42.0206 Dismissal following presentation of evidence.

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(a) Except as provided in subsection (b), the petition shall be dismissed if upon the evidence presented the court finds any of the following:

(1) that it has not been established that either the petitioner or respondent has been a bona fide and continuous resident of American Samoa for at least one year next preceding the commencement of the action or proceeding;

(2) that the petitioner has failed to prove the charge alleged in the petition;

(3) that the petitioner has, during the marriage, been an accessory to the offense, or connived with the respondent in the offense alleged in the petition;

(4) that the petitioner has been guilty of collusion with the respondent in presenting the petition or in the trial of the action or proceeding;

(5) that the petitioner has condoned the act or acts complained of in the petition.

(b) If the petitioner seeks a divorce under paragraph (5) of 42.0202, then paragraphs (a) (3) through (a) (5) are not grounds for dismissal of the petition.

History: 1962, PL 7-32; and 1993, PL 23-4.

Case Notes:

Application of equitable principles of estoppel and clean hands to action for annulment of formerly bigamous marriage was bolstered by territorial statutes providing that court “may” annul any marriage that was illegally contracted, and setting forth strict rules against judgment by default, collusive suits, and the granting of judgment in favor of a guilty party. A.S.C.A. §§ 42.0203, 42.0204-11. Watson v. Watson, 11 A.S.R.2d 30 (1989).

The agreement by a spouse against whom divorce is sought not to contest the divorce does not relieve a court of its statutory duty to examine all witnesses and to dismiss the action if the petitioner has failed to prove the charge. A.S.C.A. § 42.0205-06. Chun v. Chun, 3 A.S.R.2d 23 (1986).

Husband’s admission that he sometimes beat his wife required the court to dismiss his action for divorce where territorial statute requires dismissal if the plaintiff is shown guilty of one of the grounds for divorce. A.S.C.A. 42.0206(a)(5). Lea’e v. Lea’e, 3 A.S.R.2d 51 (1986).

Territorial statute clearly prohibits court from granting divorce absent proof of “fault-based” statutory criteria, even in case where respondent had stipulated to default judgment and waived the right to contest the divorce action. A.S.C.A. §§ 42.0202, 42.0205-06. West v. West, 5 A.S.R.2d 88 (1987).