Appeal of Matsudo branch divorce lawsuit (Tokyo High Court)

Tokyo High Court

No. 2453 of 2016 (ne)

January 26, 2017

Appellant X
Attorney at law, as shown in the Attached List of Counsel for Appeal 1
Appellant Y
Attorney at Law Yoichi Kitamura
Akira Ueno
Nobuhiko Sugiyama
Katsuhito Yokokume
Hideki Tani

Main text

  • (1) Paragraphs 2 to 6 of the main text of the original judgment shall be changed as follows.
    • (1) The appellant shall be designated as the custodian of the eldest daughter A between the appellee and the appellant.
    • (2) The respondent shall pay the appellant, as child support for the eldest daughter, a sum of money at the rate of 50,000 yen per month from the date this judgment becomes final and binding until the day the daughter reaches the age of majority, on the last day of each month.
    • (3) The proportional share to be claimed with respect to the pension division pertaining to the information described in Exhibit 2, Notice of Information for Pension Division, between the appellant and the respondent shall be set at 0.5.
    • (4) The remaining claims of the appellant shall be dismissed.
  • (4) The appellant’s remaining claims shall be dismissed. (5) The court costs shall be divided into two through the first and second trials, with one portion to be borne by the appellant and the remaining portion to be borne by the respondent.

Facts and Reasons

First Purpose of Appeal

  • (i) The portion of the original judgment in which the appellant lost shall be reversed.
  • (ii) Same as Paragraph 1 (1) of the main text.
  • (iii) The respondent shall pay to the appellant, as child support for her eldest daughter, a sum of money at the rate of 60,000 yen per month from the date this judgment becomes final and binding until the month in which she reaches the age of majority, payable on the last day of each month.
  • (iv) The respondent shall pay to the appellant 500,000 yen and a sum equal to the rate of five percent per annum from the day following the day on which this judgment becomes final and binding until payment is made.
  • (v) (Exchangeable change of petition for pension division)
    Same as Paragraph 1 (3) of the main text

Second Summary of the Case

  • (i) The appellant (wife) and the respondent (husband) are husband and wife who were married on xxxx, xxxx, and have an eldest daughter A.
    In this case, the appellant filed a suit against the respondent on the grounds that the marriage between the appellant and the respondent had broken down due to the respondent’s physical, economic, mental and sexual violence against the appellant.
    The respondent disputed the grounds for divorce and preliminarily requested that, if the appellant’s request for divorce is granted, the custodian of the eldest daughter should be determined to be the respondent and that, as an incidental disposition, the eldest daughter should be handed over to the respondent and the timing and method of visitation between the appellant and the eldest daughter should be determined.
  • (ii) The court of original instance upheld the appellant’s request for divorce, finding that the appellant took out the eldest daughter without the consent of the respondent and has been taking custody of her since then, during which time the appellant has agreed to visit the eldest daughter and the respondent only about six times in total, and that the appellant wishes to continue to have visitation under certain conditions at a frequency of about once a month. On the other hand, the appellant has been trying to get her daughter back since immediately after she was taken away, and has appealed to a number of legal means, but none of them have been successful. With regard to the interaction between the eldest daughter and the appellant, the appellant is ordered to hand over the eldest daughter to the appellee, and the appellee is allowed to have visitation with the eldest daughter in accordance with the content of the “Guidelines for Visitation and Interaction” attached to the original judgment. The appellant was ordered to hand over the eldest daughter to the respondent, and the respondent was ordered to allow the appellant to have visitation with the eldest daughter as described in the “Outline of Visitation” attached to the original judgment, and the appellant’s proportional share to be claimed for the division of pension pertaining to the information described in the “Notice of Information for Division of Pension” attached to the original judgment was set at 0.5, and the rest of the appellant’s claim was dismissed.
    In response, the appellant filed an appeal. At the trial, the appellant lowered the amount of child support to 60,000 yen per month and changed the information notice for pension division from the one attached to the original judgment to the one attached to Exhibit 2 of this judgment.
  • (iii) The outline of the case and the arguments of the parties are as stated in Section 2 of the “Facts and Reasons” section of the original judgment, except for the appellant’s argument in the trial as stated in Section 4 below and the appellee’s argument in the trial as stated in Section 5 below, and shall be cited as such. However, in line 21 on page 2, after “the marital relationship was” add “on May 6, 2010, when the appellant and the respondent separated, or at the latest on March 21, 2011, when the respondent came to the appellant’s parents' house.
  • (iv) Arguments of the appellant at the trial
    • (1) The original trial court unjustly dismissed the appellant’s claim for alimony based on a very superficial finding that the appellant and the respondent, both of whom were proud, had clashed and ended up living separately, leading to mutual distrust.
      The cause of the breakdown of the marriage was nothing but the accumulation of verbal abuse and threatening behavior emanating from the appellant’s intense desire for control and self-righteous, coercive attitude in daily life. As a result of this chain of events in her daily life, the appellant became exhausted as her identity and energy were diminished. In other words, after the appellant began living with the appellant, the respondent did not bear the living expenses, including food and other expenses for the two spouses, and around August 2007, he held a pair of scissors with a blade of about 10 cm in length about 5 cm from the appellant’s face. The appellant did not respond to the wishes of the appellant who wished to work alone. In addition, the respondent forced the appellant to have sexual intercourse, and on May 1, 2010, the respondent unilaterally prepared a document entitled “Notarized Contract for Divorce Benefits, etc.” and forced the appellant to sign it. Furthermore, the appellant had the appellee visit her eldest daughter eight times between May 16, 2010 and September 26, 2010, and the appellee provided the mass media with images of the eldest daughter taken during the visitation exchanges. On the 8th of the same month, in a TV program featuring the current situation of children who cannot see their single parents after divorce, the image of the eldest daughter was broadcast nationwide, although the eyes were blurred. In addition, the appellant unilaterally stated that the mass media would be present on the scheduled date of visitation on the 11th of the same month, so the appellant decided that visitation between the appellant and the eldest daughter would have to be restricted for the time being.
    • (2) The original trial court unfairly decided that the appellant has custody of the eldest daughter. The appellant has been taking care of the eldest daughter since her birth up to the present, and the respondent has hardly been involved in her care and upbringing even during the period when they were living together. At present, the eldest daughter is leading a school life under a stable custodial environment, and it is contrary to the welfare of the child to appoint the respondent as the custodian until such time as this living environment and human relationships are uprooted and changed. In the appellant’s actions, it must be said that there are doubts about her deep affection and attachment as a parent to the child, and her qualifications as a parent who seeks to protect the child’s life itself. The court of original instance, without taking into account the actual situation of the appellant and the respondent’s marriage and the course of facts, found that the respondent had only submitted a document stating that she would allow visitation between the appellant and her eldest daughter for approximately 100 days a year if she was appointed as the person with parental authority, and without considering the practicality of this proposal and the impact on her eight-year-old daughter who travels back and forth between the parents frequently. The trial court made the mistake of judging the eligibility of the custodian solely from the number of visitation exchanges proposed by the appellant, without taking into consideration the reality of the situation and the impact on the eldest daughter, who is eight years old and travels back and forth between her parents frequently, and the small number of visitation exchanges between the appellant and the eldest daughter.
  • (v) Appellant’s argument in the trial court
    • (1) The appellant claims that the respondent’s physical, economic, psychological, and sexual violence against the appellant is the cause of the alimony, but the appellant is merely slandering the respondent, and there is no evidence to support this other than the appellant’s statement, and the appellant’s statement is not credible.
      (1) The appellant says that the reason for refusing the visitation was that the mass media aired the photo of her eldest daughter, but the appellant continued the visitation on September 26, 2010, and the appellant muddled her words in her own examination at the original trial, saying that the airing was not the only reason.
    • (2) The original trial court’s decision to appoint the appellant as the custodian of the eldest daughter was justified.
      (2) The appellant, based on the proposed joint custody plan attached to the original judgment, specifically stipulates that if the appellant is designated as the custodian, the appellant will be allowed to have visitation with the eldest daughter approximately 100 days a year, and that the appellant and the appellee will be responsible for half of the childcare on holidays and national holidays in a fair manner. As a result, the eldest daughter is allowed to see the appellant and her relatives at least once every two weeks, and is also allowed to keep in touch with them by telephone every day. This is an attempt to allow the eldest daughter to maintain her existing relationships with people and her life as much as possible even after she is handed over to the appellant, and is similar to the way in which the appellant unilaterally took the eldest daughter from her home six years ago, and since then has cut off all relationships between her and the appellant, the appellant’s parents and other relatives, as well as her friends at the nursery school and in the community. This is completely different from the way the appellant cut off all relations between the eldest daughter and the appellant, her parents and other relatives, as well as her day-care center and local friends. Therefore, although the eldest daughter will undergo various changes as a result of the move and change of schools, there is no risk of a situation that would force her to fundamentally change the human and living relationships that she had built up by the time she turned eight.

Third Judgment of the Court

  • (i) This Court, upon the divorce between the appellant and the respondent, has determined that the appellant shall be the custodian of the eldest daughter, and has ordered the respondent to pay child support for the eldest daughter at the rate of 50,000 yen per month from the date this judgment becomes final and binding until the day the eldest daughter reaches the age of majority, on the last day of each month. It is appropriate to set the proportional share to be claimed for the pension division pertaining to the information described in Exhibit 2 “Information for Pension Division” between the appellant and the respondent as 0.5, but the remaining claims of the appellant are without grounds and should be dismissed. In the reasons for this decision, the certified facts are as stated in Section 3-1 of the “Facts and Reasons” section of the original judgment, except as corrected as follows, which is quoted here, and the remaining points are as stated below in Section 2.
    • (1) “Abbreviation.
    • (2) At the end of the third line on page 4, add “In addition, the appellant was unable to secure a place for W to return to work and formally resigned from W around January 2000. (3) At the end of the third line on page 5, add “In addition, the appellant was unable to secure a place for W to return to work and officially resigned from W around January 2010.
    • (3) On page 5, after “June 6 of the same year” in line 13, add “and on the 20th of the same month”.
    • (4) In the 16th line of the same page, “carried out” is changed to “carried out, and on the 24th of the same month, it was carried out in the city of xxxx.
    • (5) In the same page, line 21, after “provided” add “during visitation”.
    • (6) On page 6, from “twice” in the 11th line to the end of the 12th line, replace with “The appellant filed a petition with the Matsudo Branch of the Chiba Family Court for a change of custodian of the child and a domestic affairs trial for the delivery of the child, but the Branch dismissed both of the appellant’s petitions and the trial became final and binding. The said judgment became final and binding.
    • (7) On page 7, line 6, change “is planning to” to “is doing”.
  • (2) Regarding the request for alimony
    • (1) According to the facts found in the original judgment, which has been amended and quoted as above (1), the marriage relationship between the appellant and the respondent had been in a difficult state since around 1999, and on May 1, 2010, a violent quarrel between the appellant and the respondent resulted in a commotion in which the police were called. Since the relationship between the appellant and the respondent has not improved since then, it is reasonable to conclude that the marriage between the appellant and the respondent broke down on the same day.
    • (2) And, according to the above-cognized facts, the evidence “omitted” and the whole purpose of the argument, the appellant perceived the respondent as a dominant person, and strongly felt that she had to give up her dream of working in international cooperation at W, which she had dreamed of since her student days, because of the respondent. On the other hand, the appellant strongly felt that the appellant was prioritizing her own career advancement over her family and children with the appellee, and she could not accept the idea of taking her young daughter to a developing country. (3) The appellant is not a member of the family.
    • (3) The appellant alleges that for approximately six months from December of XXXX, when the appellant and the respondent started living together, the respondent did not bear the living expenses even though the appellant had no income, and the appellant used her own savings to cover the living expenses.
      (3) The appellant made statements in line with this in her written statement and in her personal examination at the original trial, but there are no bank books or transaction histories at financial institutions to support this, and it cannot be immediately admitted that the appellant did not bear any living expenses for about six months based on the above statements alone, and there is no other evidence sufficient to admit this.
    • (4) The appellant claims that around August 2007, the respondent put a pair of scissors with a blade of approximately 10 cm in length close to the appellant’s face at a distance of approximately 5 cm.
      The appellant made a statement in line with this in her written statement and in her personal examination at the original trial, but in the document entitled “Grounds for Requesting Compensation” dated June 30, 2010 prepared by the appellant, the individual acts of the appellant are pointed out, but the scissors are not mentioned at all.
    • (5) The appellant claims that on May 1, 2010, the respondent unilaterally prepared a document entitled “Notarized Contract for Divorce Benefits, etc.” and forced the appellant to sign it, and the appellant’s statement contains a part in line with this.
      However, the above-mentioned document indicates that the appellant was also acting on the premise of divorce and that the marriage was on the verge of bankruptcy, and cannot be said to be the cause of the bankruptcy, and in the first place, this document is a draft of a notarial deed and does not have a signature space, so it is difficult to imagine that the appellant pressured the appellant to sign it.
    • (6) Other facts alleged by the appellant to have occurred by May 6, 2010, namely, the appellant objected to the appellee delaying her return home by one day in order not to waste the Christmas food ordered by the appellee, and the appellee claimed that the cash taken by the appellant when she returned to her parents' home due to morning sickness was a criminal act, divorce, etc. When the appellant returned to her parents' house due to morning sickness, the respondent blamed the appellant for the cash she took, saying that it was a criminal act and that she was getting a divorce; when the appellant could not be reinstated as a W staff member, the respondent said that it was because of the appellant’s bad character; when the respondent forced the appellant to have sexual intercourse and when the appellant miscarried her second child, the respondent made remarks that hurt the appellant’s feelings; when the appellant’s grandmother became critical, the appellant left the graduate school to go home. Although there are statements by the appellant that are in line with these statements, they are not substantiated and cannot be admitted immediately.
    • (7) And since there is no other evidence sufficient to find that the cause of the breakdown of the marriage relationship between the appellant and the respondent was solely the respondent, the appellant’s request for alimony is without grounds.
  • (iii) Designation of Person with Parental Authority
    • (1) When parents divorce judicially, the court shall appoint one of the parents as the person with parental authority (Article 819, Paragraph 2 of the Civil Code). In such a case, in light of the nature of the matter of determining the person with parental authority over a minor and the purpose of Articles 766(1), 771 and 819(6) of the Civil Code, the court shall, in accordance with the specific facts of the case, determine the custody and upbringing of the child to date, the current status of the child and the relationship between the child and the parents, the custodial capacity and environment of the parents, the willingness of the child to be taken into custody, and the intention of the child. (See Article 65 of the Code of Family Affairs Procedure and Article 32(4) of the Code of Procedure Concerning the Protection of Personal Status) and other circumstances concerning the sound upbringing of the child. It is reasonable to conclude that one of the parents should be designated as the person with parental authority from the perspective of the interests of the child, taking into comprehensive consideration the circumstances concerning the child’s upbringing. (2) From this perspective, it is not appropriate to determine the custodial parent solely on the basis of the parents' intentions regarding visitation, nor is it possible to say that the parents' intentions regarding visitation are more important than other circumstances.
    • (2) Looking at this case from this perspective and based on the facts certified above, first of all, with regard to the state of custody and upbringing of the eldest daughter up to now, it is recognized that the appellant was a housewife at the time of the birth of the eldest daughter and that the appellant was the primary custodian of the eldest daughter. Although the appellant started attending graduate school in October 2008, the appellant was busy working as a civil servant, and the appellant remained the primary custodian. From around April 1999 to March 2010, when the appellant commuted from Osaka Prefecture to the graduate school located in △△, she accompanied her eldest daughter and left her at the nursery school located on the campus of the graduate school and at the appellant’s parents' home, but from around the same month until May 6 of the same year, when the appellant commuted to the graduate school, the appellant took custody of her eldest daughter. From around the same month until May 6 of the same year, when the appellant was attending graduate school, the respondent took care of the eldest daughter, picked her up from nursery school, and used a babysitter, but this was for a short period of time. This was only for a short period of time. After separating from the appellant on the same day, the appellant has been consistently taking care of the eldest daughter, and it is recognized that the eldest daughter is living a stable life under the supervision of the appellant, growing up healthy and well, there are no particular problems in the mother-child relationship with the appellant, and she is adjusting to school life at the elementary school she attends.
    • (3) With regard to the ability of the parents to take care of the child, both the appellant and the respondent have a deep affection for the eldest daughter and show a strong desire to take care of and raise her. Both the appellant and the respondent are employed and have reasonable incomes, both are in a position to have flexible working hours, both are able to receive support from their respective parents for the care and upbringing of their eldest daughter, and there is no decisive difference in the housing environment between the appellant and the respondent from the viewpoint of the care and upbringing of their eldest daughter. In addition, the father-child relationship between the eldest daughter and the appellant was good before the separation between the appellant and the appellee.
    • (4) As for the child’s intentions, in 2008 (when she was in the third grade of elementary school), the eldest daughter expressed her desire to live with the appellant. Since the eldest daughter has consistently lived with the appellant since the separation between the appellant and the respondent, it is presumed that the appellant has had an influence on the above intention of the eldest daughter, but even so, there are no circumstances that suggest that it is against the intention of the eldest daughter to continue to live with the appellant.
    • (5) The respondent argues that the appellant should be appointed as the custodial parent because she is prepared to allow visitation between the appellant and the eldest daughter for about 100 days a year if she is appointed as the custodial parent.
      In general, it is in the best interest of the child to form and maintain an amicable parent-child relationship between the non-custodial parent and the child even after the parents divorce, and visitation is a powerful means of achieving this. However, in determining who has parental authority, the circumstances concerning visitation with the non-custodial parent are not the sole criterion for judgment, nor are they more important than other circumstances, as explained above. The distance between the appellant’s home and the appellee’s home is about two and a half hours one way, and if the eldest daughter, who is currently in the third grade of elementary school, has to go back and forth between the appellee’s home and the appellant’s home every time she has a visitation of 100 days a year, in addition to the physical burden, there is a possibility that she will have trouble participating in school events and interacting with her school and neighborhood friends. This may not necessarily be beneficial to the sound growth of the eldest daughter. On the other hand, the appellant does not deny visitation between the appellee and her eldest daughter even in the case where she is appointed as the person with parental authority, but the frequency of such visitation is expected to be about once a month for the time being. However, there is no sufficient evidence to find that resuming visitation at this frequency initially would be insufficient for the sound growth of the eldest daughter and harmful to her interests.
      In addition, when the appellant and the respondent had a violent quarrel on May 1, 2010, the eldest daughter, who was watching the quarrel, repeatedly said “It’s over” and “It’s over,” and it can be inferred that for the eldest daughter, not only visitation with the non-custodial parent, but also the fact that the relationship between the parents (the appellant and the respondent) after the divorce improves and they are no longer on bad terms, even if only a little, is important for her mental stability and sound growth.
    • (6) In addition to the aforementioned circumstances, there are no major problems in the current custodial and nurturing situation of the eldest daughter in terms of her sound upbringing, and from the viewpoint of the interests of the eldest daughter, there are no circumstances where it is necessary to change the current custodial and nurturing environment by having the eldest daughter move to a new residence or school.
      In addition, when the appellant separated from the respondent, she took her eldest daughter with her, and it is clear that this was against the will of the respondent.
      However, when the appellant separated from the respondent with the eldest daughter on May 6, 2010, the eldest daughter was two years and four months old, and it is recognized that it was difficult for the respondent, who was busy with work, to take care of the eldest daughter. The appellant and the respondent were on the verge of bankruptcy, and it was difficult for them to discuss in advance the future custody of the eldest daughter. The appellant set up a place for the appellee to meet and interact with the eldest daughter eight times from September 15 of the same month to September 26 of the same year, and thereafter had the appellee interact with the eldest daughter by telephone until March 21, 2011. After September 26, 2000, the appellant did not allow the appellee to have visitation with her eldest daughter. (The appellant agreed to the visitation on the 26th of the same month on the condition that there would be no interviews by the mass media or filming of her by the respondent. (The appellant agreed to the visitation on 26th of the same month on the condition that there would be no mass media coverage or filming of her by the respondent. (3) The appellant’s family is separated.
      Therefore, the fact that the appellant took the young eldest daughter without neglecting her when they separated and the appellant’s response to the subsequent visitation cannot be deemed to make the appellant unfit to be the custodian from the perspective of the interests of the eldest daughter. In addition, although the appellant claims that she will take her eldest daughter to a foreign country if the appellee is appointed as the custodial parent, there is no evidence that there is a high probability that the appellant will again take up a job related to international cooperation or developing countries at W, etc.
      In addition, although the appellant and the respondent have very different ideas about the nature of visitation, it goes without saying that the specific details of future visitation between the appellant and the eldest daughter should be determined by the family court if the appellant and the respondent are unable to reach an agreement.
  • (iv) Regarding child support
    Of the appellant’s income in 2007, 66,769,589 yen was paid by XX and 15,643,654 yen was paid by XX, for a total of 8,240,053 yen. In contrast, the appellant’s income in 2007 was 950,745,000 yen.
    Applying this to the standard calculation table (Hanrei Times, No. 111, p. 285 and following), child support would be 40,000 to 60,000 yen per month, and therefore, in consideration of the various circumstances, it is reasonable to assume that the child support to be borne by the appellant would be 50,000 yen per month. The payment period shall be from the date this judgment becomes final and binding until the date the eldest daughter reaches the age of majority.
  • (v) Division of pension
    It is appropriate that the division of pensions be based on the information stated in Exhibit 2, “Notice of Information for Division of Pensions,” which is the latest version, and the proportional share to be claimed for the division of pensions shall be determined as 0.5.

Fourth Conclusion

 According to the above, the custodian of the eldest daughter shall be the appellant, and the respondent shall be ordered to pay the appellant, as child support for the eldest daughter, a sum of money at the rate of 50,000 yen per month from the day this judgment becomes final and binding until the day the eldest daughter reaches the age of majority, on the last day of each month. The remaining claims of the appellant are without grounds and should be dismissed. Therefore, since the original judgment is partially unreasonable, it shall be modified and the judgment shall be rendered as set forth in the main text (In addition, the appellant has filed a petition for the handover of the eldest daughter and for the determination of the details of visitation between the appellant and the eldest daughter, but since this is based on the assumption that the appellant will be designated as the custodian of the eldest daughter, it is not necessary to make a judgment. It is not necessary to decide. (2) Civil Division

7th Civil Division

 (Presiding Judge: Yoichi Kikuchi, Judge, Masakazu Sakuma, Judge, and Masanori Suzuki, Judge, are unable to sign and affix their seals due to transfer. (Presiding Judge: Yoichi Kikuchi)

Attachment 1: List of Counsel for Appeal

Takayo Kamata
Tokuharu Hagiwara
Mihoko Fukutomi
Masako Saito
Minae Soh
Yuhei Nagahama
Akira Fujiyoshi
Yasuki Hara
Noriko Kiyota
Junko Tanaka](https://www.bengo4.com/chiba/a_12100/g_12101/l_112179/)
Masako Atsumi
Naoko Miyakoshi
Chika Tomomatsu
Hitomi Motohashi
Ishida Shiju
Satoko Oishi
Masao Honda
Kaoru Yuyama
Yuichi Sakashita](http://www.shinsaitama-law.com/member.html#mem3)
Yumi Ebihara
Noriko Kuroda
Hideki Saito
Yuya Kawamoto
Takato Hara
Mariko Yasuda
Kiyoko Kusuda
Tomiko Asada
Kaoru Hamada
Osamu Hamada
Masahiro Kuroda
Megumi Hirose

Attachment 2: Notice of information for pension division

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