THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Alafonso v. Sarep,
7 FSM Intrm. 288 (Chk. S. Ct. Tr. 1995)

[7 FSM Intrm. 288]

ROSE and INASIO ALAFONSO,
Plaintiffs,

vs.

IOSUA and ITA SAREP et al.,
Defendants.

CA No. 80-92

FINDINGS OF FACTS,
CONCLUSION OF LAW AND JUDGMENT
 
Keske S. Marar
Associate Justice

Trial:  September 12, 1994
Decided:  September 20, 1995

APPEARANCES:
For the Plaintiffs:          Kathleen B. Alvarado, Esq.
                                       Law Offices of R. Barrie Michelsen
                                       P.O. Box 1450
                                       Kolonia, Pohnpei FM 96941

For the Defendants:     Hans Wiliander, Trial Counselor
                                       P.O. Box 389
                                       Weno, Chuuk FM 96942

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HEADNOTES
 
[7 FSM Intrm. 289]

Civil Procedure ) Pleadings
     A court has discretion to allow an amendment to the pleadings.  In the case of a post-trial motion to amend, the court must find that the unpled theory or issue has been tried by the express or implied consent of the parties.  If it has not, then it is reversible error for the court to base its judgment on the unpled theory.  Alafonso v. Sarep, 7 FSM Intrm. 288, 290 (Chk. S. Ct. Tr. 1995).

Constitutional Law ) Chuuk ) Judicial Powers; Custom and Tradition ) Chuuk

[7 FSM Intrm. 289]

     A court should not order a traditional apology, compensation, and settlement when none has been offered voluntarily because traditional settlements are customarily non-adversarial and arrived at without outside coercion and court decisions must be consistent with custom.  Alafonso v. Sarep, 7 FSM Intrm. 288, 290-91 (Chk. S. Ct. Tr. 1995).

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COURT'S OPINION
KESKE S. MARAR, Associate Justice:
     This case came before the court for trial on September 12, 1994.  Appearing for the plaintiffs was Ms. Kathleen B. Alvarado, Esq.  Mr. Hans Wiliander appeared on behalf of the defendants.

     The plaintiffs are the parents of Ignacio Alafonso, who is alleged to have died as a result of a beating caused by defendants Makanty Iosua, Francis Junior, Ikineuo Adam and Tenrino.  The remaining defendants are parents of these defendants and the lineages to which they belong.  The single claim for relief set forth in the original complaint seeks to have the court order a customary settlement between the parties to compensate the plaintiffs for the death of their son.  The plaintiffs request $100,000.00 from each defendant and an order transferring land from the defendant lineages to plaintiffs in such amount as is usual and proper under Chuukese custom.

     At the conclusion of the trial, the court ordered that counsel file written closing argument.  After being granted an extension, plaintiffs filed their closing argument. The defendants have failed to file any closing argument.  The court will deal with defendants' failure to comply in a separate order to show cause.

     The plaintiffs made a post trial motion to amend their complaint to allege a second cause of action for compensatory damages against all defendants including the lineages based upon the tort of wrongful death based on 6 TTC 201(1) and 203(1) and emotional distress.  The defendants have filed no opposition.

     The court faces two issues in this case.  First should the plaintiffs be allowed to amend their complaint post trial.  Secondly, when individuals have failed to reach or conclude a customary apology and settlement, should the court enter an order forcing such a settlement and awarding damages.  The court will address the plaintiffs' Motion to Amend first.
 
Motion to Amend Complaint
     As previously stated, this action stems from a complaint that alleges a single cause of action.  After the conclusion of trial and after having submitted their closing argument, the plaintiffs' moved the court pursuant to Rule 15 to be allowed to amend their complaint.  The amendment would allege a

[7 FSM Intrm. 290]

second claim for relief based on wrongful death and emotional distress.

     The court has discretion to allow an amendment to the pleadings.  Apweteko v. Paneria, 6 FSM Intrm. 554, 557, 1 CSR 30, 32 (Chk. S. Ct. App. 1994).  In the case of a post-trial motion to amend, the court must find that the unpled theory or issue has been tried by the express or implied consent of the parties.  Id.  If there is not implied or express consent then it is reversible error for the court to base its judgment on the unpled theory.  Id.

     In the opening lines of plaintiffs' closing argument, counsel states: "[t]oday this Court faces a case in which it is alleged that liability is based entirely on Chukese [sic] custom and tradition."  Pls.' Closing Argument at 1 (Sept. 27, 1994) [emphasis added].  Further the plaintiffs' expressly disavowed that wrongful death was at issue in this case.  Their written argument also states:  "[t]echnically, it [this case] is not a wrongful death action since it is not brought under the wrongful death statute."  Id. [explanation added].

     The court agrees with this assessment of the issues and theories raised at the trial.  Clearly there was neither express nor implied consent that wrongful death was at issue during the trial.  Accordingly, it is not possible for the court to grant an amendment of the pleadings that would raise the issue of wrongful as sought in the plaintiffs' Motion to Amend and it will be denied.

     Having disposed of the issue, the court is now faced with the only theory at issue in the case, whether or not the court may order a traditional apology and settlement be implemented when the defendants have refused to initiate such a settlement.

Customary Settlements
     The precise issue the court faces is whether or not it is proper for the court to intervene in the normally non-adversarial Chuukese traditional apology and settlement system.  In this case there has never been a traditional apology and settlement offered by the defendants.  The plaintiffs seek to have the court award them the compensation or "chapen awofich" they believe they would be entitled to if there had in fact been a traditional apology and settlement.

     All court decisions are required by the state constitution to be "consistent with this Constitution, local traditions and customs . .  . ."  Chk. Const. art. VII, 14.  Thus the questions becomes:  Would it be consistent with local tradition and custom for the court to intervene in the traditional settlement system in the manner suggested by plaintiffs?  The burden is on the plaintiff to demonstrate the consistency of the action they seek in court with customary law.

     At trial the plaintiffs called Chief Kintoki Joseph as their expert witness.  Chief Kintoki is well known and recognized as an expert in traditional matters and has testified many times as an expert.

     He testified in this case that it is not the role of the court to order compensation in the traditional system, if none has been offered by the defendants.  This is because the traditional apology and settlement system is non-adversarial and the compensation aspect of the traditional settlement is secondary to restoring harmony in the community.  Chief Kintoki emphasized there is no set amount of compensation, as "money is not going to buy the life."  Rather the compensation is based on how the victims family feels and how much the other side wants to give to bring the community back into harmony.  The amount of compensation is reached by negotiation not outside coercion and is but a part of the process.  The family of the wrong doer must initiate the apology to show that they are sorry and to open their hearts.  If the responsible ones are forced into providing compensation then it destroys the voluntary nature of the act of making peace.  Thus the whole point of the traditional apology and

[7 FSM Intrm. 291]

settlement is lost.

     It is not a matter of the court not having the power to do what the plaintiffs seek, rather what they seek is not consistent with the local tradition and custom.  The constitution requires that court decisions be consistent with the custom and the order which plaintiffs seek is not.  Thus the court should not order compensation in the situation where the defendants have refused to do so voluntarily.

     It is unfortunate that a traditional apology and settlement has not been accomplished in this matter.  As Chief Kintoki stated the defendants have brought great shame upon themselves and their lineages.  They have also shamed the plaintiffs by showing a lack of respect for their feelings for the loss of their son.  Since the defendants have thus far refused to ease the pain of the plaintiffs, the wound remains open and the blood of the victim remains uncovered.  As Chief Kintoki said if the situation remains unresolved then evil remains among the people and death may visit again.

Judgment
     Based on the foregoing findings of fact and conclusions of law the court now enters judgment as follows.  It is

     Ordered, Adjudged and Decreed that the plaintiffs take nothing on their original cause of action seeking an award of compensation as if a traditional apology and settlement had been initiated and entered into by the defendants as such a decision would not be consistent with the local tradition and custom.  It is further

     Ordered that the plaintiffs' Motion to Amend their complaint to allege a second cause of action based upon the wrongful death statute is hereby denied.  And it is further

     Ordered that no costs are awarded to any party.

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