Government of Virgin Islands ex rel. King v. Walcott
Government of Virgin Islands ex rel. King v. Walcott
Opinion of the Court
OPINION
This is an appeal by the defendant from an order of the Municipal Court increasing the amount which he must pay to the relator for the support of their minor child Dean
On this appeal the defendant makes two contentions. The first is that the trial judge’s conduct and remarks during the course of the hearing on April 9, 1968 were such as to deny the defendant due process of law. This is a serious charge and I have carefully read and reread the transcript of the hearing with it in mind. I am left with the definite conviction that while the trial judge did intervene frequently during the examination and cross-examination of the parties and did frequently caution and interrupt counsel, he did so in an effort, perhaps overzealous but certainly not prejudiced, to bring out the relevant facts and expedite the hearing. At one point during the latter part of the hearing when the defendant was being examined the trial judge said to him: “My mind is made up, unless something new comes up, but I’m listening to the lawyers.” It is argued that this showed prejudgment, but I do not think so. For what the judge was saying
The defendant’s second contention is that the court’s order to pay $50.00 biweekly for a year and $40.00 biweekly thereafter was erroneous insofar as the extra biweekly $10.00 for the first year was concerned. The contention is that this extra biweekly $10.00 was imposed for a year not because of the needs of the child during that year but rather as compensation to the relator for the failure of the court to have called the defendant in for a further hearing in August 1965, as it stated at the hearing in February 1965 it would do, when presumably an increase in the amount of support payable by the defendant would have been ordered. This contention I think is well taken. In explaining this part of the order which the court was about to enter the trial judge said:
“For the record, I might say that the court feels it owes an extra obligation to this petitioner because this matter should have been reexamined as previously stated in August, 1965. I think that should be corrected now, which is about 18 months later. There’s one way for that to be corrected and that’s to fix a larger amount for a period of 18 months and then reduce that to what the court thinks it should be.”
As we have seen, the court fixed the larger amount at $50.00 biweekly, but for a period of 12 months only, and then reduced it to $40.00 biweekly, the amount the court thought the support order should be. When counsel pointed out that this was penalizing the defendant for a delay for which the court, and not he, was responsible the trial judge suggested that the defendant was under the obliga
It is the general rule that a court has no power to modify an order for support by making an additional allowance for expenses incurred in the past. Adair v. Superior Court, 1934, 44 Ariz. 139, 33 P.2d 995, 94 A.L.R. 328; Craig v. Collins, Okla. 1955, 285 P.2d 859; Fuchs v. Fuchs, 1963, 260 N.C. 635, 133 S.E.2d 487; Annotation, 6 A.L.R.2d 1277, 1330. This rule is subject to the qualification in the Virgin Islands that the modified order may be made retroactive to the date on which the petition for modification was filed. 16 V.I.C. § 346. Compare Harris v. Harris, 1932, 259 N.Y. 334, 182 N.E. 7, and Martindell v. Martindell, 1956, 21 N.J. 341, 122 A.2d 352. It is quite clear from the record in the present case, however, that the extra biweekly $10.00 awarded to the relator for a year from April 9, 1968 was designed as an additional allowance for her expenses of maintaining the child during the period of 18 (actually 32) months between August 1965 and the time of the hearing. It was not based upon or intended to meet the expenses of the year during which it was to be paid. The extra allowance of $10.00 biweekly was accordingly in fact intended to be retroactive and was for that reason erroneous.
The judgment of the Municipal Court will be modified by reducing to $40.00 the payments to be made biweekly by the defendant for the support of his minor child commencing on March 15, 1968, and as so modified, will be affirmed.
Reference
- Full Case Name
- GOVERNMENT OF THE VIRGIN ISLANDS ex rel. Mabel Marcus King v. ELMER WALCOTT
- Status
- Published