Bueno v. Bueno

Opinion

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4 4 IN THE SUPERIOR COURT OF GUAM 5 5 ANGELO S. BUENO, JR., ) DOMESTIC CASE NO. DM0325-15 6 6 ) PLAINTIFF, ) FINDINGS OF FACT AND 7 7 VS. ) CONCLUSIONS OF LAW RE: ) COMPLAINT FOR DIVORCE & 8 MICHELE R.L. BUENO, 8 ) SPOUSAL SUPPORT 9 DEFENDANT. ) 9 ) 10 10 INTRODUCTION 11 11

12 This matter came before the Honorable Maria T. Cenzon for a bench trial on July 28, 12 13 2017. Attorney Daniel Somerfleck represented Plaintiff Angelo Bueno ("Plaintiff'). Attorney 13 14 Jeffrey Cook represented Defendant Michele Bueno ("Defendant"). 14

15 At the bench trial, the Court received testimony, on both direct and cross examination, 15

16 from the Parties, Plaintiff's Mother Rosario Bueno ("Rosario"), and Defendant's Mother Joyce 16

17 17 Martratt ("Martratt"), as witnesses. With the submission of both Plaintiff's [proposed] Findings 18 18 of Facts and Conclusions of Law (Sep. 15, 2017) and Defendant's [proposed] Findings of Fact 19 19 and Conclusions of law (Sep. 15, 2017), the Court took the matter under advisement. After 20 20 reviewing the evidence presented, the record and pleadings in this matter, and the relevant law, 21 21 the Court now issues these Findings of Fact and Conclusions of Law ("FFCL"). 22 22 II 23 23 24 II 24

25 25 Bueno v. Bueno; DM0325-15 FFCL Re: Complaint for Divorce & Spousal Support Page I of 13 1 FINDINGS OF FACT 1

2 1. The Parties were married on February 14, 1997. This marriage is the Parties' second 2

3 3 marriage to each other. The first marriage lasted from 1988 to 1995. The first marriage 4 4 was dissolved and they remarried in 1997. 5 5 2. Throughout the parties' marriage, their primary residence was in a horne owned by 6 6 Rosario in Dededo, Guam. 7 7 3. The Parties separated on or about November 1, 2014. After their separation, Plaintiff 8 8 moved in with Ms. Lillian Perez and continues to live with her. Defendant continued to 9 9 reside in the marital residence with Rosario and received $300 per month of support 10 10

11 from Plaintiff. In June 2015, Defendant moved in with family members and Plaintiff's 11

12 support payments ended. 12

13 4. Plaintiff filed a Complaint for Divorce on July 2, 2015 citing "irreconcilable 13

14 differences" as the basis for divorce. 14

15 5. Defendant filed an answer to the Complaint and a counterclaim for Separate 15

16 16 Maintenance on July 31, 2017. Defendant sought legal separation because she would 17 17 like to remain as a beneficiary under Plaintiffs health insurance. Defendant also 18 18 requests for permanent spousal support. 19 19 6. There are no children of the marriage. 20 20 7. Both parties were unfaithful during the marriage and were involved in a series of 21 21 affairs. Plaintiff testified that since the second marriage he was involved with three 22 22 affairs. Defendant was accused of two affairs, but only admitted to one affair in 1998. 23 23

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25 25 Bueno v. Bueno; DM0325-15 FFCL Re: Complaint for Divorce & Spousal Support Page 2 of 13 1 However, the latest affair was by Plaintiff with Lillian Perez which commenced in 1

2 2013. 2

3 3 8. Plaintiff has a land trust property in Yigo, acquired before the marriage. Both parties 4 4 agree that this property is Plaintiff's separate property. 5 5 9. The community property of the parties includes: 6 6 a) 2002 Mazda Protege, 7 7 b) 2013 Toyota Tacoma, and 8 8 c) Plaintiff's Government of Guam retirement benefits accumulated during the 9 9 parties' marriage totaling to an estimated $73,367.93 (in regular retirement) and 10 10

11 $3,166 (in supplemental retirement).' 11

12 10. The Community debts of the parties consist of the following: 12

13 a) Loan with First Hawaiian Bank for the 2013 Toyota Tacoma, 13

14 b) Guam Memorial Hospital debts, and 14

15 c) Citibank Visa credit card debt. 15

16 16 11. Plaintiff was the primary provider during the marrmge and was in control of all 17 17 finances. Defendant only worked sporadically during the marriage. Plaintiff provided 18 18 financial support and contributed to most of the house chores, such as cleaning, 19 19 laundry, and cooking. Defendant also assisted in some dusting, laundry with plaintiff, 20 20 and kept her mother-in-law, Plaintiff's mother, company. 21 21 12. Defendant suffers from Myotomic Muscular Dystophy which disables Defendant from 22 22 seeking employment. It is a hereditary disability causing generalized muscle pain and 23 23

24 24 1 Amount must be verified by the Government of Guam Retirement Fund. 25 25 Bueno v. Bueno; DM0325-15 FFCL Re: Complaint for Divorce & Spousal Support Page 3 of 13 1 weakness. Although Defendant was diagnosed in 2015, she suffered from its symptoms 1

2 years before her diagnosis. Plaintiff agreed to take care of Defendant even though he 2

3 knew of her possible condition. According to Defendant, Plaintiff was made aware of 3 4 4 this diagnosis because Defendant's father suffered from the same disability. 5 5 13. Pending resolution of the instant action, Defendant filed a Motion for Temporary 6 6 Spousal Support and Attorney's Fees on August 31, 2015. The Court issued a Finding 7 7 of Fact and Conclusion of Law following the Evidentiary Hearing on Defendant's 8 8 Motion for Temporary Spousal Support and Attorney's Fees awarding payment of $800 9 9 in temporary spousal support for Defendant. However, during the trial, Plaintiff 10 10

11 testified that he never made payments pursuant to the Court's April 26, 2016 Order. See 11

12 FFCL Following Evidentiary Hearing (Apr. 26, 2016). 12

13 14. Even after the parties' separation, Plaintiff continues to provide medical coverage 13

14 through his employer's SelectCare 1500 insurance coverage which requires the first 14

15 $1,500 of medical expenses to be paid prior to the insurance coverage of 80/20 15

16 16 thereafter. Plaintiff stopped coverage of Defendant in October 2016 and it was 17 17 reinstated in March 2017. 18 18 15. Defendant also receives payment of medical services from the Government of Guam, 19 19 Medicaid program and $49 per month from Welfare benefits. 20 20

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25 25 Bueno v. Bueno; DM0325-15 FFCL Re: Complaint for Divorce & Spousal Support Page 4 of 13 1 16. Plaintiff is employed with the Guam Police Department as a police officer. As of April, 1

2 2016, Plaintiff earned a base pay of $22.35 per hour. Therefore, Plaintiff's base annual 2

3 salary is approximately $42, 912. 2 3

4 4 17. Defendant requests that Plaintiff be ordered to pay reasonable attorney's fees for 5 5 requiring Defendant to defend and prosecute this litigation. The Court conditionally 6 6 allocated $300 per month towards Attorney's Fees, until the fees are fully paid, unless 7 7 and until Defendant's attorney submits itemized involves and detailed charges are 8 8 deemed reasonable. See FFCL Following Evidentiary Hearing (Apr. 26, 2016). 9 9 18. No reconciliation is possible between the parties. 10 10

11 CONCLUSION OF LAW 11

12 I. GROUNDS FOR DISSOLUTION 12

13 1. Irreconcilable differences are those grounds which are determined by the Court to be 13

14 substantial reasons for not continuing the marriage and which make it appear that the 14

15 marriage should be dissolved. 19 GCA § 8219. 15

16 16 2. If the statutory requirements for granting dissolution of the marriage are satisfied, the 17 17 trial court does not have discretion on whether or not to grant the dissolution of the 18 18 marital relationship. Speicher v. Speicher, 2013 Guam 11,

2 marriage should be denied because of the doctrine of recrimination, specifically, based 2

3 3 on her ability to prove Plaintiff committed adultery. 4 4 5. Dissolution of marriage must be denied "[w]hen the cause is adultery and the action is 5 5 not commenced within two (2) years after the commission of the act of adultery, or 6 6 after its discovery by the injured party.... " /d. § 8314(a). Adultery is defined as the 7 7 voluntary sexual intercourse of a married person with a person other than the offender's 8 8 husband or wife. Id. § 8204. 9 9 6. Sections 8301 and 8312 are identical to California Civil Code Sections 111 and 122, 10 10

11 until California repealed their statutes in 1969. The Guam Supreme Court consistently 11

12 holds that in such situations, the Court should look to California case law for 12

13 interpretation. People v. Angoco, 2007 Guam 1. California cases subsequent to the 13

14 adoption of the Guam codes, while not binding, are persuasive. Tabor v. Ulloa, 323 F. 14

15 2d 823, 824 n. 5 (9th Cir. 1963). 15

16 16 7. Similar to the doctrine of unclean hands, the doctrine of recrimination "is neither 17 17 puristic nor mechanical, but an equitable principle to be applied according to the 18 18 circumstances of each case and with a proper respect for the paramount interests of the 19 19 community at large." De Burgh v. De Burgh, 39 Cal. 2d 858, 870 (1952) (emphasis 20 20 added). 21 21 8. The Court is convinced that the doctrine of recrimination is triggered by the facts of this 22 22 case; however, whether application is proper is analyzed, below. Defendant 23 23

24 demonstrated Plaintiff committed adultery through witness testimony, particularly 24

25 25 Bueno v. Bueno; DM0325-l5 FFCL Re: Complaint for Divorce & Spousal Support Page 6 of 13 1 through Plaintiff's own admission that he sought intimacy with someone else, namely 1

2 Lillian Perez. 2

3 3 9. "To decide the issue raised by a plea of recrimination, the court must consider the 4 4 prospects of reconciliation, the comparative fault of the plaintiff and the defendant, and 5 5 the effect of the marital strife upon the parties, their children, and the community." De 6 6 Burgh, 39 Cal. 2d at 873. In this case, the Court finds there are no prospects of 7 7 reconciliation. As to the comparative faults of the parties, this factor heavily weighs 8 8 against the Plaintiff, particularly in that he was not faithful to Defendant, especially 9 9 prior to their separation. Lastly, the Court is convinced that continuation of the 10 10

11 marriage would constitute serious hazard to the mental and physical health of both 11

12 parties. Plaintiff testified that he has physically abused Defendant during their marriage. 12

13 Defendant added that Plaintiff would often yell at her for the debts the couple incurred 13

14 as a result of her medical condition. 14

15 10. The Court, moreover, is concerned with the "social considerations which make it 15

16 16 contrary to public to policy to insist on the maintenance of a union which has utterly 17 17 broken down." De Burgh, 39 Cal. 2d at 864 (citing Hill v. Hill, 23 Cal.2d. 82, 93 18 18 (1974); Weil v. Weil, 37 Cal.2d. 770, 783-784 (1951)). Further, the Court finds that it 19 19 would be "a degradation of marriage and frustration of its purpose" for this Court to 20 20 deny a dissolution of the marriage where the marriage is so clearly "irretrievably 21 21 wrecked." Barton v. Barton, 230 Cal. App. 2d 43, 48 (1964) (quoting De Burgh 39 Cal. 22 22 2d at 864). As held in Barton, a finding of adultery on the part of the husband does not 23 23

24 justify denying him a divorce where there was blame on both sides in that the wife 24

25 25 Bueno v. Bueno; DM0325-15 FFCL Re: Complaint for Divorce & Spousal Support Page 7 of 13 1 often refused marital relations and repeatedly berated the husband as being an unfit 1

2 husband and an immoral person. /d. 2

3 3 11. Plaintiff testified no reconciliation is possible between the parties and that he has not 4 4 been intimate with his wife since 2001. Plaintiff also testified that Defendant's medical 5 5 condition and inability to work has been a constant basis for disagreements. In addition, 6 6 Plaintiff complained that he was "tired of doing everything." Defendant also testified 7 7 that Plaintiff was involved in a series of affairs, "one girl after another." Defendant 8 8 stated that Plaintiff was not discreet about his affair, for example, Plaintiff would 9 9 inform Defendant when he would spend the night with other people or require that 10 10

11 Defendant step outside of the couple's room or vehicle when he is on the phone with 11

12 another woman. 12

13 12. Accordingly, based on the evidence and witness testimonies, the Court hereby finds 13

14 that the dissolution of the marriage based upon Plaintiff's adultery is warranted. 14

15 II. COMMUNITY PROPERTY, SEPARATE PROPERTY, AND DEBT 15

16 16 1. Guam law requires "the community property ... shall be assigned as follows ... [i]f the 17 17 decree be rendered on the ground of adultery or extreme cruelty, the community 18 18 property shall be assigned to respective parties in such proportions as the court, from all 19 19 the facts in the case, and the condition of the parties, may deem just." 19 GCA § 20 20 8411(a) (emphasis added). 21 21 2. Separate property is defined as "property acquired by either spouse before marriage or 22 22 after entry of a decree of dissolution of marriage." /d. at§ 6101 (a)(l). 23 23

25 25 Bueno v. Bueno; DM0325-15 FFCL Re: Complaint for Divorce & Spousal Support Page 8 of 13 1 3. Plaintiff is awarded as his sole and separate property the land trust property located in 1

2 Yigo acquired before marriage. 2

3 3 4. The court awards each party one-half of the value of Plaintiffs retirement plan 4 4 accumulated from the date of the parties marriage to the date of separation in 5 5 November, 2014 or one-half of $73,367.93 (in regular retirement) and $3,166 (in 6 6 supplemental retirement), subject to final verification by the Government of Guam 7 7 Retirement Fund. 8 8 5. The Court further awards the Mazda Protege to the Defendant and the Toyota Tacoma 9 9 to the Plaintiff, as it is currently divided. 10 10

11 6. The Court orders Plaintiff to assume responsibility for the automobile loans with First 11

12 Hawaiian Bank for the Toyota Tacoma, Citibank Visa credit card debt, and the Guam 12

13 Memorial Hospital debt. 13

14 III. SPOUSAL SUPPORT 14

15 1. "When an action for dissolution of marriage is pending, the court may, in its discretion, 15

16 16 require the husband or wife, as the case may be, to pay as alimony any money 17 17 necessary to enable the wife, or husband, to support herself ... or himself." 19 GCA § 18 18 8402. 19 19 2. The language in Section 8402 was interpreted by the Guam Supreme Court in Cruz v. 20 20 Cruz, 2005 Guam 3. Specifically, the Guam Supreme court opined "[w]hat is 21 21 'necessary' rests in the sound discretion of the trial court .... to be exercised in view of 22 22 the circumstances of the parties, their several necessities, and the pecuniary ability of 23 23

24 the husband." Cruz v. Cruz, 2005 Guam 3, Cj[ 10 (citations omitted). Some factors the 24

25 25 Bueno v. Bueno; DM0325-15 FFCL Re: Complaint for Divorce & Spousal Support Page 9 of 13 1 trial court may consider include "the parties' standard of living, the length of marriage, 1

2 and the age, education, and ability of both parties." lung Ye Kang v. Byong Hi Kang, 2

3 3 2014 Guam 25,

11 primarily from Martratt, to survive. Defendant resides with her sibling, but has applied 11

12 for housing assistance under GHURA. If approved, Defendant would be required to pay 12

13 about 30% of the rent required, roughly $200 or $300 per month. If removed as a 13

14 beneficiary of Plaintiffs insurance, Defendant would be required to make higher 14

15 payments for medical services and, presumably, insurance. 15

16 16 5. Plaintiff is employed with the Guam Police Department. Plaintiff resides with his 17 17 girlfriend, Ms. Perez, his mother, his sister, and sister's two children. 18 18 6. Based on the evidence provided, the Court finds that Defendant is entitled to permanent 19 19 spousal support and that Plaintiff is capable of making such payments. 20 20 7. The reasonable amount for spousal support has been previously discussed by this Court 21 21 in its FFCL Following Evidentiary Hearing (Apr. 26, 2016). The court's findings 22 22 remain valid and are incorporated herein by reference. As previously held, the Court 23 23

24 finds $800 per month for spousal support reasonable. 24

25 25 Bueno v. Bueno; DM0325-15 FFCL Re: Complaint for Divorce & Spousal Support Page 10 of 13 1 IV.ATTORNEY'SFEES 1

2 1. "When an action for dissolution of marriage is pending, the court may, in its discretion, 2

3 3 require the husband or wife, as the case may be, to pay as alimony any money 4 4 necessary to enable the wife, or husband, to ... prosecute or defend the action." 19 5 5 GCA § 8402. 6 6 2. The Guam Supreme Court in Cruz v. Cruz, 2005 Guam 3, held that the trial court did 7 7 not err in awarding attorney's fees "where its decision was justified by the evidence and 8 8 reached upon by weighing relevant facts."

11 parties to pay, the required party was the sole source of financial income during the 11

12 marriage, and financial abilities of the parties post-divorce. 2005 Guam 3,

13 3. The court also found that "[n]ecessity may be proved only by showing that her need for 13

14 proper support and the expenses of the litigation exceed her available resources. This 14

15 means that the ... judge must be informed in detail not only as to her needs, but also her 15

16 16 resources." !d. (citations omitted). 17 17 4. Similarly, Plaintiff was the sole provider and handled all of the finances throughout the 18 18 parties' marriage. Moreover, Defendant is disabled and unable to work due to her 19 19 permanent medical condition and would have to rely on public assistance and familial 20 20 support to survive. Defendant testified that she barely had economic resources during 21 21 the marriage and is left with even less now, post-separation. Accordingly, the Court is 22 22 convinced that Plaintiff should be required to pay the associated legal fees and costs to 23 23

24 enable Defendant to defend this action. 24

25 25 Bueno v. Bueno; DM0325-15 FFCL Re: Complaint for Divorce & Spousal Support Page 11 of 13 1 5. As previously held, the Court will not make final order of approved payments until 1

2 Defendant's attorney submits itemized invoices and the detailed charges are deemed 2

3 3 reasonable by the Court. Approved amounts shall be paid at the rate of $300 per month 4 4 until fully paid by Plaintiff. 5 5 ORDER 6 6 Based on the above findings and conclusions, the Court hereby orders the following: 7 7 1. The Court ORDERS the dissolution of the parties' marriage on the grounds of the 8 8 Plaintiff's adultery. 9 9 2. The Court AWARDS the following regarding community property, separate property 10 10

11 and debt: 11

12 a. Plaintiff is awarded land trust property m Yigo as his sole and separate 12

13 property. 13

14 b. Each party is awarded one-half (Y2) of Plaintiffs retirement accumulated 14

15 during the marriage or one-half of $73,367.93 (in regular retirement) and $3,166 15

16 16 (in supplemental retirement), subject to final verification of amounts by the 17 17 Government of Guam Retirement Fund. 18 18 c. Mazda Protege awarded to the Defendant and the Toyota Tacoma to the 19 19 Plaintiff. 20 20 d. The Court orders Plaintiff to assume responsibility for the automobile loans 21 21 with First Hawaiian Bank for the Toyota Tacoma, Citibank Visa credit card 22 22 debt, and the Guam Memorial Hospital debt. 23 23

25 25 Bueno v. Bueno; DM0325-15 FFCL Re: Complaint for Divorce & Spousal Support Page 12 of 13 1 3. The Court ORDERS payment of eight hundred dollars ($800) per month to Defendant 1

2 for permanent spousal support effective from the date of the issuance of this FFCL. 2

3 3 4. The Court ORDERS Plaintiff to pay the expenses of Defendant's attorney's fees, 4 4 subject to the submission of a Bill of Costs to the Court and further order reducing fees 5 5 and costs to a sum certain. 6 6 a. Defendant's attorney shall submit a Bill of Costs and itemized statement to the 7 7 Court within thirty (30) days of the issuance of these FFCL. 8 8 5. The Court finds that the Plaintiff willfully failed to pay Defendant spousal support 9 9 pursuant to the April 26, 2016 order, or any part thereof. The Court will allow Plaintiff 10 10

11 to avoid punishment for his contemptuous behavior by paying an extra $200 per month 11

12 toward the spousal support arrears of $22,400. 3 12

13 13 Judgment shall follow separately, incorporating the Orders set forth herein. 14 14

15 SO ORDERED this 12th day of January, 2018. 15

16 16

17 17

18 SERVICC ''lA CQURT 18 HONORABLE MARIA T. CENZON 19 JUDGE, SUPERIOR COURT OF GUAM 19

24 3 The FFCL Following Evidentiary Hearing issued by this Court ordered payments of temporary spousal support 24 nunc pro tunc to August 31, 2015. $800 x 28 months (August 2015- December 2017). 25 25 Bueno v. Bueno; DM0325-15 FFCL Re: Complaint for Divorce & Spousal Support Page 13 of 13