(D.C. Civil No. 31-1971). APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX, CHRISTIANSTED JURISDICTION.
Kalodner, Adams and Rosenn, Circuit Judges.
Does Virgin Islands' public policy preclude recognition of a common law marriage entered into by Virgin Islands domiciliaries in a state where such a marriage is valid?
That is the primary question, of first impression, presented by this appeal.
The District Court of the Virgin Islands answered it in the negative in awarding a decree of divorce to the appellee Ethyle Bloch from the appellant Harold N. Bloch on the ground of incompatibility of temperament.
A second question presented is whether the District Court was "clearly erroneous" in its fact-finding that the Blochs had entered into a common law marriage during a visit they had made to Florida in October 1965.*fn1 It may be noted, parenthetically, that the appellant does not challenge the District Court's determination as to incompatibility.
These background facts are undisputed:
The Blochs are residents and domiciliaries of Christiansted, St. Croix, Virgin Islands. In 1962 they commenced living together under one roof, sharing bed and board. A son was born to them in February 1963. From the beginning of their 1962 relationship until the institution of the divorce proceedings in 1971, they held themselves out in the community as husband and wife. In October 1965 they paid a visit to Mrs. Bloch's father in Miami Beach, Florida. They spent the first night of that visit in her father's home, and the next two or three days in a Miami Beach hotel where they registered as husband and wife. Prior to the Florida visit, the appellant purchased and gave the appellee a wedding ring which she thereafter wore on the appropriate finger.
The divorce proceedings developed only one critical fact issue, viz., whether the Blochs, during their Florida visit, had entered into a common law marriage, in consonance with then prevailing Florida law,*fn2 by the exchange of vows. The appellee testified they had exchanged vows and the appellant denied it. The District Court resolved the conflict in the testimony in favor of the appellee. In doing so it stated that it found the appellee's "demeanor as a witness was the more forthright by far," and that "she impressed on the witness stand as being earnest and truthful."
Rule 52(a), F.R.Civ.P., commands that where a trial is had to the court its "findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses."
It is settled that Rule 52(a) governs appellate review of a fact-finding of a trial court, and that under it, such a finding, when supported by evidence, can be found to be "clearly erroneous" only when the appellate court, upon review of all the evidence, "'is left with the definite and firm conviction that a mistake has been committed.'" McAllister v. United States, 348 U.S. 19, 20, 99 L. Ed. 20, 75 S. Ct. 6 (1954), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 68 S. Ct. 525 (1948).
Speaking for this Court, Judge Aldisert recently spelled out the sweep of appellate review of fact-findings made ...