On Appeal from the District Court of the Virgin Islands (D.C. Civil No. 84-0064)
Before: HUNTER, GARTH and BECKER, Circuit Judges
This case presents the question whether the Territorial Court of the Virgin Islands erred in considering a spouse's responsibility for the failure of a marriage in the distribution of the marital homestead pursuant to V.I. Code Ann. tit. 33 § 2305(d) (1967 & Supp. 1985). For the reasons that follow, we conclude that § 2305(d)'s broad grant of equitable discretion permits consideration of marital fault in the homestead distribution, and hence that the court's ruling was proper.
On August 31, 1982, Bernadette Charles ("Bernadette") instituted divorce proceedings against her husband, Albert Charles ("Albert") in the Territorial Court of the Virgin Islands, Division of St. Thomas and St. John. In addition to seeking a divorce decree, Bernadette's complaint also requested disposition of all property acquired by the parties during the marriage, including the marital homestead*fn1 located at 37-29 Estate Pearl, St. Thomas, Virgin Islands, with equity valued at $93,000; real estate located at 22-10 Estate Mandahl, St. Thomas, with equity valued at $6,000; a Wellcraft Suncruiser boat, with equity valued at $4,000; a $13,000 certificate of deposit and a $675 savings account, both in Albert's name; a $4,198.20 savings account in Bernadette's name; and other personal property of the parties worth $5,000.
On July 7, 1983, Judge Feuerzeig of the Territorial Court filed Findings of Fact and Conclusions of Law granting the divorce and distributing the marital property. Judge Feuerzeig found that during their years of marriage, Albert repeatedly abused Bernadette verbally and physically, was continuously involved in extra-marital affairs, and failed to contribute to household expenses.*fn2 He also found that during the marriage, Bernadette earned two dollars for every dollar earned by Albert. Judge Feuerzeig concluded that the "equities of the parties" necessitated a 66 2/3% share to Bernadette, and a 33 1/3% share to Albert. Accordingly, Judge Feuerzeig issued a second decree on September 1, 1983, awarding Bernadette the marital homestead at Estate Pearl and awarding Albert all the remaining property.*fn3 Judge Feuerzeig directed Albert to vacate the marital homestead on August 31, 1983, and deliver the keys to Bernadette or her attorney. Edith Bornn.*fn4
Albert appealed from the second decree. He noted that Judge Feuerzeig had said that, regardless of their relative economic contributions to the marriage, he would ordinarily have given Albert one-half of Estate Pearl because the house had been bought primarily with proceeds of the sale of property owned by Albert prior to the marriage. Judge Feuerzeig refused to apportion Estate Pearl in this way, however, because he found that the breakdown of the marriage was due solely to Albert's misconduct. In effect, to punish Albert's misconduct, Judge Feuerzeig awarded the entire marital homestead to Bernadette.*fn5 Albert contended that consideration of marital fault in the distribution of the homestead was proscribed both by the Virgin Islands divorce code and the marital homestead distribution statute, V.I. Code Ann. § 2305(d).
The District Court of the Virgin Islands affirmed Judge Feuerzeig's decision. Chief Judge Christian stated that, contrary to Albert's contention, neither the divorce code nor V.I. Code Ann. tit. 33 § 2305(d) proscribe consideration of marital fault in the distribution of the marital homestead in an appropriate case, and indeed that § 2305(d) explicitly permitted such consideration. The district court further held that Judge Feuerzeig had not abused his discretion in his evaluation of marital fault. The district court therefore affirmed Judge Feuerzeig's decree. This appeal followed.
Two issues are raised on appeal. First, we must consider whether the direction in V.I. Code Ann. tit. 33 § 2305(d) to divide the marital homestead in accordance with the "equity of the case" is no longer effective since the 1973 amendment of the Virgin Islands divorce statute, V.I. Code Ann. tit. 16 §§ 104, 109, to exclude fault as a ground for divorce and as a factor in influencing decisions pertaining to alimony, support and certain other related matters. Assuming that §§ 104 and 109 do not override § 2305(d), the second issue is whether § 2305(d)'s "equity of the case" criterion permits consideration of marital fault in appropriate cases.
A brief historical survey of the relevant Virgin Islands law relating to divorce and marital property distribution is instructive. In 1973, the Virgin Islands legislature amended § 104 of the divorce statute to eliminate fault as a ground for divorce.*fn6 At the same time, the legislature amended § 109 of the divorce statute specifically to exclude consideration of marital fault in decisions pertaining to child custody and support, alimony, the possession or control of personal property of the other party, and the wife's decision to change her name. Section 109 now directs the divorce court to consider the "needs and welfare" of the children with regard to custody and child support, and the "need" of a party for support ad maintenance with regard to alimony, irrespective of marital fault.*fn7
Quite significantly for present purposes, the legislature did not enact, as have most other jurisdictions, see infra at Part IV, a comprehensive legislative scheme covering all of the spouses' marital property, real and personal. Instead, the legislature left intact its Homestead Distribution Statute (contained, not in the Divorce Code, but in Chapter 81 of the Virgin Islands Code, dealing with taxation and finance. V.I. Code Ann. tit. 33, §§ 1-4001 (1967 & Supp. 1985)) which provides in relevant part:
The homestead protection and exemption provided in this section shall continue to attach to the property after the death of the owner thereof, and shall inure to the favor of surviving spouse while the latter continues to occupy the said homestead, and after the death of both spouses, to the favor of their children until the youngest surviving of these shall have attained majority. In case either spouse shall abandon the home, the homestead protection and exemption shall continue in favor of the spouse who occupies the property as a dwelling; ...