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3 IN THE SUPERIOR COURT OF GUAM 4 BAROLOME ESTANO ABUAN, JR., ) 5 CASE NO. DM0222-11 ) 6 Plaintiff & ) Counterclaim Defendant, ) FINDINGS OF FACTS AND 7 ) CONCLUSIONS OF LAW 8 vs. ) AND ORDER ) 9 ESTHER ROSE BUKIKOSA ABUAN, ) ) JO Defendant & ) 11 Counterclaim Plaintiff. ) 12
J3 INTRODUCTION 14 This matter came before the Honorable Alberto C. Lamorena III for a Bench 15 Trial on Bartolome Estano Abuan, Jr.'s Verified Complaint for Divorce and Esther 16 Rose Bukikosa Abuan's Verified Counterclaim for Dissolution of Marriage. Plaintiff 17 Bartolome Estano Abuan, JR. was present with counsel, Daniel S. Somerfleck. 18 Defendant Esther Rose Bukikosa Abuan was also present with counsel, Joaquin C. 19 Arriola, Jr. Having heard testimony and reviewed the evidence, the Court now 20 issues its findings of fact and conclusions of law. 21
22 FINDINGS OF FACT 23 After weighing the credibility of the witnesses and reviewing the Exhibits, this 24 Court finds the following by a preponderance of the evidence: 25 1. The parties are residents of Guam and have resided on Guam for more than
26 90 days. 27 2. Plaintiff and Defendant married on Guam on August 4, 1990. 28 3. Plaintiff and Defendant separated on December 8, 2009. Findings of Facts and Conclusions of Law Case No. DM0222-11
4. The parties have two minor children of the marriage, B.J.A. (DOB 5/17/2001) 2 and S.C.A. (DOB 9113/2002). 3 5. Plaintiff moved out of the marital residence in December 2009 and began 4 permanently living with his current "girlfriend," with whom Plaintiff has a 5 child. 6 6. Defendant began cohabiting with her "boyfriend" in December of 2009 and 7 currently occupies the marital residence. 8 7. Defendant works at First Hawaiian Bank where she earns approximately 9 $2,250 per month. 10 8. Plaintiff currently works for Guam Power Authority and Air Force Reserves, 11 earning approximately $4,500.00 per month. 12 9. Since the separation, both parties have made varIOUS payments and 13 contributions towards community debts. 14 10. Following the separation, Defendant received tax refunds for tax years 2009 15 and 2010 and applied the funds towards community debts. Defendant also 16 sold a Ford van belonging to the community at fair market price and applied 17 the funds to pay down community debts. 18 11. Plaintiff continues to make mortgage payments on the marital residence. 19
20 Community Debts 1 21 1. Mortgage at First Hawaiian Bank: at date of separation, the mortgage 22 balance was $140,812.00. As of the time of trial, the balance was $127,912. 23 2. Pentagon Federal Credit Union Visa card: $5,000 24
25 1 "As a general rule, a spouse who, after separation of the parties, uses his or her separate funds to pay preexisting community obligations should be reimbursed upon 26 divorce." Babauta v. Babauta, 2011 Guam 15'1 (citations omitted). The evidence here showed that both parties contributed to the community debts using separate funds 27 following the separation, but the exact contribution by each is not in evidence. As such, this 28 Court finds that the parties' distinct contributions are sufficient and that no further offset or reimbursement is necessary for either.
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3. FHB Mastercard: $14,615 2 4. Star Card: $8,351 3 5. Take Home Charge Card: $4,133 4 6. Citibank Debt: $18,604 5 7. Bank of Hawaii Personal Loan: $3,158 6 8. Total value of community debts: $181,773 7 Community Property 8 9. Household furnishings and property consisting of computer (not working), 9 freezer, washer and dryer (not working), television, and other household and IO bedroom furniture: $1,500. II 10. Construction equipment: The evidence showed that various construction and 12 tool items were acquired during the marriage. Plaintiffs Exhibit 1 lists the I3 values the construction equipment as well as certain vehicles. Some of the 14 listed items-most evident, the vehicles-are apparently no longer in either 15 the Plaintiffs or Defendant's possession. 16
17 Notwithstanding the fact that this list appears to give purchase prices rather 18 than values current at the time of separation, as this is the only evidence 19 regarding these community property items this Court accepts the items and 20 their values, except for the vehicles, which this Court addresses separately. 21 This court finds that the value of the construction equipment and tools is 22 $20,598. 23 1 L Pentagon Federal Credit Union Savings Account: $9.00; 24 12.American Amicable Life Insurance Policy: $1,334 (as of May 15, 2009) 25 13. Defendant's 401 K Retirement Benefits: $43,311 26 14. Plaintiffs Government of Guam Retirement Benefits: $4,837 27 15. Thrift Savings Plan: $5,939 28
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16. Government of Guam Employees Federal Credit Union Savings Account: 2 $116 3 17. Vehicles: 2 4 a. 2001 Toyota Tacoma Pickup truck: $6,500 5 b. 1994 Toyota Xtra Cab Pickup Truck (Damaged): $2,000 3 6 18. Total value of the community assets: $86,144 7 Separate Property 8 19. Marital Residence: The evidence showed that Plaintiff executed a Deed of 9 Gift conveying to Defendant an equal interest in the Marital Residence (Lot 10 No. 16-4, Tract 292, Yigo, Guam) as a joint tenant with the right of II
12 2 Although Defendant also lists a "2008 Highlander" as a community asset in her I3 Counterclaim, the evidence revealed that Plaintiff merely cosigned for the loan that enabled the parties' adult daughter to purchase the vehicle. Defendant did not provide evidence, 14 such as a title in either parties' name, showing that either Defendant or Plaintiff owned the vehicle or that the vehicle constitutes an asset that this court should consider as part of the 15 marital estate. For the purposes of this property distribution, the Court considers the 2008 16 Highlander to be the property of the daughter as opposed to community property. Moreover, even if this Court were to consider the vehicle as community property, 17 Defendant failed to meet her burden of providing evidence of the value of the vehicle-loan papers document a loan balance is not an accurate indicator of the true value of a vehicle. 18 Finally, while a spouse's co-signature on a loan generally creates a presumption of community liability, Rainier Nat. Bank, Bellevue Midlakes Branch v. Clausing, 34 Wash. 19 App. 441, 445, 661 P.2d 1015, 1018 (1983), in this case the evidence showed that the vehicle 20 loan represents only a contingent liability, and this Court will not include the loan amount in its community debt calculations. See, e.g., McManus v. McManus, 638 So. 2d 1051, 1053 21 (Fla. Dist. Ct. App. 1994) (Reversing trial court's termination of order for permanent alimony to be paid by husband based in part upon finding that a debt of $300,000 listed by 22 husband represented merely a contingent liability as cosigner on his daughters' mortgages 23 and thus carried no debt service in the absence of defaulL); R.M. v. D.B.M., CN02-06578, 2002 WL 32101218 (Del. Fam. Ct. Dec. 20, 2002) (unpublished decision) (finding that debt 24 for daughter's car, for which the parties had cosigned, constituted daughter's liability and should not be included as the liability in the marital estate). 25
26 3 The testimony suggested that following the separation, the vehicle was given to another and is no longer in either parties' possession. However, it is unclear whether title to 27 the vehicle remains with the parties.
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3 IN THE SUPERIOR COURT OF GUAM 4 BAROLOME ESTANO ABUAN, JR., ) 5 CASE NO. DM0222-11 ) 6 Plaintiff & ) Counterclaim Defendant, ) FINDINGS OF FACTS AND 7 ) CONCLUSIONS OF LAW 8 vs. ) AND ORDER ) 9 ESTHER ROSE BUKIKOSA ABUAN, ) ) JO Defendant & ) 11 Counterclaim Plaintiff. ) 12
J3 INTRODUCTION 14 This matter came before the Honorable Alberto C. Lamorena III for a Bench 15 Trial on Bartolome Estano Abuan, Jr.'s Verified Complaint for Divorce and Esther 16 Rose Bukikosa Abuan's Verified Counterclaim for Dissolution of Marriage. Plaintiff 17 Bartolome Estano Abuan, JR. was present with counsel, Daniel S. Somerfleck. 18 Defendant Esther Rose Bukikosa Abuan was also present with counsel, Joaquin C. 19 Arriola, Jr. Having heard testimony and reviewed the evidence, the Court now 20 issues its findings of fact and conclusions of law. 21
22 FINDINGS OF FACT 23 After weighing the credibility of the witnesses and reviewing the Exhibits, this 24 Court finds the following by a preponderance of the evidence: 25 1. The parties are residents of Guam and have resided on Guam for more than
26 90 days. 27 2. Plaintiff and Defendant married on Guam on August 4, 1990. 28 3. Plaintiff and Defendant separated on December 8, 2009. Findings of Facts and Conclusions of Law Case No. DM0222-11
4. The parties have two minor children of the marriage, B.J.A. (DOB 5/17/2001) 2 and S.C.A. (DOB 9113/2002). 3 5. Plaintiff moved out of the marital residence in December 2009 and began 4 permanently living with his current "girlfriend," with whom Plaintiff has a 5 child. 6 6. Defendant began cohabiting with her "boyfriend" in December of 2009 and 7 currently occupies the marital residence. 8 7. Defendant works at First Hawaiian Bank where she earns approximately 9 $2,250 per month. 10 8. Plaintiff currently works for Guam Power Authority and Air Force Reserves, 11 earning approximately $4,500.00 per month. 12 9. Since the separation, both parties have made varIOUS payments and 13 contributions towards community debts. 14 10. Following the separation, Defendant received tax refunds for tax years 2009 15 and 2010 and applied the funds towards community debts. Defendant also 16 sold a Ford van belonging to the community at fair market price and applied 17 the funds to pay down community debts. 18 11. Plaintiff continues to make mortgage payments on the marital residence. 19
20 Community Debts 1 21 1. Mortgage at First Hawaiian Bank: at date of separation, the mortgage 22 balance was $140,812.00. As of the time of trial, the balance was $127,912. 23 2. Pentagon Federal Credit Union Visa card: $5,000 24
25 1 "As a general rule, a spouse who, after separation of the parties, uses his or her separate funds to pay preexisting community obligations should be reimbursed upon 26 divorce." Babauta v. Babauta, 2011 Guam 15'1 (citations omitted). The evidence here showed that both parties contributed to the community debts using separate funds 27 following the separation, but the exact contribution by each is not in evidence. As such, this 28 Court finds that the parties' distinct contributions are sufficient and that no further offset or reimbursement is necessary for either.
-2- Findings of Facts and Conclusions of Law Case No. DM0222-11
3. FHB Mastercard: $14,615 2 4. Star Card: $8,351 3 5. Take Home Charge Card: $4,133 4 6. Citibank Debt: $18,604 5 7. Bank of Hawaii Personal Loan: $3,158 6 8. Total value of community debts: $181,773 7 Community Property 8 9. Household furnishings and property consisting of computer (not working), 9 freezer, washer and dryer (not working), television, and other household and IO bedroom furniture: $1,500. II 10. Construction equipment: The evidence showed that various construction and 12 tool items were acquired during the marriage. Plaintiffs Exhibit 1 lists the I3 values the construction equipment as well as certain vehicles. Some of the 14 listed items-most evident, the vehicles-are apparently no longer in either 15 the Plaintiffs or Defendant's possession. 16
17 Notwithstanding the fact that this list appears to give purchase prices rather 18 than values current at the time of separation, as this is the only evidence 19 regarding these community property items this Court accepts the items and 20 their values, except for the vehicles, which this Court addresses separately. 21 This court finds that the value of the construction equipment and tools is 22 $20,598. 23 1 L Pentagon Federal Credit Union Savings Account: $9.00; 24 12.American Amicable Life Insurance Policy: $1,334 (as of May 15, 2009) 25 13. Defendant's 401 K Retirement Benefits: $43,311 26 14. Plaintiffs Government of Guam Retirement Benefits: $4,837 27 15. Thrift Savings Plan: $5,939 28
-3- Findings of Facts and Conclusions of Law Case No. DM0222-11
16. Government of Guam Employees Federal Credit Union Savings Account: 2 $116 3 17. Vehicles: 2 4 a. 2001 Toyota Tacoma Pickup truck: $6,500 5 b. 1994 Toyota Xtra Cab Pickup Truck (Damaged): $2,000 3 6 18. Total value of the community assets: $86,144 7 Separate Property 8 19. Marital Residence: The evidence showed that Plaintiff executed a Deed of 9 Gift conveying to Defendant an equal interest in the Marital Residence (Lot 10 No. 16-4, Tract 292, Yigo, Guam) as a joint tenant with the right of II
12 2 Although Defendant also lists a "2008 Highlander" as a community asset in her I3 Counterclaim, the evidence revealed that Plaintiff merely cosigned for the loan that enabled the parties' adult daughter to purchase the vehicle. Defendant did not provide evidence, 14 such as a title in either parties' name, showing that either Defendant or Plaintiff owned the vehicle or that the vehicle constitutes an asset that this court should consider as part of the 15 marital estate. For the purposes of this property distribution, the Court considers the 2008 16 Highlander to be the property of the daughter as opposed to community property. Moreover, even if this Court were to consider the vehicle as community property, 17 Defendant failed to meet her burden of providing evidence of the value of the vehicle-loan papers document a loan balance is not an accurate indicator of the true value of a vehicle. 18 Finally, while a spouse's co-signature on a loan generally creates a presumption of community liability, Rainier Nat. Bank, Bellevue Midlakes Branch v. Clausing, 34 Wash. 19 App. 441, 445, 661 P.2d 1015, 1018 (1983), in this case the evidence showed that the vehicle 20 loan represents only a contingent liability, and this Court will not include the loan amount in its community debt calculations. See, e.g., McManus v. McManus, 638 So. 2d 1051, 1053 21 (Fla. Dist. Ct. App. 1994) (Reversing trial court's termination of order for permanent alimony to be paid by husband based in part upon finding that a debt of $300,000 listed by 22 husband represented merely a contingent liability as cosigner on his daughters' mortgages 23 and thus carried no debt service in the absence of defaulL); R.M. v. D.B.M., CN02-06578, 2002 WL 32101218 (Del. Fam. Ct. Dec. 20, 2002) (unpublished decision) (finding that debt 24 for daughter's car, for which the parties had cosigned, constituted daughter's liability and should not be included as the liability in the marital estate). 25
26 3 The testimony suggested that following the separation, the vehicle was given to another and is no longer in either parties' possession. However, it is unclear whether title to 27 the vehicle remains with the parties. Regardless of who currently possesses the vehicle, 28 because the vehicle constitutes property acquired during the marriage this Court appropriately considers the truck, or its equivalent value, as part of the community estate for purposes of division.
-4- Findings of Facts and Conclusions of Law Case No. DM0222-11
survivorship. Under title 16, section 6101(a)(8) of the Guam Code, property 2 owned in joint tenancy constitutes separate property of both spouses. 3 Moreover, "the fact that title to property is taken by spouses as joint tenants 4 raises an inference of a gift of the funds used to acquire the property." 5 Babauta v. Babauta, 2011 Guam 15 ~ 25 (citations omitted). Plaintiff did not 6 overcome the presumption that he gifted a one-half interest in the property to 7 Defendant. The weight of the evidence established that the parties intended 8 to hold the property as joint tenants with right of survivorship and that each 9 party shares a one-half interest in the home that constitutes the parties' 10 separate property. Neither party presented evidence of the fair market value 11 of the home as of the date of separation and this Court cannot assign a value 12 to the real property, though this Court finds that a valuation is not crucial to 13 its findings and conclusions. 14 Separate Debts 15 20. Plaintiff has a separate debt owed to Bank of Hawaii incurred after the 16 parties separated in the amount of $31,454. 17
18 CONCLUSIONS OF LAW 19 1. This Court has jurisdiction over this dissolution proceeding pursuant to title 20 7, section 3105 and title 19, section 8201 of the Guam Code. 21 Grounds for Divorce: 22 2. Adultery is defined under Guam law as "the voluntary sexual intercourse of a 23 married person with a person other than the offender's husband or wife." 19 24 GCA § 8204. A court may not grant dissolution of marriage on the basis of 25 adultery unless the person seeking dissolution files within two years 26 following discovery of the adultery. 19 GCA § 8314(a). 27 3. The evidence showed that Plaintiff lived with his current girlfriend in 28 December of 2009 and has a child with this woman. The evidence supports a
-5- Findings of Facts and Conclusions of Law Case No. DM0222-11
finding that Plaintiff committed adultery within two years of Defendant's 2 filing of her counterclaim for dissolution. As such, the Court will grant 3 Defendant's request for dissolution on the basis of adultery_ 4
5 Division of Property and Debt: 6 4. The Supreme Court of Guam has held that "the community property to be 7 divided upon dissolution of marriage is the residue which remains after the 8 discharge of the community obligations. Babauta v. Babauta, 2011 Guam 15 9 ~ 36 (citations omitted). The Court has further recognized that "[a]ny
10 disproportionate distribution due to a finding of adultery or extreme cruelty 11 shall only be made on the community property remaining after all community 12 debts have either been satisfied or otherwise accounted for in the valuation of 13 the net community property." Id. 14 5. Title 19 GCA § 6104(a) provides: 15
16 § 6104. Priorities for Satisfaction of Community Debts.
17 (a) Community debts shall be satisfied first from all community property and all property in which the spouses own 18 an undivided equal interest as joint tenants or tenants in 19 common, excluding the residence of the spouses. Should such property be insufficient, community debts shall then be satisfied 20 from the residence of the spouses. Should such property be 21 insufficient, only the separate property of the spouse who contracted or incurred the debt shall be liable for its satisfaction. 22 If both spouses contracted or incurred the debt, the separate property of both spouses is jointly and severally liable for its 23 satisfaction. 24
25 6. Title 19, section 8411(a) provides as follows: 26 § 8411. Disposition of Property. 27 In case of the dissolution of marriage by the decree of a court 28 of competent jurisdiction, the community property, and the homestead, shall be assigned as follows:
-6- Findings of Facts and Conclusions of Law Case No. DM0222-11
2 (a) If the decree be rendered on the ground of adultery or extreme cruelty, the community property shall be assigned to 3 respective parties in such proportions as the court, from all the facts in the case, and the condition of the parties, may deem 4 just. 5 7. In this case, the community debts exceed the community property, 6 excluding the residence. Therefore, the residence, which is held in joint 7 tenancy, must be sold and all proceeds be applied to pay the 8 community debts. 9 8. Any debt not satisfied by the proceeds from the sale of the home will be 10 satisfied by the remaining community property as outlined in the 11 Court's Orders below. This Court deems such division to be just given 12 the facts and circumstances presented. 13
14 Family and Spousal Support 15 9. The Court must "provide for the medical care, support, reasonable education 16 and maintenance of the children of the marriage ... [and] make such suitable 17 allowance to the other spouse for that person's support, during that person's 18 life or for a shorter period, as the Court may deem just, having regard to the 19 circumstances of the parties respectively." 19 GCA § 8405. 20 10. In this case, the Court notes that the parties were married for over 19 years. 21 Plaintiff earns approximately $4,500.00 per month in contrast to Defendant's 22 monthly earnings of about $2,500.00. Considering the length of marriage, 23 Defendant's and Plaintiffs monthly expenses, and each parties' ability to 24 work contrasted with the current earning disparity between the parties, this 25 Court finds that spousal support in the amount of $400 for the next five years 26 paid by Plaintiff to Defendant is appropriate. 27 11. Additionally, unless and until it is determined otherwise by the Child 28 Support Hearing Officer, this Court finds that Plaintiff is in the best position
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to provide health and dental msurance for the mmor children and that 2 Plaintiff will provide such insurance until the children reach the age of 3 majority. 4 12. Child support and child support arrears are reserved for hearing and 5 determination by the Child Support Hearing Officer. 6
7 Child Custody 8 13. The Court applies the best interest of the child standard in determining 9 custody with respect to the parties' minor children. 19 GCA § 8404(a). The 10 Court also acknowledges the strong public policy of allowing children to 11 spend relatively equal time with each parent. 19 GCA § 8404(h). In this case, 12 the best interests of the children are served by joint legal and physical 13 custody whereby the children will spend every other week with Plaintiff. 14 Possession of the 15
19 ORDER 20 Based on the foregoing, IT IS ORDERED THAT: 21 (1) Plaintiffs request for Dissolution is GRANTED on the basis of 22 irreconcilable differences and adultery. 23 (2) Plaintiff be restored to her maiden name, ESTHER ROSE LEON 24 GUERRERO BUKIKOSA, at her option; 25 (3) Defendant is awarded continued possession and quiet enjoyment of the 26 Marital Residence, Lot No. 16-14, Tract 292, Yigo Guam until that 27 property is sold. The parties shall exercise good faith efforts to sell the 28
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home and will do so within one year of the date of these findings and 2 conclusions. 3 (4) Proceeds from the sale of the home shall be applied to satisfy all 4 outstanding community debts; 5 (5) Until the community debts are satisfied, Defendant shall be responsible 6 for payment of the First Hawaiian Bank Mastercard, the Pentagon 7 Federal Credit Union Visa, and the Star Card. Plaintiff is responsible for 8 payment of the remaining community debts. 9 (6) Any proceeds remaining from the sale of the residence after satisfaction of 10 community debts shall be divided equally between Defendant and 11 Plaintiff; 12 (7) Should the proceeds from the sale of the home not suffice to pay all 13 outstanding community debts, the remaining community property 14 described herein shall be sold and applied to the debt in the following 15 order: construction equipment and tools; 1994 Toyota 4x4; 2001 Toyota 16 Tacoma Pickup Truck; household items; savings accounts; retirement 17 accounts. 18 (8) Upon satisfaction of the community debts, Defendant is awarded the 19 following: her 401(k) Retirement Benefits Plan; all household items; the 20 2001 Toyota Tacoma Pickup; and the Thrift Savings Plan. 21 (9) Upon satisfaction of the community debts, Plaintiff is awarded the 1994 22 Toyota Xtra Cab pickup, or, if the parties no longer own title to the 23 vehicle, the cash equivalent to be paid by Defendant to Plaintiff; the 24 American Amicable Life Insurance Policy; construction equipment and 25 tools; Plaintiffs Government of Guam Retirement Benefits; and the 26 Pentagon Federal Credit Union and Government of Guam Employees' 27 Federal Credit Union Savings accounts. 28
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(10) Plaintiff and Defendant are entitled to their remammg separate 2 property; 3 (11) The parties' will each assume their separate debts; 4 (12) Plaintiff shall pay Defendant $400 per month as spousal maintenance 5 for five years. 6 (13) Plaintiff and Defendant shall share joint legal and joint physical 7 custody of the parties' minor children: the children shall spend one week 8 in each of the parties' care and custody. Accommodations shall be made by 9 the parties to allow the children to share Thanksgiving, Christmas, and 10 Easter with the parties' families. II (14) Child support and child support arrears are reserved for hearing and 12 determination by the Child Support Hearing Officer. 13 (15) Each party shall bear his and her respective costs and attorneys' fees. 14 (16) Defendant's counsel shall prepare the interlocutory and final decrees of 15 divorce consistent with this Order and the above findings and conclusions 16 and submit such decrees, with Plaintiffs counsel's approval as to form, no 17 later than 30 days from the date of this Order. 18
19 SO ORDERED this 5 th day of July, 201 . 20
23 Presiding Judge, Superior ourt of Guam 24
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