Doumeng v. Doumeng
| Decision Date | 27 October 1975 |
| Docket Number | Civil No. 393-1970 |
| Citation | 12 V.I. 310 |
| Parties | AUDREY DOUMENG, Plaintiff v. RICHARD DOUMENG, Defendant |
| Court | U.S. District Court — Virgin Islands |
Motion for permission to file child support payments with the court, to be held in escrow until order concerning movant's visitation rights is complied with. District Court, Hoffman, Judge of the District Court, Sitting by Designation, held that the motion would be granted.HOFFMAN, Judge of the District Court, Sitting by Designation
On July 24, 1975, this Court entered an Order in this matter setting forth the defendant's rights to visit with his four minor children now in the custody of the plaintiff in Florida. This Order modified the Decree entered in this matter by Chief Judge Almeric L. Christian on November 13, 1970. The July 24, 1975, Order specifically refused to make compliance by plaintiff with the visitation rights granted therein as a precondition for the continued child support payments of $320.00 per month which the defendant was ordered to make under a Uniform Reciprocal Enforcement of Support Act Order of Judge Eileen R. Petersen on May 1,1975.
On September 16, 1975, the defendant moved this Court to permit defendant to make the aforementioned support payments into the registry of the Court and to hold such funds in escrow until such time as the July 24, 1975, Order concerning visitation rights is complied with by the plaintiff. In support thereof, defendant filed his affidavit stating that plaintiff had refused to allow defendant to visit with his four children or make any arrangements to travel with them to the Virgin Islands as provided for in the July 24, 1975, Order. Accompanying defendant's motion papers was a personal check made out to "V.I. Municipal Court" for $320.00, representing defendant's September support payment.
Plaintiff failed to respond to defendant's motion, despite having been served with the motion papers by mail on Sep-tember 16, 1975. When this matter was continued until October 15, 1975, the Court itself notified plaintiff and her attorney in Florida of such continuance and enclosed a copy of the motion papers.
[1, 2] The Court maintains continuing jurisdiction over this matter and over the parties. Cox v. Cox, 8 V.I. 543, 457 F.2d 1190 (3d Cir., 1972). The defendant and the Court have made reasonable efforts to give actual notice of this motion to plaintiff. Id. Plaintiff's only response to these proceedings since their inception in April of 1975 has been a number of letters from plaintiff's attorney in Florida (see letters from Freeman & Beverly, Don Beverly, of counsel, dated May 15, 1975, June 20, 1975, July 3, 1975, and October 10, 1975). Plaintiff has failed to enter any formal appearance or file any formal response to the pleadings and must be considered in default on this motion.
The question remains, however, whether or not the relief defendant seeks is permissible under Hodge v. Hodge, 11 V.I. 470, 507 F.2d 87 (3d Cir., 1975). In our Order of July 24, 1975, this Court indicated that it believed that it was "settled law in the Virgin Islands that the denial of visitation rights shall not be used punitively for the failure to pay child support...", citing the Hodge decision. Having now reconsidered the matter the Court is not so sure that the Hodge rationale and rule is applicable in the instant case.
In Hodge, the Third Circuit dealt, inter alia, with a situation in which the trial court has suspended visitation rights until the husband-father liquidated his support arrearages. The Court held that such a punitive suspension of visitation rights was not justified. 507 F.2d at 92. In reaching this conclusion the Circuit Court relied on a Pennsylvania case, Com. ex rel. Lotz v. Lotz, 188 Pa. Super, 241, 244, 246, 146 A.2d 363, 363-364 (1958), aff'd, 396 Pa.287, 152 A.2d 663 (1959), which it quoted extensively in a footnote. 507 F.2d at 92, fn. 17.
It is against public policy to destroy or limit the relation of parent or child. "Visitation rights of a parent . . . must be carefully guarded for when parents are separated and custody is placed in one of the parents, there exists a danger that the parent having custody of the child may use his or her advantageous position to alienate the other parent from the affections of the child." 146 A.2d 363-364.
Thus it becomes clear that the Hodge decision is not only premised upon a different factual basis than the instant case, but also that Hodge stands for the proposition that, when balancing a parent's duty to support his or her children against the right to visitation with his or her children, that the right to visitation must always prevail. The Court, therefore, now holds that not only is the Hodge case not a bar to the remedy sought by plaintiff, but also may in fact mandate some action by the Court to assure ...
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