APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS (DIVISION OF ST. THOMAS).
Seitz, Chief Judge, Adams and Weis, Circuit Judges.
Following a grant of divorce and entry of a stipulated property settlement by the Virgin Islands Territorial Court, defendant-wife presented newly discovered evidence that contradicted plaintiff's responses in discovery denying the existence of a prior marriage. Because the Territorial Court failed to address defendant's allegation of fraud or misrepresentation under Rule 60(b) (3) and erred in concluding that it had authority to distribute realty in the event of annulment, we will remand so that a hearing on the Rule 60(b) motion can be held in the Territorial Court.
Plaintiff-husband filed a complaint in divorce, alleging that he married defendant on August 25, 1951. Defendant filed an amended answer on September 10, 1980 and asked for a decree of annulment. She asserted that plaintiff had been married before August 1951 and had never been divorced. Defendant contended that the property where the parties resided was in her name, and not subject to equitable distribution in the absence of a marital relationship.
Defendant served interrogatories and a motion to produce documents on plaintiff in September. Interrogatory number 5 asked, "Were you married prior to August 25, 1951." On October 10, 1980, plaintiff filed his sworn responses. His answer to number 5 was "No."
Defendant also requested that plaintiff produce, "3. All marriage certificates to anyone where a ceremony was performed whether legal or not." Plaintiff responded, "None." Number 4 requested production of "certified copies of any and all divorces of any previous marriages whether the marriage was legal or not." Plaintiff again answered, "None."
Before receiving the answers from plaintiff, defendant's counsel had requested the Bureau of Vital Statistics in New York State to search for records of any previous marriages by plaintiff. The Bureau suggested that other agencies be contacted and defendant followed that advice. Before defendant could receive a definitive answer, however, the case was scheduled for trial. Defendant requested a continuance because of her difficulty in securing the information, but the motion was denied.
When the case was called for trial, defendant and plaintiff entered into a stipulation for a division of the "marital domain at 20-15 Estate Fresh Meadows," consisting of two buildings on a one acre tract. Plaintiff and defendant were each to receive one building, and a small unimproved plot was to be the property of the defendant. The plaintiff agreed to pay alimony for a period of six months. As part of the agreement, the parties stated that the divorce would not be contested.
On December 1, 1980, based on the agreement between the parties, the Territorial Court entered a decree of divorce and property settlement. On January 16, 1981, defendant filed a motion under Federal Rules of Civil Procedure 56, 59(a), and 60(b) (2) and (3) for vacation of the decree and grant of a new trial. Attached to the motion was a certificate from the City Clerk of New York, dated December 16, 1980, stating that plaintiff and one Kathleen R. Jones were married in that city on March 28, 1948.
The Territorial Court denied the motion on two grounds. First, the presumption of validity of the last marriage had not been rebutted, since defendant had not established that plaintiff was never divorced or that his previous spouse had not died. See Hodge v. Hodge, 14 V.I. 238 (Terr. Ct. St. Croix 1977). Second, the power of the court to distribute the parties' property and the judgment would remain the same with or without the newly discovered evidence. On appeal to the district court, the order of the Territorial Court was affirmed as being a proper exercise of discretion.
In this court, defendant argues that she adequately explained the delay in securing the new evidence and that the New York marriage certificate demonstrates, in effect, that a fraud was committed on the court. She thus asserts that she satisfied Rule 60(b) (2) as well as 60(b) (3). She also contends that the Territorial Court has no jurisdiction to decree a property settlement in an annulment proceeding. Plaintiff responds that the Territorial Court was correct in deciding that the property distribution would remain the same in any event.
The defendant's motion under Rule 60(b) was timely filed in the Territorial Court. Her explanation of the difficulty in securing the new evidence is reasonable and has not been contradicted by plaintiff. We are aware of the delays in the mails to the Virgin Islands, and the difficulties encountered in the search of official records in large cities. We find no evidence of undue delay by defendant in presenting the Rule 60(b) motion to the court. See Wilson v. Thompson, 638 F.2d 801, 803 (5th Cir. 1981) ...