For Publication IN THE SUPREME COURT OF THE VIRGIN ISLANDS STEPHEN EVANS-FREKE, ) S. Ct. Civ. No. 2022-0046 Appellant/Petitioner, ) Re: Super. Ct. Cs. No. 166/2016 (STT) ) v. ) ) VALERIE EVANS-FREKE, ) Appellee/Respondent. ) ) )
On Appeal from the Superior Court of the Virgin Islands District of St. Thomas/St. John Superior Court Judge: Hon. Debra S. Watlington
Argued: June 13, 2023 Filed: October 13. 2023
Cite as 2023 VI 12
BEFORE: RHYS S. HODGE, Chief Justice; MARIA M. CABRET, Associate Justice, and IVE ARLINGTON SWAN, Associate Justice.
ATTORNEYS:
Andrew L. Capdeville, Esq. (argued) Law Offices of Andrew L. Capdeville P.C. St. Thomas, U.S.V.I.
Justin K. Holcombe, Esq. Dudley Newman Feuerzeig, LLP St. Thomas, U.S.V.I. Attorneys for Appellant,
Julie German Evert, Esq. (argued) Law Offices of Julie German Evert St. Thomas, U.S.V.I.
Laura C. Nagi, Esq. Laura Castillo Nagi, Attorney & Counselor at Law, PLLC St. Thomas, U.S.V.I. Attorneys for Appellee. Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 2 of 20
OPINION OF THE COURT HODGE, Chief Justice.
¶1 Appellant Stephen Evans-Freke appeals from the Superior Court’s August 23, 2022 order,
which directed Stephen to pay his former spouse Valerie pendente lite support in the form of $7,500
in cash monthly, $5,000 credit card access per month with unused funds to rollover to the next
month amounting to no more than $60,000 per year, and a one-time sum of $350,000 for legal
expenses as Valerie’s counsel determines. For the reasons that follow, we reverse the Superior
Court’s August 23, 2022 order and remand the case to the Superior Court so that it may promptly
deal with the only issue remaining in this case—the distribution of marital property.
I. BACKGROUND
¶2 The parties met in 1984 when Valerie was 29 years old.1 At that time, Valerie was working
as a model, but stopped working in 1989 and has not worked since then. The parties were married
on December 27, 1990 in Norfolk, Connecticut. They had two children, both of whom are now
adults. In 1999, the parties purchased a 37-acre estate in Tuxedo Park, New York, which remains
Valerie’s residence to date. They acquired several other properties during the time they were
married. Stephen provided for Valerie throughout the marriage and has always managed the
finances. In 2008, Stephen moved to the U.S. Virgin Islands to form businesses, at which time he
began renting a home in St. Thomas, while Valerie remained in New York. Stephen has resided in
the Virgin Islands since moving to St. Thomas in 2008 and has continued to be Valerie’s only
source of financial support.
1 Because both parties possess the same last name, they are herein referred to by their first names to minimize confusion. Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 3 of 20
¶3 On November 14, 2016, Stephen filed a petition for divorce in the Virgin Islands Superior
Court seeking dissolution of his marriage to Valerie. While Stephen’s petition was pending, Valerie
filed a separate petition for divorce in New York on February 17, 2017. However, on February 21,
2017, Valerie also filed an answer to the divorce petition Stephen filed with the Virgin Islands
Superior Court, which admitted the irreconcilable breakdown of the marriage, but asserted lack of
personal jurisdiction and forum non conveniens as affirmative defenses. Valerie did not request
any affirmative relief from the Superior Court in her answer, such as a request for an alimony
award, nor did she move for an order of pendente lite support in accordance with section 108, title
16 of the Virgin Islands Code.
¶4 The New York court dismissed Valerie’s divorce petition on forum non conveniens grounds,
finding that the Virgin Islands was a more appropriate forum. The Superior Court of the Virgin
Islands later dismissed Stephen’s petition, finding that it did not have personal jurisdiction over
Valerie. On appeal, this Court determined that the Superior Court erred in its dismissal and ordered
the Superior Court to assume jurisdiction, immediately enter a decree of divorce, and exercise
jurisdiction over all outstanding issues that remained between the parties. Evans-Freke v. Evans-
Freke, 75 V.I. 407, 423 (V.I. 2021).
¶5 The Superior Court ultimately issued a divorce decree on February 14, 2022. In its divorce
decree, the Superior Court dissolved the marriage between Stephen and Valerie, and stated that it
would defer distribution of the parties’ jointly-owned real and personal property for a later
determination. In the findings of fact and conclusions of law accompanying the February 14, 2022
divorce decree, the Superior Court further found that “[t]he parties have neither waived nor
asserted their right to alimony.” (J.A. 39.) Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 4 of 20
¶6 On March 11, 2022, Valerie filed an emergency motion for pendente lite support, payment
of expert forensic accountant fees and costs, and attorney’s fees and costs pendente lite. The
Superior Court held an emergency hearing on the motion on June 2 and June 3, 2022. The Superior
Court heard testimony from Valerie, Stephen, Daniella Kauffman—the comptroller for Auven
Therapeutics Management Company, Stephen’s primary company in the Virgin Islands, and
Gregory Cowhey—Valerie’s expert forensic accountant witness. The parties submitted various
exhibits including Stephen’s financial affidavits, Valerie’s financial affidavit (testified to at the
hearing but not included in the record), and photographs of repairs needed for the Tuxedo Park
home.
¶7 At the emergency motion hearing, Valerie testified to having savings in the approximate
amount of $176,300; however, her only source of income was the $5,000 cash paid to her monthly
by Stephen and access to $5,000 per month on his American Express credit account. Stephen also
paid for Valerie’s household expenses including mortgage payments, utility fees, electricity, social
club membership, cell phone expenses, and home entertainment allowance, among other things.
Valerie testified that her monthly expenses included food, gas, entertainment, monthly tolls,
parking, dry cleaning, and travel, asserting that her monthly expenses were upwards of $26,217.
¶8 Stephen testified that his current net worth, as of March 31, 2022, was approximately $25
million and that he earns between $50,000 to $70,000 from his companies’ monthly distributions,
which income he uses to support his three sons, two of whom are adults,2 and Valerie. Stephen
currently lives in a five-bedroom house located in Estate Nazareth, St. Thomas, Virgin Islands,
2 Stephen explained that he supports one of his adult sons because of his health issues which Stephen covers as needed, and to the other son Stephen gives over $100,000 annually to help him with his two startup companies. Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 5 of 20
with his current wife, and the monthly rent is $12,000. Stephen testified that he is currently in the
midst of financial hardship due to his Virgin Islands company, Auven Therapeutics, being in breach
of its loan covenant and the fact that most of his wealth is in assets which are not currently liquid.
He stated that he is struggling to pay his bills which include $35,000-$40,000 monthly in support
to Valerie, an additional $40,000 monthly in support to his children, approximately $18,000
monthly towards his personal living expenses in St. Thomas, and the payroll for all of his
employees.
¶9 Valerie’s expert witness, Gregory Cowhey with the firm RSM US LLP, testified at the
emergency motion hearing as an expert forensic accountant. He also submitted an affidavit to the
Superior Court declaring that after a review of Stephen’s tax returns, he found several
inconsistencies. Cowhey asserted that Stephen’s tax returns from 2020 show an income of millions
of dollars and that over the last five years, Stephen’s after-tax annual income was approximately
$5.75 million.
¶ 10 On August 22, 2022, the Superior Court entered an order directing Stephen to pay Valerie
$7,500 cash per month and to provide $5,000 credit card access per month with unused funds to
rollover to the next month amounting to no more than $60,000 per year. It also ordered Stephen
to pay a one-time sum of $350,000 for legal expenses, to be expended as Valerie’s counsel
determines. Stephen timely filed a notice of appeal with this Court on August 28, 2022. See V.I.
R. APP. P. 5(a)(1).
II. DISCUSSION
A. Appellate Jurisdiction
¶ 11 Prior to considering the merits of an appeal, this Court must first determine whether it has
appellate jurisdiction over the matter. V.I. Gov' t Hosps. & Health Facilities Corp. v. Gov't of the Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 6 of 20
V.I., 50 V.I. 276, 279 (V.I. 2008). This Court typically possesses jurisdiction only over “appeals
arising from final judgments, final decrees or final orders of the Superior Court.” 4 V.I.C. § 32(a);
48 U.S.C. § 1613a(d). Section 32(a) embodies the final judgment rule, which generally requires
parties to “raise all claims of error in a single appeal following final judgment on the merits.”
Enrietto v. Rogers Townsend & Thomas PC, 49 V.I. 311, 315 (V.I. 2007).
¶ 12 In her appellate brief, Valerie asserts that this Court lacks jurisdiction to hear this appeal
because the Superior Court’s August 23, 2022 order is not a final judgment. According to Valerie,
the August 23, 2022 order awarded pendente lite support pursuant to section 108, title 16 of the
Virgin Islands Code, and thus does not constitute an appealable final judgment because section
108 identifies such orders as “interlocutory.” Valerie also insists that the underlying divorce
proceeding has not been concluded since the Superior Court has not yet issued an order distributing
the parties’ marital assets. Stephen, however, contends that this Court possesses jurisdiction over
this appeal on grounds that the August 23, 2022 order constitutes an appealable injunction pursuant
to section 33(b)(1), title 4 of the Virgin Islands Code because the Superior Court provided Valerie
with substantive relief in more than a temporary fashion.
¶ 13 Yet regardless of the parties’ arguments for and against the existence of appellate
jurisdiction, the determination of whether such jurisdiction does or does not exist—and on what
basis—is ultimately one that belongs to this Court. See Williams v. People, 58 V.I. 341, 346 n.4
(V.I. 2013) (citing H&H Avionics, Inc. v. V.I. Port Auth., 52 V.I. 458, 460 (V.I. 2009)). Importantly,
this Court is not bound to consider only the arguments made by the parties because subject matter
jurisdiction is an issue to which traditional concepts of waiver do not apply. See Ottley v. Estate
of Bell, 61 V.I. 480, 488 n.4 (V.I. 2014). Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 7 of 20
¶ 14 As a threshold matter, the Superior Court certainly entered at least one final judgment in
this case. As noted earlier, the Superior Court issued a divorce decree on February 14, 2022, which
granted Stephen’s petition, dissolved the parties’ marriage, and retained jurisdiction only with
respect to division of the parties’ marital assets. Pursuant to section 109, title 16 of the Virgin
Islands Code, titled “Final Orders,” a decree entered by the Superior Court which dissolves a
marriage is a final order. The reason for this is obvious: orders that are non-final or interlocutory
“remain[] open for reconsideration by the trial court,” Greene v. V.I. Water & Power Auth., 67 V.I.
727, 734 (V.I. 2017), while final orders are not subject to plenary reconsideration by the Superior
Court but may only be modified “in certain specifically enumerated circumstances.” In re
Welcome, 58 V.I. 236, 250 (V.I. 2013). This remains the case even when a court issues a divorce
decree but does not adjudicate all outstanding issues, such as child custody or—in this case—
division of marital assets:
When a court retains jurisdiction to consider requests for ancillary relief, following the entry of a divorce decree, each final ruling on a request for a specific type of ancillary relief is directly and separately appealable; all rulings that are made within the context of a particular ancillary proceeding are not necessarily final, however, and, therefore, are not necessarily appealable as a matter of right.
Final Divorce Judgments, Generally, 24 AM. JUR. 2D Divorce and Separation § 373 (collecting
cases). This is because Virgin Islands law—like the laws of most if not all United States
jurisdictions—prohibits the parties to a divorce action from remarrying until the judgment
dissolving the marriage is granted and “the action has been heard and determined on appeal” or
the time to take such an appeal has expired. See 16 V.I.C. § 111. Thus, if a divorce decree were
not a final judgment immediately appealable as of right, but instead an interlocutory order that
does not become final until every single issue in the divorce proceeding is resolved, the parties are
effectively precluded from remarrying, since any new marriage could become void if the Superior Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 8 of 20
Court, for whatever reason, chooses to vacate the divorce decree and undo the dissolution of the
parties’ marriage. See State v. Hendricks, 372 P.3d 437, 440 (Kan. Ct. App. 2016) (rejecting the
argument that divorce decrees are not final if the court retains jurisdiction to address other issues,
such as child custody, because such a holding “would cause highly negative, unintended
consequences that would be a surprise to Kansas divorce practitioners and to most Kansans who
have been divorced and remarried,” since “standard decrees . . . would not constitute final
judgments, making voidable the new marriages of previously divorced Kansans”). In fact, in the
opinion adjudicating the prior appeal in this very case, this Court acknowledged that one of the
benefits of the legal concept of divisible divorce—that is, the Superior Court ordering the
dissolution of the marriage while retaining jurisdiction to resolve other issues at a future date—is
permitting the parties to immediately remarry. Evans-Freke, 75 V.I. at 422 n.4. This would not be
permitted under section 111, title 16 of the Virgin Islands Code unless the divisible divorce decree
were a final judgment which could be immediately appealed as of right.
¶ 15 The question, then, is not whether a final judgment has been entered, since the February
14, 2022 divorce decree constituted a final judgment which neither party appealed to this Court.
Rather, the issue is whether the August 23, 2022 order constitutes a second final judgment that is
separately appealable in its own right.
¶ 16 In this case, both Stephen and Valerie appear to agree that the August 23, 2022 order is not
a “final judgment[], final decree[] or final order[] of the Superior Court” within the meaning of
section 32(a), title 4 of the Virgin Islands Code. Rather, they both brief the issue of jurisdiction on
the premise that the Superior Court entered a pendente lite support order pursuant to section 108,
title 16 of the Virgin Islands Code and that a pendente lite support order entered pursuant to section
108 is interlocutory and only immediately appealable pursuant to a recognized exception to the Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 9 of 20
final judgment rule, such as the allowance for appeals of orders granting, denying, or modifying
injunctions. See 4 V.I.C. § 33(b)(1).
¶ 17 However, the parties’ assumption that the August 23, 2022 order is an interlocutory order
providing for pendente lite support under section 108 is mistaken. To be sure, the August 23, 2022
order is titled “Pendente Lite Order,” states that it is granting Valerie’s motion for pendente lite
support, and cites section 108 as the basis for its power and authority to issue a temporary support
order. Moreover, it is well-established that “pendente lite” is used to describe something that is
effective “while the action is pending[; d]uring the proceedings or litigation.” BLACK’S LAW
DICTIONARY 1248 (9th ed. 2009); see also 1 V.I.C. § 42 (words and phrases that have “acquired a
peculiar and appropriate meaning in the law, shall be construed and understood according to their
peculiar and appropriate meaning”); Greer v. People, 74 V.I. 556, 580 (V.I. 2021) (same). Yet this
Court has repeatedly held that “[t]he determination of whether a particular order is appealable rests
on its content and substance, not its form or title.” Simpson v. Bd. of Dirs. of Sapphire Bay
Condominiums West, 62 V.I. 728, 730 (V.I. 2015) (quoting In re People, 51 V.I. 374, 383 (V.I.
2009)); accord, Island Tile & Marble, LLC v. Bertrand, 57 V.I. 596, 611-612 (V.I. 2012) (“[T]his
Court has repeatedly held ‘that the substance of a motion, and not its caption, shall determine under
which rule that motion is construed.’”). In fact, this Court has recently held that the fact that the
Superior Court expressly labels a child custody order as “interim” or “temporary” in a domestic
relations case is not dispositive if the “order resembles—in every way other than the ‘interim’
designation—a complete resolution of the custody claims pending between the parties.” James v.
O’Reilly, 70 V.I. 990, 996 (V.I. 2019) (internal quotation marks and citations omitted).
¶ 18 To determine whether the August 23, 2022 order is, or is not, an interlocutory pendente lite
support order, this Court must consider the plain text of the statute authorizing the Superior Court Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 10 of 20
to enter such an order. Section 108, title 16 of the Virgin Islands Code, titled “Interlocutory
Orders,” provides, in relevant part, that
After the commencement of an action, and before a judgment therein, the court may, in its discretion, provide by order- (1) that a party in need obtain from the other party such funds as may be necessary to enable the party in need to prosecute or defend the action, as the case may be; .... (3) for the freedom of the wife from the control of the husband during the pendency of the action and the court may restrain either or both parties from disposing of the property of either party pending the action.
(emphasis added). The clear purpose of subsections 108(1) and (3) is to implement the provisions
of section 342, title 16 of the Virgin Islands Code, which provides that a “husband and wife” “are
obliged to support each other,” 16 V.I.C. § 342(a)(1), by ensuring that the spouse with greater
means continues to provide necessary support to the spouse of lesser means for the period between
commencement of the divorce action and entry of a judgment dissolving the marriage. This
statutory framework is consistent with longstanding practices employed in other jurisdictions,
which prohibit entry of a pendente lite order after the court has already dissolved the parties’
marriage.3 See, e.g., Vinson v. Vinson, 190 So. 454, 461 (Fla. 1939) (“[T]he only foundation for
an order for alimony, suit money and counsel fees pendente lite is the continued existence of the
3 Apparently recognizing this limitation, in Section II of his opposition to Valerie’s motion for pendente lite support, Stephen argued to the Superior Court that section 108 does not allow for an award of pendente lite support or other funding after a judgment is entered. (J.A. 85-86.) The opposition specifically argued that “[t]he language of 16 V.I.C. § 108, which is the basis for Valerie’s motion, is very clear. It states that an interlocutory order may only be entered ‘[a]fter the commencement of an action, and before a judgment therein . . . ” (emphasis in original) and concluded with “[i]n this case, a judgment already has been entered and the parties are divorced. Therefore, based on the plain language of the statute, this Court should deny Valerie’s motion . . . .” (J.A. 86.) Despite raising these arguments before the Superior Court, Stephen has not renewed these arguments on appeal. Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 11 of 20
marriage between the parties.”); Winchester v. Winchester, 113 A. 584, 584 (Md. 1921) (holding
that the right to an allowance for attorney’s fees “rests upon the existence of the marital relation”)
(collecting cases).
¶ 19 The powers of the Superior Court in a divorce action are further set forth in section 109,
title 16 of the Virgin Islands Code, titled “Final Orders.” That statute provides, in pertinent part,
that
Whenever a marriage is declared void or dissolved the court may, without regard to any determination that the breakdown of the marriage was the fault of one party or the other, further decree: .... (3) for the recovery for a party determined to be in need thereof an amount of money in gross or in installments, as may be necessary for the support and maintenance of such party[.]
16 V.I.C. § 109(a)(3). In other words, section 109(a)(3) permits the Superior Court, after granting
a divorce, to mandate that the former spouse with greater means continue to provide monetary
support to the former spouse with lower means—commonly known as alimony—even though the
obligation for the spouses to support each other pursuant to section 342(a)(1) has terminated
because they are no longer husband and wife by virtue of the divorce decree. And as reflected by
the very title of section 109, an order directing a party to pay alimony after issuance of a divorce
decree is a final order. See, e.g., Berrios-Rodriguez v. Berrios, 58 V.I. 477, 480 (V.I. 2013).
¶ 20 Here, despite labeling it a “Pendente Lite Order,” the Superior Court’s August 23, 2022
order was not an interlocutory pendente lite support order issued pursuant to section 108, but rather
a final order of alimony issued pursuant to section 109.4 Section 108, by its own terms, only
4 In fact, in the prior opinion rendered in this very case, this Court cited to section 109(a)(3)—and not section 108—as the legal basis for the Superior Court to order the support and maintenance of Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 12 of 20
permits the Superior Court to issue a pendente lite support order for the period “[a]fter the
commencement of an action, and before a judgment therein.” In this case, the record reflects that
Stephen commenced the action on November 14, 2016, Valerie filed an answer on February 21,
2017, without requesting either pendente lite support or an alimony award, and the Superior Court
issued its divorce decree several years later, on February 14, 2022, which noted that neither of the
parties requested alimony and that it would only reserve the issue of division of marital assets for
resolution at a future date. Consequently, the authority of the Superior Court to issue pendente lite
support terminated on February 14, 2022, in that it had entered “a judgment” on the divorce
petition, from which no appeal was taken within the time allowed. See Penn v. Mosley, 67 V.I.
879, 891 n.4 (V.I. 2017) (explaining that a “decree” is a type of “judgment”). And having granted
the divorce, section 109(a)(3) constitutes the only statutory authority for the Superior Court to
order Stephen to pay money to Valerie for support and maintenance. See Gov’t of the V.I. v.
Lorillard, 358 F.2d 172, 175 (3d Cir. 1966) (“[T]he Virgin Islands statutes do not impose upon the
former husband after divorce the duty to support his former wife, except as such support is imposed
by the decree of divorce under the authority of 16 V.I.C. §§ 109(3) and 110.”). And as noted above,
the very title of section 109 reflects that such an order is a “final order,” and this Court possesses
jurisdiction to hear “appeals arising from final judgments, final decrees or final orders of the
Superior Court.” 4 V.I.C. § 32(a).
¶ 21 This interpretation is consistent with the Virgin Islands Rules of Family Division
Procedure, which went into effect on June 1, 2019, expressly providing that all provisional
an economically vulnerable ex-spouse after the granting a divisible divorce but before the resolution of other issues, such as the division of marital property. Evans-Freke, 75 V.I. at 422 n.4. Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 13 of 20
orders—including pendente lite orders and orders awarding interim attorney’s fees—automatically
terminate when:
(1) the final decree is entered subject to right of appeal; or (2) the petition for dissolution or legal separation is dismissed; or (3) the court amends or vacates the order.
V.I. R. FAM. P. 4(g). Since pendente lite and interim attorney’s fees orders automatically terminate
upon entry of a final decree, it necessarily follows that the Superior Court cannot enter a pendente
lite order or interim attorney’s fees order for the first time after it has issued an appealable decree
granting the divorce. Consequently, in light of the relevant statutory framework, this Court
concludes that it possesses jurisdiction over this appeal.
B. Standard of Review
¶ 22 The Superior Court’s rulings with respect to alimony and attorney’s fees and costs are
reviewed for abuse of discretion, “unless the Superior Court based its alimony award on a
misapplication of the law or a clearly erroneous factual finding.” Berrios-Rodriguez, 58 V.I. at
480; In re Guardianship of Smith, 58 V.I. 446, 449 (V.I. 2013) (“This Court reviews the Superior
Court’s ruling on a motion for attorney’s fees and costs for abuse of discretion.”). Given the fact-
intensive nature of an alimony determination, we ordinarily afford the Superior Court “a great deal
of discretion with respect to its ultimate determination.” Harvey v. Christopher, 55 V.I. 565, 577
(V.I. 2011). We exercise plenary review of the Superior Court’s application of law, Edward v. GEC,
LLC, 67 V.I. 745, 752 (V.I. 2017) and over questions relating to the Superior Court’s subject matter
jurisdiction. Drayton v. Drayton, 65 V.I. 325, 332 (V.I. 2016).
C. Authority to Award Alimony and Attorney’s Fees
¶ 23 In his appellate brief, Stephen challenges the merits of the Superior Court’s August 23,
2022 order on numerous grounds. However, as noted above, the Superior Court lacked the Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 14 of 20
authority to award pendente lite support under section 108, given that it had already entered a
judgment in the divorce action which dissolved the parties’ marriage and, by extension, terminated
Stephen’s obligation to support Valerie pursuant to section 342. Rather, the Superior Court’s
authority to order Stephen to make support and maintenance payments to Valerie, or to fund
Valerie’s ongoing legal expenses, could only arise under section 109, which permits the Superior
Court, after issuing a divorce decree, to further decree “for the recovery for a party determined to
be in need thereof an amount of money in gross or in installments, as may be necessary for the
support and maintenance of such party.” 16 V.I.C. § 109(a)(3).
¶ 24 What complicates the granting of such relief in this case, however, is that Valerie did not
assert a claim for pendente lite support or alimony in her February 21, 2017 answer, nor did she
make such a request at any time in the intervening five years before the Superior Court issued the
February 14, 2022 divorce decree. Rather, Valerie sought this relief for the very first time in her
March 11, 2022 motion. The question, then, is whether the Superior Court possessed the authority
to order Stephen to make support and maintenance payments to Valerie in its August 23, 2022
order, when Valerie requested this relief for the very first time only after the divorce had already
been granted with the Superior Court only retaining jurisdiction to distribute the parties’ marital
assets at a later date.
¶ 25 We conclude that the Superior Court lacked the authority to award alimony at such a late
stage in the proceedings. This Court has previously noted that in a cause of action for alimony,
the party seeking alimony “bears the burden of proof.” Berrios-Rodriguez, 58 V.I. at 490. Rule 2
of the Virgin Islands Rules of Family Division Procedure provides that “[t]he general provisions
of Virgin Islands Rules of Civil Procedure 8 and 10 as to the requirements for pleading form and
content shall apply in all proceedings in the Family Division, unless otherwise ordered in a Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 15 of 20
particular case by the court.” V.I. R. FAM. P. 2(a). Rule 8 of the Virgin Islands Rules of Civil
Procedure, in turn, requires that a claim for relief be made in a pleading. V.I. R. CIV. P. 8(a). In
light of these basic principles, Valerie was required to assert a claim for alimony in her answer or
other pleading and should not have been permitted to make such a claim in a motion filed almost
one month after entry of the divorce decree.5
¶ 26 It is, however, worth acknowledging, that title 16, section 110 of the Virgin Islands Code
provides that
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 nurture and education thereof, or the maintenance of either party in the action.
This language could theoretically be interpreted as permitting the Superior Court to modify a
divorce decree to provide for alimony, even if alimony had never been sought. But this
construction of section 110 has been rejected by the only Virgin Islands court to have considered
the question. See Brandy v. Brandy, 21 V.I. 267, 269-70 (V.I. Super. Ct. 1985) (“Mrs. Brandy bases
her motion to modify on 16 V.I.C. § 110 (1964), which authorizes this court to modify an existing
award of spousal support. No Virgin Islands decision, though, can be found that holds that section
110 allows the court to order payment of support where, as here, the original divorce decree is
silent on that subject.”). While this Court is certainly not bound by this lower court decision, the
overwhelming majority of jurisdictions have construed similar statutes to hold that divorce decrees
5 It is important to emphasize that such a rule would not preclude a court from entering a child support order simply because the former spouse did not request child support as part of the divorce proceeding. This is because the Virgin Islands Code mandates that parents support their children, see 16 V.I.C. § 342, and this duty to support is not extinguished simply because the children’s parents obtain a divorce from each other. Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 16 of 20
may be modified to include alimony or other types of spousal support at a later date only if the
decree includes an express provision retaining jurisdiction to permit a future application for
spousal support. See, e.g., Thomasson v. Thomasson, 302 S.E.2d 63, 65 n.1 (Va. 1983) (“The
silence of the final decree as to spousal support has the effect of foreclosing the wife from
petitioning the court. . . for a future award in the light of changed circumstances. This result could
have been avoided by an express reservation, in the final decree, of the court's power to fix and
modify spousal support in the future as changed circumstances might thereafter require.”) (internal
citations omitted); In re Marriage of Carlson, 338 N.W.2d 136, 139 (Iowa 1983) (“[I]f the decree
in a divorce action is silent upon the question of alimony, or if the decree provides that no alimony
is allowed, the decree can not be thereafter modified so as to allow alimony, although there may
be a change in the circumstances of the parties.”) (collecting cases) (internal ellipsis omitted); Van
Brocklin v. Van Brocklin, 635 P.2d 1186, 1189 (Alaska 1981) (“Where there is no award of alimony
and no express reservation of jurisdiction to award the same, a trial court generally lacks authority
to make such an award at a later date.”); In re Marriage of Park, 602 P.2d 1123, 1124 (Or. Ct. App.
1979) (“[I]f the original decree provides for no spousal support, no such support can be added to
the decree at a later time”); Gruber v. Gruber, 523 P.2d 1353, 1357 (N.M. 1974) (same); Burroughs
v. Burroughs, 316 A.2d 522, 523 (Vt. 1973) (modification of alimony proper only where alimony
appears in the original decree); Taylor v. Taylor, 128 S.E.2d 910, 912 (S.C. 1962) (“[W]here the
divorce decree does not provide for alimony and there is no reservation of jurisdiction in the
decree, such is final and absolute, and the wife cannot be allowed alimony in any subsequent
proceeding.”); Long v. Long, 5 P.2d 1047, 1048 (Ariz. 1931) (“Since the original decree contained
no provision regarding alimony for plaintiff, the court was without jurisdiction to grant her petition
for alimony in the present proceeding.”); Hall v. Hall, 80 S.E. 992, 992 (Ga. 1914) (“After a wife Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 17 of 20
has obtained a decree of total divorce the matrimonial relation no longer exists, and therefore she
can not then obtain an order or judgment requiring her former husband to pay alimony.”); see also
Domestic Divorce Decree Without Adjudication as to Alimony, Rendered on Personal Service or
Equivalent, As Precluding Later Alimony Award, 43 A.L.R.2d 1387, 1391 (1955 & Supp. 1992)
¶ 27 Similarly, the fact that the Superior Court issued a divorce decree yet expressly retained
jurisdiction to distribute the parties’ marital assets at a later date should not give the Superior Court
carte blanche to reopen other issues pertaining to the parties’ divorce, such as alimony. It is
certainly true that “an interlocutory order . . . remains open for reconsideration by the trial court.”
Greene, 67 V.I. at 734 (collecting cases). But as explained earlier, a divorce decree—even one that
does not resolve every outstanding issue between the parties—is not an interlocutory order, but a
final order, see 16 V.I.C. § 109, and thus is not subject to plenary modification, but like other final
judgments may only be altered “in certain specifically enumerated circumstances.” In re Welcome,
58 V.I. at 250 (rejecting the claim that “a divorce court maintains jurisdiction after final
adjudication and may modify a divorce decree” because “the Superior Court lacked plenary power
. . . after final judgment.”).6
6 While the Virgin Islands Rules of Family Division Procedure do not include a rule specifically addressing the conditions under which a party may seek to amend or seek relief from a final judgment, Rule 1(i)(1) provides that “[w]here no Rule is included addressing a procedure, provisions of the Virgin Islands Rules of Civil Procedure . . . may be used [and] adapted as necessary” in family law matters. Accordingly, the provisions of Rules 59 and 60 of the Virgin Islands Rules of Civil Procedure addressing the circumstances under which a final judgment that has been entered may be altered or amended, and the conditions under which relief may be afforded from a final judgment, respectively, apply in family law matters such as the instant case, which involves “matters . . . arising from dissolution of marriage . . . and all proceedings for modification . . . arising from these proceedings.” V.I. R. FAM. P. 1(b). Case law recognizing the time limits for pursuing relief under either of these rules would likewise apply. See, e.g., Dennie v. Olympic Rent- Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 18 of 20
¶ 28 One such circumstance, of course, is when the Superior Court expressly retains jurisdiction
over an issue, as it did in this case regarding the division of marital assets. But the fact that a party
may have failed to plead a particular claim or regrets a decision made during the divorce
proceeding—such as consenting to a provision of the divorce decree that requires support
payments greater than those required by law—is not a justifiable reason for modifying the divorce
decree. See Engeman v. Engeman, 64 V.I. 669, 678 (V.I. 2016).
¶ 29 In this case, Valerie did not assert a claim for alimony, pendente lite support, attorney’s
fees, or any monetary award at any point between the filing of Stephen’s divorce petition on
November 14, 2016, and entry of the Superior Court’s divorce decree nearly six years later on
February 14, 2022, despite having numerous opportunities to do so, including in her February 21,
2017 answer and subsequent amendment to it. The Superior Court clearly recognized these
circumstances, expressly noting in the February 14, 2022 divorce decree that “[t]he parties have
neither waived nor asserted their right to alimony.” (J.A. 39.) And while the February 14, 2022
divorce decree expressly retained jurisdiction to determine an appropriate distribution of the
parties’ marital assets, it did not retain or reserve jurisdiction to award alimony or any other support
payments at some future date. Consequently, the Superior Court lacked the authority to order
Stephen to make any support, maintenance, or attorney’s fees payments in its August 23, 2022
A-Car, 2023 VI 6 ¶18 (V.I. 2023) (explaining that a motion to alter or amend a judgment must be filed “no later than 28 days after the entry of the judgment” as required by Rule 59(e), and that a motion seeking such relief that is filed after this 28-day deadline “could only be considered as a motion seeking relief from a judgment under the provisions of Rule 60(b),” which is subject to the filing deadlines imposed by Rule 60(c)(1)). Further, in addition to the powers to afford relief conferred on the Superior Court by Rule 60(b), the Superior Court also expressly retains the “power[s] to: (1) entertain an independent action to relieve a party from a judgment, order, or proceeding; [and] (2) set aside a judgment for fraud on the court.” V.I. R. CIV. P. 60(d). Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 19 of 20
order.7 Therefore, this Court will reverse the portion of the August 23, 2022 order requiring
Stephen to pay Valerie $7,500 cash per month, provide her with $5,000 credit card access per
month, and to pay a one-time sum of $350,000 for legal expenses.8
III. CONCLUSION
¶ 30 The Superior Court erred when it awarded Valerie alimony pendente lite and attorney’s
fees since these claims were not pled or reserved prior to the Superior Court issuing the divorce
decree. Accordingly, we reverse the Superior Court’s August 23, 2022 opinion and order, and on
remand, direct that the Superior Court promptly proceed to resolve the last remaining issue before
it—the distribution of marital assets.
Dated this 13th day of October, 2023. BY THE COURT:
/s/ Rhys S. Hodge___________ RHYS S. HODGE Chief Justice
ATTEST:
VERONICA J. HANDY, ESQ. Clerk of the Court
7 Having concluded that the Superior Court lacked the authority to order Stephen to make any support, maintenance, or attorney’s fees payments in its August 23, 2022 order, we need not address the other issues raised, including whether the Superior Court abused its discretion in awarding such payments. 8 At oral argument, in response to a direct question from the Court, Stephen’s counsel affirmed that Stephen fully intends to continue to pay to Valerie, or on her behalf, all of the payments, costs, expenses, and fees that he had been paying prior to the August 23, 2022 order until the distribution of the marital assets is completed and the case terminated. Given Stephen’s past performance without a specific order in this case, we have no reason to doubt that this promise will be adhered to. Evans-Freke v. Evans-Freke 2023 VI 12 S. Ct. Civ. No. 2022-0046 Opinion of the Court Page 20 of 20
By: /s/ Reisha Corneiro Deputy Clerk
Dated: October 13, 2023