APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX, CHRISTIANSTED JURISDICTION. (Civil Action No. 326-1969).
Van Dusen, Aldisert and Rosenn, Circuit Judges.
This appeal by the former husband from an alimony award authorized under the Virgin Islands Code presents questions whether an alimony claim should be dismissed for failure to join indispensable parties, whether the district court's decree should be modified to include provisions protective of the husband and absent persons, and whether the district court abused its discretion in awarding alimony in gross instead of utilizing a trustee to make installment payments to the former wife.*fn1
The court granted the parties "a divorce absolute, each from the other," awarded lump sum alimony of $200,000.00 to the former wife, annual child support in the amount of $3,000.00 for both children commencing September 1, 1973, and an additional $200.00 per month for each of the two children as of May 1, 1973.
"Alimony upon divorce in the Virgin Islands is . . . purely statutory. Under 16 V.I.C. § 109(3) the district court, upon dissolving a marriage, may provide for the recovery 'from the party in fault such an amount of money, in gross or in installments, as may be just and proper for such party to contribute to the maintenance of the other.'" Barrows v. Barrows, 489 F.2d 661 (3d Cir. 1974). Our review will therefore follow the parameters outlined by statute and the appropriate procedural rules.
Distilled to its essence, appellant's first point suggests that the court erred somehow by not requiring the joinder of his brother, Morris Cohen, and his sister, Rebecca Knapp, as indispensable parties to his divorce action. Although we confess to a lack of certainty as to how a joinder of a husband's brother and sister could be effected in a divorce proceeding,*fn2 we have decided to meet the merits of the contention. Chief Judge Christian has described the background of this issue:
The chasm which divides the litigants in their prayers for relief is the significance of certain assets, primarily securities, held in the names of Rebecca Knapp, plaintiff's sister, Morris Cohen, his brother, and the children of the parties, Stacie and Sari (or in plaintiff's name on their behalf). As to the extensive holdings in the names of Knapp and Cohen, Mrs. Coman charges that they are in actuality the property of her husband, who has always managed, possessed, and received the dividends from these shares to the total exclusion of the record title holders. The evidence adduced tends to bear her out in this respect. Plaintiff, on the other hand, denies ownership, characterizing himself as a mere representative or manager for his siblings, entirely without beneficial interest in such securities.
The court heard testimony from plaintiff and defendant and had the depositions of plaintiff's brother Joseph and his sister Rebecca, and concluded that plaintiff "exhibited every incident of ownership which the law recognizes over the securities, except paper title, 42 AM. JUR. § 40, 41. In this respect, Knapp and Cohen were totally ignorant of the securities, in what they consisted, their number or value, and . . . neither received any income from them." It found "that plaintiff . . . [was] the beneficial owner of the securities held under the names of Rebecca Knapp and Morris Cohen," concluding that this finding "[did] not, of course, bind them," but that it was "justified in proceeding [upon the finding] for purposes of fixing alimony and child support." Because the court found appellant to be the beneficial owner of the securities, he argues that his brother and sister, holders of the legal title, should have been named as indispensable parties to the divorce proceedings under the provisions of F.R.C.P. 19; 5 V.I.C. App. I R 19 (1966).*fn3
Although appellant frames this first issue in terms of indispensability, he seeks not to have the absent persons joined but rather to have the district court's decree modified to include provisions protective of him and those absent persons. Appellant fails to understand the meaning of "indispensable." "Whether a person is 'indispensable,' that is, whether a particular lawsuit must be dismissed in the absence of that person, can only be determined in the context of a particular litigation." Provident Tradesmens Bank & Trust Co. v. Patterson, supra, 390 U.S. at 118 (Emphasis supplied) (Footnote omitted). Therefore, if we conclude that appellant's brother and sister are indispensable parties, then the alimony claim must be dismissed. If, however, modification of the court's decree is appropriate, we need not remand but can "require suitable modification as a condition of affirmance." Ibid., at 112.
Haas v. Jefferson National Bank, 442 F.2d 394, 398-399 (5th Cir. 1971), set forth the distinction between 19(a) Persons to be Joined if Feasible, and 19(b) Determination by Court Whenever Joinder not Feasible. Strictly speaking, we may not consider the criteria of Rule 19(a) because neither Cohen nor Knapp are persons "subject to service of process." They reside in New York, more than 100 miles from the place where the action was commenced, and are therefore not amenable to service of process. F.R.C.P. 4f; 5 V.I.C. App. I.R. 4f (1966).
This, however, does not end the matter. As in Haas where the action proceeded in the district court in Florida and the person sought to be joined lived in Cleveland, Ohio, it becomes necessary to apply the provisions of ...