Hodge v. Hodge
| Decision Date | 09 February 1979 |
| Docket Number | Civil No. 363-67 |
| Parties | JOYCE O. HODGE, Plaintiff v. STEDMANN HODGE, Defendant |
| Court | U.S. District Court — Virgin Islands |
Trustee sought termination of trust. The District Court, Feuerzeig, J., sitting by designation, held that where real property was placed in trust to provide for divorced parties' children's education, and it was the primary purpose of the trust account into which profits were to be placed, not of the trust as a whole, to accumulate funds for the education, and of at least equal im-portance was trust's purpose of delaying beneficiaries' enjoyment of the property until the youngest of them was emancipated, at which time the trust was to terminate and the title to the property was to vest in the children, and the property had not produced a net profit over the nine years the trust had been in existence, but had produced a net profit in four of those years, and a large part of the losses was due to failure to keep all the apartments on the property rented, and court was not convinced that the property could not be made to produce a net profit, the trust would not be held to have failed to accomplish its purposes and terminated, nor was there a substantial and continuing change in circumstances warranting termination under statute allowing a court to set aside, alter or modify a divorce judgment.
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VICTOR G. SCHNEIDER, ESQ., St. Thomas, V.I., for plaintiffMARIA TANKENSON HODGE, ESQ., St. Thomas, V.I., for defendant
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MEMORANDUM OPINIONIn contrast to the legal issues presented, the facts of this case are relatively uncomplicated. By order dated January 23, 1969, the plaintiff, Joyce Hodge, was granted a divorce absolute from the defendant, Stedmann Hodge. The decree was based upon a separation agreement worked out between the parties and their respective counsel and stipulated to in open court on January 17, 1969. The transcript for that date provides:
Mr. Farrelly: No, sir.
Mrs. Bornn: I was reading from Mr. Farrelly's draft.
(Discussion off the record)
Mr. Farrelly: We will let the last sentence stand.
Mrs. Bornn: —which shall be agreed upon. That it is understood by the parties that said trust account shall be for the primary purpose of meeting the higher educational expenses of the children, and that when the second child attains the age of 21, the trust shall terminate. When the youngest child reaches the age of 21 or if sooner emancipated, the trust shall terminate and title shall vest in said children. Wife waives any alimony from husband.
This is the agreement as worked out by counsel and explained to their clients and agreed to by clients in open court. Mr. Farrelly?
Mr. Farrelly: That is correct.
Mrs. Hodge: Yes.
Mr. Hodge: Yes, sir.
Mrs. Bornn: Then, if your Honor please, we would proceed with the divorce as an uncontested divorce this afternoon.
Both the decree and the findings of fact and conclusions of law recite that the court has "jurisdiction of the parties and of the cause of action." The findings of fact provide in part:
3. That the parties are joint owners of certain real property described as Parcel No. 31-1 Estate Thomas, St. Thomas, Virgin Islands.
The decree provides in part:
5. That the parties shall transfer title to real property jointly owned by them and known and described as Parcel No. 31-1 Estate Thomas, St. Thomas, Virgin Islands, in trust to the two children in accordance with the terms and conditions of the trust agreement entered into by the parties. (Emphasis added.)
The decree and the findings apparently were drafted by counsel and approved by them, as evidenced by theirrespective initials in the margins of both documents. They were signed by Francis L. Van Dusen, Circuit Judge of the Third Circuit Court of Appeals, sitting by designation as a District Court Judge.
The file remained dormant from January 23, 1969, until June 20, 1975, when the plaintiff, Joyce Hodge, petitioned for an increase in child support. By agreement of the parties, the 1969 decree then was amended to reflect an increase in the defendant's support obligations. The file again lay dormant for almost two years, until April 12, 1977, when Joyce Hodge moved to compel compliance with the 1969 decree, alleging that the "trust agreement" referred to in the decree was never executed and that the defendant had breached his fiduciary duties to his children. She sought enforcement of the decree or, in the alternative, removal of the defendant as trustee and her appointmnt in his stead. She also sought an accounting of the rental proceeds received from the property since 1969.
Pursuant to 16 V.I.C. § 110, the defendant cross-moved to modify the divorce decree asking the court to grant a change of custody of the parties' children and to delete paragraph 5 on the grounds of a mistake of fact. Mr. Hodge acknowledged that a trust instrument never was executed, but insisted that was Mrs. Hodge's fault. More importantly, he contends that the agreement of the parties and the order of the court was based on the assumption of joint ownership of the property, although the property actually was solely in his name. Moreover, he argues that because of the shortness of the marriage the plaintiff did not even have an equitable interest in the property at the time of the decree. Consequently, he contends the agreement is void for want of consideration and the judgment also is void because it is based on a void contract. The defendant also asserts that the propertywas never the homestead of the parties; and, therefore, the judgment is void because the court lacked jurisdiction to transfer title to non-homestead real property.
Because of the number and complexity of the issues presented, counsel were directed to submit memoranda of law. Both sides have extensively briefed the procedural and substantive issues before the court. Arguments by counsel were heard on June 2, 1978,1 and the matter came on for an evidentiary hearing on August 28, 1978.2
The defendant initially relied on 16 V.I.C. § 110 as the basis of this court's jurisdiction to delete paragraph 5 of the 1969 decree. That section, as construed by the Third Circuit Court of Appeals, gives the court authority to modify certain aspects of a divorce decree upon showing "such a substantial and continuing change in circumstances since the entry of the original decree as to make a continued enforcement of that decree unfair." Hodge v. Hodge, 11 V.I. 470, 478, 507 F.2d 87, 91 (3d Cir. 1975), quoting Viles v. Viles, 4 V.I. 415, 421-22, 316 F.2d 31, 34 (3d Cir. 1963); accord, Del Peschio v. Del Peschio, 6 V.I. 440, 386 F.2d 835 (3d Cir. 1967). In subsequent memoranda defendant also relied on Rule 60(b) of the FederalRules of Civil Procedure, 5 V.I.C. App. I, R.60,3 which allows relief from a judgment upon a showing of one of six enumerated conditions.4 Defendant in effect is requesting retrospective deletion of paragraph 5, but in the alternative, asks for a prospective deletion. As the two entail different considerations they will be treated separately.
[1] The defendant's reliance on 16 V.I.C. § 110 for retrospective deletion of paragraph 5 of the 1969 decree is unfounded. Defendant by affidavit dated September 30, 1977, merely states that the property is in his name, but
[t]hat prior to and at the time of the divorce counsel for plaintiff and for myself did not make the proper title search to determine the legal owners of the property, but I accepted their claim that the property was jointly owned simply because we were married, and I was therefore convinced based on layman's thought and custom that the property was jointly owned by us.
This allegation essentially was repeated by the defendant's testimony. There is no allegation in the affidavit, motions or accompanying papers, however, that the circum-stances relating to title to the property have changed since the date of judgment nor was there any testimony or offer of testimony of such a change. It is true that defendant's knowledge changed after entry of the decree, but that is immaterial in connection with a motion to modify pursuant to § 110. Nothing in the cases construing § 110 support a conclusion that changes in mental attitude or knowledge, as opposed to changes in external conditions, are to be considered in applying this section, and this court is not inclined to engraft such a reading. Moreover, defendant has not made even a colorable showing sufficient to meet the standard announced in Viles. Accordingly, he is ineligible for § 110 relief.5
As indicated, defendant also relies on Rule 60(b)(4), (5) and (6), of the...
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Hodge v. Hodge
...under Rule 60(b) was based on several grounds and not only on defendant's failure to file within a reasonable time. See Hodge v. Hodge, 15 V.I. 154, 164-170 (D.V.I. 1979). Accordingly, the Court concludes that there is no need to amend its February 9 memorandum with respect to the reference......