Cite as Tolenoa v. Timothy,11 FSM Intrm. 485 (Kos. S. Ct. Tr. 2003)

[11 FSM Intrm. 485]

CIVIL ACTION NO. 48-02

Trial: April 15, 2003
Decided: April 21, 2003

APPEARANCES:

HEADNOTES

Civil Procedure – Admissions; Civil Procedure – Sanctions

Rule 37(b) provides that the court may impose sanctions based upon a party's failure to comply with a court order to compel, and, pursuant to Rules 36(a) and 37(b)(2)(A), the court may deem the facts alleged in a request for admission of facts as admitted for the purposes of the action. Tolenoa v. Timothy, 11 FSM Intrm. 485, 486 (Kos. S. Ct. Tr. 2003).

Domestic Relations – Child Support

A biological father whose paternity has been established owes his natural child a duty of support. Tolenoa v. Timothy, 11 FSM Intrm. 485, 487 (Kos. S. Ct. Tr. 2003).

Domestic Relations – Child Support

The interests of justice require an award of child support based upon the custom, tradition, prevailing economic status of Kosrae, the child's needs, the plaintiff's household status, and the defendant's earning capacity in Guam. Tolenoa v. Timothy, 11 FSM Intrm. 485, 487 (Kos. S. Ct. Tr. 2003).

[11 FSM Intrm. 486]

COURT'S OPINION

YOSIWO P. GEORGE, Chief Justice:

This matter was called for trial on April 15, 2003. Lyndon L. Cornelius appeared for the Plaintiff. Defendant was served notice of the trial setting by mail, to the address provided by the Defendant in his answer. Defendant did not appear for trial.

As a preliminary matter, Plaintiff requested that the Court deem the facts alleged in the Plaintiff's Request for Admission of Facts as admitted, for the purposes of trial. Plaintiff filed its First Request for Admission of Facts on November 18, 2002. Defendant failed to file to respond. On January 28, 2003, this Court entered an Order to Compel, requiring the Defendant to respond to the Plaintiff's First Request for Admission of Facts no later than February 20, 2003. Defendant failed to comply with this Court's Order to Compel and again failed to respond to the Plaintiff's First Request for Admission of Facts. On March 18, 2003, this Court entered a second Order for Responses to Plaintiff's Request for Admission of Facts. Defendant was ordered to file and serve his responses no later than April 1, 2003. Defendant was also warned that failure to answer the Plaintiff's discovery requests may result in discovery sanctions, including the admission of all facts alleged by the Plaintiff, for the purposes of determining paternity and child support. Defendant was further advised that his failure to attend the trial shall not delay trial of this matter, and that this Court's judgment may be enforced in Guam through reciprocal proceedings pursuant to State Law. Defendant was strongly encouraged to participate in his action, pursuant to his Answer, respond to the Plaintiff's discovery requests by April 1, 2003, and to appear for trial on April 15, 2003. Defendant again failed to respond to the Plaintiff's Request for Admission of Facts. Defendant also failed to appear for trial.

KRCP Rule 37(b) provides sanctions that may be imposed by the Court, based upon a party's failure to comply with a Court Order to Compel. Pursuant to KRCP Rules 36(a) and 37(b)(2)(A), the Court deems the facts alleged in the Plaintiff's Request for Admission of Facts as admitted for the purposes of this action. Accordingly, the following facts are deemed admitted for the purposes of this action:

The Defendant had intercourse with the plaintiff in 1996, while in Guam, USA. The Defendant had intercourse with the Plaintiff more than four time from December 1996 to May 1997, sometimes in Defendant's car. Plaintiff was 17 years old at the time Defendant had intercourse with her. As a result of cohabitation and intercourse with the Plaintiff in Guam from December 1996 to May 1997, the Plaintiff got pregnant. Plaintiff was three months into her pregnancy when she departed Guam and returned to Kosrae in May 1997. Plaintiff gave birth to Cariann R. Tolenoa, who is Defendant's biological daughter. Defendant never denied paternity of the subject child. In 1999, Defendant sent from Guam to Kosrae, some common necessities of life to Defendant's daughter, Cariann R. Tolenoa. Defendant is an able-bodied man, whose current monthly earning capacity is approximately $1,400. Defendant initially wanted to marry the Plaintiff. During the Defendant's last trip to Kosrae, Defendant met with Plaintiff and her parents at their residence in Tafunsak. Also during Defendant's last trip to Kosrae, Defendant provided to Plaintiff, Plaintiff's father and Cariann R. Tolenoa, coffee, rice and approximately $50.00. These above facts are accepted into evidence as admissions in this matter.

Trial of this matter was held next. Plaintiff submitted the admissions set forth above as evidence in this matter, to establish Defendant's paternity of Cariann R. Tolenoa. Plaintiff did not testify.

Based upon the evidence presented to me, I find that paternity of the Defendant for the subject

[11 FSM Intrm. 487]

child, Cariann R. Tolenoa has been established by a preponderance of the evidence. Therefore, I conclude that the Defendant is the biological father of Cariann R. Tolenoa. Accordingly, the Defendant owes his natural child, Cariann R. Tolenoa a duty of support.

Plaintiff's request for an award of child support was addressed next. Plaintiff and the subject child's financial circumstances were provided to the Court. Plaintiff is not employed. Plaintiff and the subject child live in a household of five persons, none of whom are employed. Occasionally the Plaintiff's household receives financial support from a family member in Guam.

The monthly earning capacity of the Defendant was established as $1,400 per month. However, the actual earnings and financial status of the Defendant cannot be considered by the Court, due to Defendant's failure to appear for trial. Nonetheless, I find that the interests of justice require an award of child support to be awarded to the Plaintiff, for support of the subject child. Based upon the custom, tradition, prevailing economic status of Kosrae State, needs of the subject child who is now five years old, household status of the Plaintiff, and earning capacity of the Defendant in Guam, I award the amount of $75 per month as child support for Cariann R. Tolenoa. Accordingly, the Defendant is ordered to pay child support for his natural daughter, Cariann R. Tolenoa, in the amount of $75.00 per month. The payment shall be made every month until the subject child reaches the age of 18 years. The payment shall be mailed, in the form of a money order or certified check, to Plaintiff's counsel, who shall promptly forward the payment to the Plaintiff. The address of Plaintiff's counsel is as follows: MLSC, PO Box 38, Kosrae, FM 96944. The payment shall be postmarked no later than the last business day of each month and shall begin in April 2003. Either party may advise the Court in writing of any financial changes, when amendment to this order may be requested.