APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS D.C. Civil No. 76-879.
Adams, Rosenn, and Hunter, Circuit Judges.
Once again we address the question of whether the district court for the Virgin Islands may order distribution in a divorce action of real property jointly held by the parties. In Dyndul v. Dyndul, 541 F.2d 132 (3d Cir. 1976) (Rosenn, J.), we held that the exercise of such power over real property by a Virgin Islands divorce court is prohibited in the absence of express statutory authorization. We further held that no statute of the Virgin Islands permitted a divorce court to dispose of certain property of the parties outside of the territory. However, in so doing, we also suggested that authority did exist to permit the district court to assume jurisdiction over the marital homestead property of the parties, although neither the husband nor the wife contested the disposition of that property. In this case we squarely face reexamination of our previous assumption that the district court has power to dispose of the homestead.
This is an appeal by the defendant-husband in a divorce action from a decree of the district court of the Virgin Islands*fn1 refusing to dispose of his marital homestead. The district court held that it had no authority to order such a distribution, that neither Dyndul's dicta, nor any other case, were controlling, and that the court consequently was without jurisdiction. We disagree and reverse.
On December 15, 1976, Grace Todman ("appellee") filed a divorce action against her husband, George Washington Todman ("appellant"), in the district court for the Virgin Islands. The appellant filed an answer and counterclaim in which he requested a disposition of certain real property -- the marital homestead*fn2 owned by the entireties -- located at 18-B Estate Tutu, St. Thomas, Virgin Islands.
On July 6, 1977, the district court issued a Memorandum Opinion and Decree which granted a divorce, denied alimony, and awarded legal custody of the child of the marriage to both parties. The court refused to dispose of the homestead property, however, holding that it had no jurisdiction under Virgin Islands law to make such an award. This appeal was filed soon thereafter.*fn3
Appellant contends that the failure of the district court to assume jurisdiction over the property was reversible error. He submits that Dyndul v. Dyndul, supra, Virgin Islands district court cases, and the doctrine of stare decisis mandate that the court dispose of the property. He asserts further that explicit statutory authorization is given to the district courts of the Virgin Islands to dispose of the marital homestead by 5 V.I. Code Ann. tit. 33, § 2305(d) (1967), which provides, inter alia, 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."*fn4
The district court rejected each of appellant's arguments. The court first restated the general proposition that a Virgin Islands divorce court may not dispose of real property in the absence of express statutory authorization. See Dyndul v. Dyndul, supra, 541 F.2d at 134 ("authority to distribute real estate in a divorce proceeding can be conferred on a Virgin Islands divorce court only by statute"); Knowles v. Knowles, 354 F. Supp. 239, 242 (D. V.I. 1973) ("power to transfer real property is not an automatic incident to divorce jurisdiction. . . . Further power over real property may therefore be conferred only by statute . . ..") The court then found that section 2305(d) was an insufficient basis for a divorce court to assume jurisdiction over homestead property, rejected the reasoning of Knowles v. Knowles, supra, and concluded that Dyndul v. Dyndul, supra had not resolved this issue.
Section 2305(d) explicitly states that a divorce court "shall make disposition of the homestead in accordance with the equity of the case." As early as 1972 this clear statement led the district courts of the Virgin Islands, sitting as divorce courts, to find jurisdiction over the marital home. See Smith v. Smith, 337 F. Supp. 475, 476 (D. V.I. 1972) ("[Section 2305(d) gives] authority and power to dispose of the homestead"); Ayer v. Ayer, 9 V.I. 371, 381 (D. V.I. 1973) ("The laws of the Virgin Islands empower the district court in granting a divorce to make a disposition of the homestead"). This view is most strongly expressed in Knowles v. Knowles, supra.
In Knowles, the parties persuaded the court that their homestead should be distributed by the court in its award. The homestead was owned solely by the husband, although the wife was led to believe that the property was jointly owned. The court stated that section 2305(d) provided the basis for disposition of the property and decided to award the wife a one-half interest in the homestead, according to the equity of the case. To fortify its decree, in the event that the court's power to make a disposition under section 2305(d) was successfully attacked on appellate review, the court decided to make an alternative ...