Seitz, Chief Judge, and Aldisert and Gibbons, Circuit Judges.
This is an appeal from an order awarding to Yoko Ono Cox Lennon legal custody of her daughter, Kyoko, subject to the right of reasonable visitation with Anthony D. Cox, the child's father.
On January 15, 1969 Anthony D. Cox commenced in the District Court of the Virgin Islands an action for a decree of absolute divorce in which he prayed for custody of Kyoko, with reasonable rights of visitation for the mother. The parties had been married in Tokyo, Japan in 1963, and Kyoko, the one child of the marriage, was then five years of age. Mr. Cox alleged that he was a resident of the Virgin Islands for more than six weeks prior to the commencement of the action and that Yoko Ono Cox was then a resident of London, England. The court ordered service of process in the divorce action by publication. Yoko Ono Cox filed a verified answer in which she admitted that a state of incompatibility of temperament existed between the parties, and in which she stated:
"2. Offers no objections to the immediate hearing of the application of the plaintiff for a decree of divorce absolute, without further notice to defendant; and to the making and entry of such findings of fact, conclusions of law, and decree as to the Court may seem just and proper in the premises, except that the defendant refuses to give exclusive custody of the child to the plaintiff." (emphasis supplied)
The italicized language in the answer was added by Yoko Ono Cox in her own handwriting. She also filed a voluntary notice of appearance, waiver and consent in which she consented to the hearing of the cause as if by default. See 5 V.I.C. § 115. The answer and the voluntary appearance were verified on January 15, 1969, the same date on which the complaint was filed. Mr. Cox moved that the case be scheduled as an uncontested divorce hearing on January 27, 1969. He testified at this hearing, and the court made the following findings of fact, conclusions of law and decree:
That the plaintiff is an inhabitant of the Virgin Islands who was domiciled therein at the commencement of this action, and who has resided therein at least six (6) weeks prior thereto; that the parties were married on June 11, 1963 in Tokyo, Japan, and there is one child of this marriage, namely: Kyoko, 5 years old; and that a state of incompatibility of temperament exists between the parties.
That I conclude as a matter of law, that a state of incompatibility of temperament exists between the parties, which entitles the plaintiff to a Decree of Divorce Absolute.
Ordered, ADJUDGED AND DECREED:
1. That the Plaintiff be and he hereby is granted a Decree of Divorce Absolute, dissolving forever the bond of matrimony heretofore existing between the parties and entered into on the 11th day of June, 1963;
2. That the questions of the care, custody, and control of the minor child, Kyoko, shall be left open for the future determination of a court of competent jurisdiction."
The District Court of the Virgin Islands had subject matter jurisdiction, in the divorce action, to "further decree -- (1) for the future care and custody of minor children of the marriage as it may deem just and proper. . . ." 16 V.I.C. § 109. It is clear, however, that the district court in 1969 expressly refrained from making any decree respecting Kyoko's custody. Undoubtedly this was done because in the verified answer Yoko Ono Cox contested the custody issue and the court concluded that, although it had jurisdiction, it would not dispose of that issue in a default proceeding. A fair ...