IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN

ELISA F. BRYAN LACATENA,

Petitioner, FAMILY NO. ST-2019-DI-00118

VS. ACTION FOR DIVORCE

MICHAEL ANTHONY LACATENA,

Respondent. ) Cite as 2021 VI Super 36p
Evert, Juite German, Esq.
(Attorney for Petitioner)
Capdeville, Andrew L., Esq.
(Attorney for Respondent)
WATLINGTON, Judge.

MEMORANDUM OPINION

ql This matter is before the Court on the Petitioner's Motion To Prohibit Court From Distributing
Property ftled on January 29, 2021 and the Respondent’s Motion To Stay Ruling On the Petitioner’s
Motion or Alternatively, Respondents Opposition To The Same filed on February 11, 2021. The parties’
ownership of their “marital home” located on Parcel No.5H Rem Estate Hull, No.4 Little Northside, St.
Thomas U.S. Virgin Islands, and a parcel of “raw land” located at Parcel No. 5H-la Estate Hull, No.4
Little Northside Quarter, St. Thomas, U.S. Virgin Islands are in dispute.
UNDISPUTED FACTS

q2 On August 19, 2019 the Petitioner filed a Verified Petition for Divorce. The parties were married
on July 14, 2006 in St. Thomas, U.S. Virgin Islands. Petitioner stated that the marriage is irreconcilably
broken to the extent that the legitimate objects of matrimony have been destroyed, and there is no
likelihood that the marriage can be preserved. The parties’ have no children born of the marriage.’ Among
other things, Paragraph 8 of the Petition states that there is “real” property which needs to be distributed

' Petitioner has a minor child from a previous relationship.
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by the Court. In Respondent’s Answer and Counterclaim, he admits and claims that there is “real”
property that needs to be distributed.
q3 On February 8, 2008, the parties entered into an Installment Sales Contract with Petitioner’s
parents Clara I. Bryan and Francis J. Bryan. The Installment Sales Contract provided title to Parcel No.SH
Rem Estate Hull, No.4 Little Northside, St. Thomas U.S. Virgin Islands (hereinafter “the marital home”)
in consideration of Five Hundred Thousand Dollars ($500,000.00). The parties took possession of and
lived together in what became the marital home until December 2018, when they separated.
{4 Before the parties paid the full amount owed on the Installment Sales Contract, a Quitclaim deed
was delivered to them from Petitioner's parents on November 9, 2009. Although the Quitclaim deed
properly referenced the address of the marital home, the sale amount was reflected as Three Hundred and
Forty-Two Thousand ($342,000). The deed was signed by each parent as a grantor, but each signature was
only witnessed by one individual. Similarly, the Quitclaim deed regarding the “raw land” located at Parcel
No. 5H-1a Estate Hull, No.4 Little Northside Quarter, St. Thomas, U.S. Virgin Islands was only signed
by one witness to each grantor. Both parties requested the Court to distribute these two properties.
q5 On May 16, 2019, a Civil Complaint for foreclosure was filed, captioned Clara I Bryan And
Francis J. Bryan, As Cotrustees Of The Francis J. Bryan And Clara I. Bryan Family Revocable Living
Trust v. Elisa F. Bryan Lacatena And Michael Lacatena in case number ST-2019-CV-00260. The
complaint alleges that the parties are in default under the terms of the 2008 Installment Sale Contract,
among other things. Interestingly, the complaint makes no mention of the existence of the 2009 quitclaim
deeds to the parties for the “martial home” and “raw land”. The Petitioner/Wife filed her Answer to the
Complaint on July 2, 2019 and the Respondent/Husband filed his Answer on June 19, 2019. The
foreclosure action is still pending.
ISSUES

q6 Whether this Court has subject matter jurisdiction to distribute the parties’ marital home and raw
land, which they claim to jointly own?

Whether this Court is preempted under the “first to file rule” from considering title to the real
properties in question?

ANALYSIS

q7 Marital Property is all property acquired by either spouse after marriage through the date of the
Decree of Divorce, unless the property fails within one of the enumerated exceptions of Title 16 V.LC. §
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109 (7).? In her motion, Petitioner contends that the deeds to the “marital home” and “raw land” were not
conveyed in compliance with Virgin Islands law which requires two signatures for each Grantor. If this is
true, then there is no marital real property to distribute as Petitioner asserted in the petition for divorce.
q8 In the instant case it is undisputed that two witnesses did not subscribe their names to each
grantor’s signature. The Virgin Istands Code requires that all deed conveyances be signed by the grantor
and be executed with such formalities pursuant to Title 28, Section 42(a).3 Alexander v. Alexander, 65
V.L 372, 372-73 (2016), explains that “Unlike certain other jurisdictions, the Virgin Islands does not have
a statute permitting a person to cure a deficiently executed conveyance”. Thus, a conveyance executed
within the Virgin Islands must comport with all of the formalities as are required by law to effectuate a
valid transfer, which includes the signatures of two persons, identified as witnesses, who observed the
grantor sign the deed.” Even if curable, Petitioner contends that her mother will not cure any defect in the
deeds and her father is now deceased.‘

qo The Respondent argues that any determination as to the ownership of the Estate Hull property is
premature and that the validity or legality of the quitclaim deed should be decided in the Civil Division.
The Respondent further contends that this instant case is distinguished from Alexander because the
quitclaim deed was executed pursuant to an installment contract and other ancillary agreements.
Respondent asserts that if the Civil Division determines that the “marital home” belongs to the parties,
only then will it require distribution by the Court. The parties agree that there is an issue regarding their
ownership of the properties which they requested this Court to distribute. This Court also agrees that the
title to the properties is disputed. Thus, in the absence of clear title to the real properties by the parties to
this divorce, the Court has no subject matter jurisdiction to distribute the real properties.

{19 Subject matter jurisdiction is a fundamental and nonwaivable requirement which must be fully
considered by a court whenever a possible lack of jurisdiction is brought to its attention. Prosser v.
Nissman, 67 V.1. 96, 96 (Super. Ct. 2016). If the Civil Court determines that the Quitclaim deeds are
invalid then there is no jointly owned real property to distribute. The Family Court does not have

216 V.LC. § 109.(7)

(A) Propeny acquired by gift, bequest, devise, or descent;

(B) Property acquited in exchange for property acquired prior to the marriage, or in exchange for property acquired by gift, bequest, devise, or descent:
(C) Property acquired by a spouse after « decree of legal separation:

{D) Any judgment or property obtained by judgment awarded to a spouse from the other spouse,

(E) Property excluded by valid, written agreement of the parties; and

(F) Income from property acquired by a method listed in subparegraphs (A) through (E), if the income ts not attributable to the personal effort of a spouse.
> Deeds executed within the Virgin Islands of lands or interest in lands shall be executed in the presence of two witnesses, who shall
subscribe their names to the same as such; and the persons executing such deeds may acknowledge the execution thereof.

* See Affidavit of Clara Bryan.
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jurisdiction to distribute property that is not owned by the parties. At this stage, the real property issues
are not ripe for the divorce action because the parties do not have clear title and the matter is yet to be
determined.

qi {t is obvious and uncontroversial that two judges in the same judiciary should not preside over
parallel litigations of the same dispute simultaneously. See Bell v. Lee J. Rahn & Assocs., LLC, 2015 V.L.
LEXIS 89, *4 (V.I. Super. Ct. July 8, 2015). “To do otherwise would be an inefficient waste of judicial
resources (and the parties’). Further, it also opens the risk of potentially conflicting rulings and inconsistent
adjudications of essentially the same factual and legal issues.” See Crosley Corp. v. Hazeltine Corp., 

 (3d Cir. 1941) LEXIS 89, at *4 (Super. Ct. July 8, 2015). The court also looks to the “first
to file” rule which provides that “(t]he party who first brings a controversy into a court of competent
jurisdiction for adjudication should, so far as our dual system permits, be free from the vexation of
subsequent litigation over the same subject matter.” Cenni v. Estate Chocolate Hole Landowners Ass'n,
No. ST-15-CV-383, 

, at *83 (Super. Ct. July 18, 2016)

G12 This Court has applied the “first to file” rule where an action filed in the Division of St. Thomas
and St. John presented issues “substantively identical” to those already pending in an action in the Division
of St. Croix see Cenni. Here, the issue of the validity of the Quitclaim deed is substantially identical to the
issues being filed in the Civil Division. Assuming this Court has jurisdiction, if it were to make a judgment
on the validity of the deeds, a conflicting ruling could be produced. Further, in Alexander the court stated
that the burden shifts to the defendants to “Introduce some evidence that the deed was valid and effective
to convey title of the Property to him.” See Perez, 59 VI. at 527-28. The parties cannot and has not done
that. Since this divorce action was filed months after the foreclosure action in the Civil Division, it is
proper to afford difference and respect to the Civil Court.

q!3 The Respondent requested attorney fees for the filing of his Motion.

Title 5 V.LLC. § 541(b) provides that the awarding of attorney fees are a matter within the discretion
of the Court. The prevailing party can be awarded fees and cost incurred. In this instant action both parties
had knowledge of the property dispute when the Petition and Answers were filed. Yet both parties
requested that the Court distribute properties which titles are in question. Neither made any mention of
the foreclosure action in the Petition or Answer, which clearly preceded the filing of the divorce action.
Petitioner's motion is counter to her original claim that there was real property that needed to be
distributed. It would have been more appropriate to amend the Petition rather than ask the Court to

distribute properties. Meanwhile Respondent perpetuated the improper claim on the Court by admitting
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to the Court that there is real property to distribute without acknowledging the foreclosure. This omission
resulted in wasteful litigation. Thus, no award of attorney fees will be awarded,
CONCLUSION

Based on the foregoing, the Court concludes that the Civil Division where the foreclosure action
is pending is the proper Court to hear the arguments on the validity of the Quitclaim deeds. This Court
does not have subject matter jurisdiction over the real properties which the parties initially asked to be
distributed. Moreover, since it is improper for two judges in the same judiciary to preside over parallel
litigations of the same dispute simultaneously, this Court cannot and will not determine the title to the real
properties. {t would be counterintuitive to the “first to file” rule to attempt to litigate real property issues
in this divorce proceeding. Although, Petitioner's Motion is inconsistent with her assertion that there are
real properties to be distributed, the Court will grant the motion.

Accordingly, it is hereby

ORDERED that Petitioner's Motion To Prohibit Court From Distributing Property is
GRANTED: and it is further

ORDERED the Respondent's Motion To Stay Ruling On the Petitioner’s Motion or Alternatively,
Respondents Opposition To The Same is DENIED in part; and it is further

ORDERED that Respondent's request for attomey fees and costs are DENIED ; and it is further

ORDERED that copies of this Order shall be directed to Julie German Evert, Esq., and Andrew
L. Capdeville, Esq.

DATED: March /@,, 2021 Mla zt
DEB » WATLINGT:

Judge of the Superior Court
of the Virgin Islands
ATTEST:
TAMARA CHARLES
Court

NOS bots

Brenda MOnsanto
Court Clerk Supervisor J AA Age