Bruner v. Bruner

• Court: Superior Court of Guam
• Decided: September 28, 2020
• Docket: DM0572-17
• Status: Unknown

Opinion

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IN THE SUPERIOR COURT OF GUAM 9 10 JULIA A. BRUNER, DOMESTIC CASE NO.: DM057247

Plaintiff, 12 DECISION AND ORDER 13 Re: Plaintiff’s Motion for Attorney Fees BERNARD T. BRUNER, For Having to Defend the Defendant’s 14 Motion for Reconsideration Defendant. 15 16

18 INTRODUCTION 19 20 This matter came before the Honorable Judge Anita A. Sukola on August 5, 2020,

21 upon Plaintiff’s Motion for Attorney Fees. Plaintiff, Julia A. Bruner (“Julia”), is

22 represented by Attorney William B. Pole. The Defendant, Bernard Bruner (“Bernard”), is represented by Daron J. Berman of Berman, O’Connor, and Mann. For the reasons set 23 forth below, having reviewed the moving papers and oral argument of both parties, the 24 Court DENIES Plaintiff Bruner’s Motion for Attorney Fees. 25

26 BACKGROUND 27 On November 1, 2017, Plaintiff filed her Complaint for Divorce. As noted in the 28

DM0572-17, Brunerv. Bruner Page 1 of 4 Decision and Order (Motion for Reconsideration). Complaint for Divorce, the parties have one minor child, conceived before the marriage

2 which took place on July 19, 2005. After a bench trial spanning from february 19, 2019 to

3 December 15, 2019, this Court issued a Findings of Fact and Conclusions of Law

4 (“FFCL”) on April 3, 2020. Defendant filed a Motion to Reconsider and Motion to Commence Receiving

6 Community Property Interest in Plaintiff’s Military Retirement on July 14, 2020. Plaintiff filed her Opposition to Defendant’s Motion on August 5, 2020. Included in her Opposition

$ was a separate Motion for Attorney fees for Having to Defend the Motion to Reconsider. Defendant filed an Opposition to the Motion for Attorney Fees on September 14, 2020. 9 Plaintiff filed a Reply to Defendant’s Opposition on September 15, 2020. This Court 10 heard oral arguments on September 17, 2020 and subsequently took this matter under advisement. 12

13 DISCUSSION 14

15 Pursuant to Title 19 GCA §8402, Julia requests attorney fees for having to defend 16 the Motion to Reconsider. The Code provides a, “court may, in its discretion, require the 17 husband or wife, as the case may be, to pay as alimony any money necessary to enable the 1$ wife or husband to . . . . prosecute or defend the action.” 19 GCA §8402. This section is 19 based on former California Civil Code § 137. See source note to 19 GCA §8402. Thus, 20 California case law interpreting section 137 are persuasive to interpreting Title 19 GCA 21 §8402. See Crttz v. Cruz, 2005 Guam 3, ¶ 9; see also People v. Hall, 2004 Guam 12, ¶ 18; 22 see also fajardo v. Liberty House Guam, 2000 Guam 4, ¶ 17. California case law has interpreted “necessary” as used in the Code, to be used “in 23 . . .

24 its broader sense, inasmuch as the action of the court rests in discretion. Obviously, under 25 there would be a negative of any discretion.” the strictest interpretation of the word . . . .

26 Westphal v. Westphal, 10 P.2d 119, 120 (1932). Therefore, “necessary” as used in Title 19 27 GCA §8402 means “convenient, useful, appropriate, suitable, proper, or conducive to the 28 end sought.” Id. (citing Rexroth v. Holloway, 90 N.E. 87 (1909)). The Court is given

DM057217, Bruner v. Bruner Page 2 of 4 Decision and Order (Motion for Reconsideration). considerable discretion to determine whether alimony awarded under this section is, in

2 fact, necessary. However, the “discretion of the trial court in allowing alimony pending

3 suit is not arbitrary; it must be exercised along legal lines, taking into consideration the

4 circumstances of the parties, their necessities, and the financial ability of the husband.”

5 Arnold v. Arnold, 12 P.2d 435, 436 (Cal. 1932) (quoting 1 Cal. Jur. 965, § 19), Further,

6 “[n]eccesity may be proved only by showing that her need for proper support and the expenses of the litigation exceed her available resources.” Lake v. Lake, 217 P.2d 477, 478

8 (Cal. Dist. Ct. App. 1950). Therefore, this Court has discretion in deciding whether alimony for litigation costs during the pendency of this divorce are necessary, and must look to the needs of Julia, the expenses of the litigation, and the resources of Bernard, to 10 make that determination. Julia generates approximately $8,000 dollars a month and her monthly expenses 12 total $6,911. Plaintiff’s Mot. For Attorney Fees, Exhibit 2 (August 5, 2020); Plaintiff’s 13 Decl. of Expenses (August 5, 2020). She is gainfully employed by the Air Force and has 14 accrued 23 years of service. Plaintiff’s Mot. For Attorney Fees, Exhibit 2 (August 5, 15 2020). The costs of litigating Defendant’s Motion to Reconsider to Julia were not provided 16 to the Court but likely do not exceed her available resources. Bernard generates 17 approximately $14,000 a month and pays $1,425 a month in child support. Plaintiff’s Mot. 18 For Attorney Fees, Exhibit 1 (August 5, 2020). Julia generates and maintains enough 19 income to pay for reasonable attorney fees. 20 Julia further argues that a grant of divorce based on “extreme cruelty” should lead 21 to an alimony determination in her favor. “In determining whether or not to grant alimony, 22 the court should consider the comparative guild of the parties, the needs of one spouse, and the ability of the other spouse to pay.” Mtllzngton v. Mtllmgton, 259 Cal.App.2d 896, 23 . . .

24 916 (1968) (citing Mtteller v. Mueller, 282 P.2d 869 (1955); Nttnes v. Nones, 396 P.2d 37, 25 40 (1964)). While comparative fault is a factor to be considered, it is not determinative, as 26 the needs and financial abilities of the respective spouses are to be considered as well. 27 Further, the weight of the factors and the individual circumstances of the particular case 28 are within the Courts discretion to consider. See Price v. Price, 217 Cal.App.2d 1, 10

DM057217, Bruner v. Bruner Page 3 of 4 Decision and Order (Motion for Reconsideration). 1 (1963) (“Discretion to grant or refuse a request for counsel fees and costs is vested in the 2 trial court.”). also Leitpe v. Leupe, 130 P.2d 697, 701 (Cal. 1942) (“the granting or

3 rejection of such a request lies within the sound discretion of the trial court, and the factors

4 to be considered include the respective financial resources of the parties.”).

5 Therefore, after considering the circumstances of the parties, the needs of Julia, the

6 cost of litigation, and the financial abilities of both parties, it is within the Court’s discretion to deny alimony, based on the balance of these factors, while the divorce is

8 pending and for each party to bear the cost of litigation.

10 CONCLUSION

11 Based on the foregoing, Plaintiff Bruner’s Motion for Attorney Fees for Having to 12 Defend Defendant’s Motion to Reconsider is DENIED.

15 SO ORDERED this

Ji#L HONORABLE ANITA A. SUKOLA 19 Judge, Superior Court of Guam 20

25 SERVICE VIA E-MAIL I acknowledge that an electronic 26 copy of the original was e-mailed to:

28 Date:_______

Deputy Clerk, Superior Court of Guam DM057217, Bruner v. Bruner Page 4 of 4 Decision and Order (Motion for Reconsideration).