APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX, CHRISTIANSTED JURISDICTION D.C. Civil Action No. 75-167.
Van Dusen, Adams and Rosenn, Circuit Judges.
This appeal requires us to determine the scope of authority of the District Court of the Virgin Islands to order a division of marital real estate in a divorce proceeding. We hold that this authority can be granted only by statute and that the District Court exceeded its authority in this action.
Irena Dyndul instituted this proceeding to obtain a divorce from Michael Dyndul, her husband for 32 years. Evidence at the hearing established that the parties jointly owned*fn1 three pieces of real estate: a house and lot in St. Croix that had been the marital abode but in which Irena had been living alone since separating from her husband six months earlier; a house on lakefront property in Wisconsin; and a lot in Florida. There was contradictory testimony as to jointly owned personal property.
The district court granted the divorce on the ground of incompatibility of temperament. The court's decree ordered the following monetary and property arrangements: (1) that Michael pay Irena $50 per month as "alimony and support"; (2) that Irena "have exclusive possession for the rest of her natural life of the house and furnishings and equipment" on St. Croix; (3) that Irena "quitclaim" to Michael "all of her title and interest" in the Wisconsin and Florida property; (4) and that Michael pay Irena $500 in attorney's fees plus costs.
Irena has appealed from this order, contending that the distribution of property is inequitable because the district court failed to consider, inter alia, the value of each of the parcels of real estate, the needs of the parties for a particular property, and the ability of the parties to support themselves. It is true that there is no evidence of the properties' values in the record; indeed, the discussion concerning division of property took place off the record. We, however, perceive a more fundamental problem with the district court's action - lack of statutory authority to distribute real property other than the homestead.*fn2
The Virgin Islands legislature has comprehensively regulated the granting of divorce in that jurisdiction. See 16 V.I.C. §§ 101 et seq. Part of that statutory scheme, 16 V.I.C. § 109 (Supp. 1975), provides that in granting a divorce, the court may decree:
(3) for the recovery [for] a party determined to be in need thereof an amount of money, in gross or in installments, as may be necessary for the support and maintenance of such a party; (4) for the delivery to the wife of her personal property in the possession or control of the husband at the time of giving the judgment;
Another title of the Virgin Islands Code provides that
in the case of a divorce, the court which grants it shall make disposition of the homestead in accordance with the equity of the case.
33 V.I.C. § 2305(d) (1967).*fn3 The parties have not cited to us, nor have we been able to find, any other provision of the Virgin Islands Code dealing with division of marital property on divorce.
It is the rule in the majority of American jurisdictions that the authority of a divorce court to effect a division of the property of the parties to a divorce proceeding, at least as to real estate, is purely statutory. See, e.g., Blumenthal v. Monumental Security Storage, Inc., 271 Md. 298, 316 A.2d 243 (1974); Klaisner v. Klaisner, 28 Ill. App.3d 110, 328 N.E.2d 341 (1975); 27B C.J.S. Divorce § 291(1). "It is an accepted doctrine in both England and America that a court of equity in dissolving a marriage cannot divide the property of the spouses except by statutory authority." Lopez v. Lopez, 206 Md. 509, 112 A.2d 466, 468 (1955). This rule apparently derives from the American law concept that divorce "is a creature of state statute, and the power of the [legislature] over the entire subject of marriage, as a civil status, and its dissolution, is unlimited except as restricted by the state and federal constitutions." Coleman v. Coleman, 32 Ohio St.2d 155, 291 N.E.2d 530, 534 (1972). See, e.g., Dolan v. Dolan, 259 A.2d 32, 35-36 (Me. 1969); Chalmers v. Chalmers, 65 N.J. 186, 320 A.2d 478 (1974); 24 Am. Jur.2d Divorce and Separation § 4. There appear to be only two jurisdictions that hold that a divorce court has inherent equitable powers to adjust the property interests of the parties. See Libra v. Libra, 157 Mont. 252, 484 P.2d 748 (1971); Anderson v. Watkins, 208 So.2d 573 (Miss. 1968). This view has the merit of limiting ancillary litigation.
Whatever we may think of the relative merits of these two approaches, we do not exercise a totally unconstrained ...