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Ikeda v Ngirachelbaed [1970] TTLawRp 25; 5 TTR 204 (25 May 1970)

5 TTR 204

BAULANG IKEDA,
Plaintiff

v.

IKEDA NGIRACHELBAED,
Defendant

Civil Action No. 436

Trial Division of the High Court
Palau District

May 25, 1970

Complaint for divorce, property settlement and children's support. The Trial Division of the High Court, D. Kelly Turner, Associate Justice, held that as wife had been cast off under the custom by the husband her relief of property settlement should be decided by custom rather than under the Code and decreed property settlement accordingly.

1. Palau Custom – Divorce - "Tilobed Ra Rebai"

When a wife is tilobed ra rebai she is cast off under Palauan custom by the acts of the husband amounting to adultery or by a new marriage with another under the custom.

2. Palau Custom – Divorce - "Olmesumech" and Food Money.

Under Palauan custom when a wife is tilobed ra rebai she is entitled to a property settlement in addition to the payments of olmesumech, or "parting money."

3. Palau Custom – Divorce - "Olmesumech" and Food Money

Under Palauan customary law olmesumech and food money, if any, are due to the same extent and under the same circumstances after a court divorce as after a divorce under local custom, but they should be handled as a separate matter from the divorce so far as the courts are concerned and the same opportunity should be given to settle them through traditional channels as after a divorce under local custom.

4. Domestic Relations – Divorce - Custody

Unless it is demonstrated by the evidence that the mother is not a fit and proper person to have custody, the court normally will award custody of minor children to the mother.

5. Domestic Relations - Support

Under Palauan statute the offending husband must provide for his minor children's support.

6. Palau Custom – Divorce - "Tilobed Ra Rebai"

As to marital or communal property traditional custom provides that the wife who is tilobed ra rebai is entitled to all marital property except the personal items necessary to the man's welfare, and the family automobile may be such an item.

7. Domestic Relations – Divorce - Custody

Whoever has custody of the minor children should hold the family house in trust for them.

TURNER, Associate Justice

Plaintiff filed complaint for divorce, property settlement and children's support against the defendant. Plaintiff did not specifically claim relief under Section 402, Palau District Code, but sought what amounted to the same result as provided by the statute which requires payment by the father, when he is at fault in breaking up the marriage, of child support.

Plaintiff and defendant were married in 1947 and had ten children. Only six of these are under 18 years of age and therefore entitled to child support payments. The defendant husband forced the wife to leave the marital home approximately one year prior to the trial. He required, however, that the children remain in the home with him and with the woman he claims to have married under the custom. The testimony indicated the defendant was having relationships with the woman for approximately 10 years prior to the trial.

[1,2] The plaintiff was tilobed ra rebai, that is, cast off under Palauan custom by the acts of the·husband amounting to adultery or by a new marriage with another under the custom. The wife's entitlement to relief is not covered in the District Code section but she is entitled to a property settlement in addition to the payments of olmesumech, or "parting money". An extensive review of entitlement of the wife is found in Santos Ngodrii v. Robert Kumaichi and Rekesuk Kumaichi, 5 TTR 121.

In this case even though the parties had been separated approximately one year the traditional meeting of the families of the parties followed by the payment of olmesumech has not been held nor payment made. This judgment is not intended in any manner to prevent, modify, or interfere with the traditional meeting and payment of olmesumech.

[3] The Palau District case, Itelbang v. Gabrina, 2 TTR 194, explains the position of the court in this regard:-'

"It is believed that under Palauan customary law olmesumech and food money, if any, are due to the same extent and under the same circumstances after a court divorce as after a divorce under local custom, but that they should be handled as a separate matter from the divorce so far as the courts are concerned and the same opportunity should be given to settle them through traditional channels as after a divorce under local custom."

The plaintiff does not ask for alimony and none will be granted. She may be entitled to receive olmesumech arranged between the relatives of the parties.

[4, 5] The plaintiff asks for custody of the six minor children under 18 years of age. Unless it is demonstrated by the evidence that the mother is not a fit and proper person to have custody, which certainly is not the situation in this case, the court normally will award custody of minor children to the mother. Under Palauan statute the offending husband must provide for their support.

[6] As to the marital or communal property the court will follow the traditional custom that provides that the wife who is tilobed ra rebai is entitled to all marital property except the personal items necessary to the man's welfare. We make a significant exception, or addition, to "necessary" items by including the family automobile.

[7] The family house, on land leased from the government, is awarded to all the children of the parties, both adults and minors, to be held in trust for them by the plaintiff so long as she shall have custody of the minors. Whoever has custody of the minor children should hold the house in trust for the children.

Whatever other personal properties the parties may have acquired appears to have been divided outside of court.

JUDGMENT

It is ordered, adjudged, and decreed:-

1. That the plaintiff is hereby granted a divorce from the defendant and the bonds of matrimony heretofore existing between them be and the same are hereby abrogated and set aside.

2. The plaintiff is granted custody of the minor children until further order of the court.

3. That the individual property - land leased from the government, building, and furnishings - shall be held in trust by the plaintiff for the benefit of the minor children of the parties and with right of immediate occupancy therein, and if at any time the plaintiff no longer has custody of the minor children the person having such custody shall hold the property in trust for them with right of occupancy.

4. That the defendant shall pay to the plaintiff as and for support and maintenance of the minor children of the parties the sum of fifty dollars ($50.00) per month payable on the first day of each month commencing June 1, 1970, and continuing thereafter until further order of the court. Said payments shall be made through the Clerk of Courts.

5. That the 1968 Toyota automobile, now in the possession of the defendant, be and the same hereby is awarded to the defendant and he shall be obligated to make the payments remaining due on said vehicle.