’s inability to fulfill the obligations of the divorce decree has resulted in frequent court appearances by both parties. As early as June 25, 1971 — a little more than a year after the divorce — the plaintiff was ordered to pay an arrearage of $1,375.00, which had accrued to that date. The plaintiff on December 13, 1971, filed a motion for modification of the alimony and support obligations; no action was taken by the court. The defendant on December 20, 1972, moved for an increase in child support; no action was taken by the court. The plaintiff on April 9, 1974, filed a verified motion for an order to amend the [109]*109judgment. In his motion he implied that he lost his job at the College of the Virgin Islands, and said that he had no regular employment or salary and that he was living on what he could make from odd jobs. There is no recorded court response to that motion, a hearing on the matter apparently never having occurred. A stipulation between the parties, which was submitted on November 23, 1976, resulted in the present payroll deduction. Plaintiff now seeks a reduction of the payment required by that stipulation.

That the plaintiff previously and often has sought equitable relief is plain. Nevertheless, he has been allowed to owe more and more in spite of his representations that he could pay less and less. As a result, his overdue payments have turned into an enormous arrearage. Payment of the arrearage at the current rate of $50.00 per month will have to continue past his life expectancy in order for the debt to be satisfied. The arrearage burden in the context of the past and current financial crises of the plaintiff, when contrasted with the defendant’s current financial status, are circumstances this court has considered in determining the reasonableness of the current obligations of Lezmore Emanual to the former Sonia Emanuel.

II.

A.

Statutory authority and case law in this jurisdiction clearly establish that this court has the power to modify divorce decrees. 16 V.I.C. § 110 expressly states:

At any time after a judgment is given the court, upon the motion of either party on notice, may set aside, alter or modify so much of the judgment as may provide alimony or for the appointment of trustees, for the care and custody of the minor children, or the [110]*110nurture and education thereof, or the maintenance of either party-in the action.3

In Viles v. Viles, supra, the Third Circuit affirmed a District Court modification of the terms of a divorce decree to provide for an eventuality that had not been clearly provided for by the original decree.

We now make explicit what that decision necessarily implied, that the District Court of the Virgin Islands has power to modify a decree such as that originally entered in the instant case.

4 V.I. at 421, 316 F.2d at 34. While Viles dealt solely with alimony payments, the power conferred by 16 V.I.C. § 110 applies to child support as well. Therefore, 16 V.I.C.

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Cite This Page — Counsel Stack

Bluebook (online)
15 V.I. 103, 1978 U.S. Dist. LEXIS 6925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emanuel-v-emanuel-vid-1978.