Capistrano v. Capistrano

Opinion

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SUPERIOR C URT

OF GUA

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6 IN THE SUPERIOR COURT OF GUAM

7 RUDY RIVERA CAPISTRANO, ) Case No. DM019944 8 )

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9 Plaintiff, )

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10 v. ) DECISION AND ORDER )

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LEONOR ARELA CAPISTRANO, )

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Defendant. )

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14 INTRODUCTION 15 This matter came before the Honorable Alberto C. Lamorena, III on October 11, 2019 16 arnd October 14, 2019 for hearing on Plaintiff Rudy Rivera Capistrano’s (“Rudy”) Counter 17

18 Motion for Termination of Spousal Support (“Counter Motion”). Defendant Leonor Arela

19 Capistrano (“Leonor”) appeared with Attorney Daniel S. Somerfieck. Rudy appeared with 20 Attorney Nicole G. Cruz. After considering the arguments and the testimony of the parties and 21 the applicable law, the Court now issues this Decision and Order and DENIES Rudy’s Counter 22 Motion.

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24 BACKGROUND

25 The action initially arose from a divorce complaint filed by Rudy on April 7, 2014. 26 Verified Complaint forDivorce (Apr. 7, 2019). On June 22, 2016, the Court issued its findings 27 of facts and Conclusions of Law and entered both an Interlocutory and final Decree of Divorce.

28 Findings of fact & Conclusions of Law (“FFCL”); Interlocutory Decree of Divorce

Decision and Order DM0 199-14, Capistrano v. Capistrano

(“Interlocutory Decree”); Final Decree of Divorce (“Final Decree”). Both the Interlocutory 1

2 Decree and the Final Decree memorialized the terms of the FFCL, granting divorce on grounds

of adultery and ordering Rudy to “. . . pay $600.00 per month to Defendant as spousal support..

4 .“ Interlocutory Decree at 2; Final Decree at 2.

5 On March 21, 2019, Leonor filed a Motion for Contempt, seeking to compel Rudy to 6 pay past owed spousal support.’ Rudy filed an opposition to the Motion for Contempt which 7 contained a counter-motion to terminate spousal support. See Counter Motion (Apr. 18, 2019).

$ Rudy asks the Court to terminate his spousal support obligation on the basis that there has been

10 a change in circumstances, making spousal support no longer necessary. Counter Motion at 6.

11 Leonor filed an opposition to Rudy’s Counter Motion, arguing that while her income has 12 . .

increased, one of her primary employers is expected to close down soon, making continued 13 spousal support necessary. Opposition to Plaintiff’s Counter Motion to Reduce (“Opposition”)

14 at 2 (Sept. 27, 2019). Rudy filed a reply, arguing the California statutory factors support a

16 finding that spousal support is no longer necessary. Plaintiffs Reply to Defendant’s Opposition

to Plaintiff’s Counter Motion to Terminate Spousal Support (“Reply”) at 3 (Oct. 4, 2019); see 18 Cal. Farn. Code § 4320. The Court held a hearing on the matter on October 11, 2019. The Court 19 heard further testimony and arguments of counsel on October 14, 2019. After hearing 20

21 arguments, the Court took the matter under advisement. Minute Entry (Oct. 14, 2019).

22 DISCUSSION

Courts may, in their discretion, vary, alter, or revoke an order for permanent support as

they may deem necessary. 19 GCA § 8402(b). The Court provided that “In the event of a 25 change of circumstances, the Parties may come before the Court to modify the Court’s [spousal 26

27 support] order.” FFCL at 6. A trial court, in considering whether to modify a spousal support

28 The Court addressed this issue in its September 30, 2019 Decision and Order.

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Decision and Order . DM0 199-14, Capistrano v. Capistrano

order, considers the same statutory criteria as it considered in making the initial order. In re

2 Mci rriage of Khera & Sameer, 206 Cal. App. 4th 1467, 1475 (2012).

3 California has numerous statutory factors which constrain a court’s award of permanent

support. See In re Mzrriage of Murray, 124 Cal. Rptr. 2d 342, 351 (Ct. App. 2002). These 5 include “[tJhe extent to which the earning capacity is sufficient to maintain the standard of 6

living established during the marriage,” the “ability of the supporting party to pay spousal

8 support, taking into account the supporting party’s earning capacity, earned and unearned

income, assets, and standard of living,” the “duration of the marriage,” the “age and health of 10 the parties,” and “[a]ny other factors the court determines are Just and equitable.” Cal. Fam.

11 Code § 4320. See also Gray i’. Gray, 103 So. 3d 962, 966 (Fla. Dist. Ct. App. 2012)

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13 (“Permanent periodic alimony is used to provide the needs and necessities of life to a former

14 spouse as established during the parties’ marriage; in determining whether to award permanent 15 periodic alimony, the trial court is to weight the parties’ respective needs and ability to make 16 alimony payments.”).

17 A. There has not been a sufficient change of circumstances justifying termination of

19 spousal support.

20 Rudy argues that because Leonor recently received $19,800.00 in past owed spousal 21 support and expects to receive another $27,000.00 from Rudy’s retirement account, Leonor will

no longer have a need for spousal support since she will have so much cash readily available.

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However, circumstances accounted for in the previous order cannot constitute a change of

25 circumstances. Khera & Sameer, 206 Cal. App. 4th at 1476. Leonor was already owed the

26 spousal support she received as a back payment, and the property division in the FFCL

accounted for Leonor receiving a portion of Rudy’s retirement accoLint. FFCL at 4 & 5. The

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Decision and Order . DM0 199-14, Capistrano v. Capistrano

facts do not support a finding of a change of circumstances. Further, as explained below, the

2 California statutory factors do not support a finding of a change in circumstances.

3 1. Earning Capacity

In 2017, Rudy earned a gross income of $117,643.29. Reply, Ex. A at 5. In 2018,

Rudy’s salary increased by $6,604.89, earning a total gross income of $124,248.18. Id. at 6. In 6 2018, Leonor’s salary earning a total gross income of $27,940. Opposition, Attach. A at 2. This

is an increase of around $8,180.00 since the Final Decree of Divorce in 2016. Reply at 2; FFCL

at3.

10 Both parties have increased their respective incomes. While both incomes have 11 increased at somewhat similar rates, Rudy’s earning capacity is significantly higher than 12

13 Leonor’s, making almost $100,000.00 more per year than Leonor. As both parties’ respective

14 salaries have increased in similar ways, the Court does not find this factor supports a finding of 15 a change in circumstances sufficient to terminate spousal support.

16 2. Ability to Pay

17 Rudy alleges that while his net income is around $5,000.00 per month, his monthly 18 19 expenses are around $7,000.00 per month. Counter Motion at 6. In support of this notion, Rudy

20 submitted a declaration, outlining his monthly expenses and debts. See Plaintiff’s Declaration in 21 Support of Plaintiff’s Opposition and Countermotion (“Rudy Dccl.”) at 3 (Apr. 18, 2019).

Generally, Rudy’s testimony regarding his expenses matched the list provided.2

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25 2 Leonor appears to argue in closing that because the f5gures provided in Rudy’s declaration did not perfectly match 26 the figures provided in the list that Rudy has perjured himself or simply macIc up the numbers provided. Leonor argues that the hearing “reveals” that the figures provided in the list are only estimates. However, Rudy made clear 27 in his declaration that the figures provided were estimates in writing “Total (estimated): $7,090.00.” Rudy Dccl. at 3. Further, the Court notes that Rudy submitted the declaration in April 2019. six months prior to the hearings on 28 this matter. It is not surprising that figures for bills kr utilities may change in six months, civen their variable nature.

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Decision and Order DM0199-14, Capistrano v. Capistrano

During the hearings on this matter, however, Rudy provided further clarifying

2 information about his expenses and debts. for example, Rudy, since the submission of the 3 declaration in April, has since paid off the “Care Credit (Veterinary)” credit card. Court Recording at 3:25:19 (Oct. 11, 2019) (“CR1”). Rudy further indicated that he has moved

residences since the submission, with his rent going from $1,200.00 per month to $1,100 per

month. CRY at 4:08:37.

8 However, the Court is not convinced that some of Rudy’s newly added expenses,

incurred after the dissolution of marriage, are sufficient to justify a change in circumstances.

10 For example, while the Court is sympathetic to Rudy’s need for a special diet due to medical 11 issues, causing his monthly grocery bill to rise (CRY at 4:02:10), the Court is not sympathetic to 12

13 Rudy’s expense of spending $200 to $300 per month on snacks for his daughter-in-law. CR1 at

14 4:02:24. The Court does not see how the added expense of $100.00 for “Salon/Spa” for Rudy’s 15 wife and daughter-in-law, nor the expense of $1,000.00 per month for “Dining/Entertainment”

16 (on top of his grocery bill), sufficiently justifies a change in circumstances. Rudy DecI. at 3.

17 While Rudy’s expenses to support his daughter and mother in the Philippines may be 18

19 reasonable, the Court does not find that Rudy is under any obligation to pay to send his wife’s

20 brother to S.W.A.T. school in the Philippines. CR1 at 4:07:03. These added expenses alone 2!

constitute more than twice the amount of the spousal support in question.

Rudy further argues that he is in debt due to taking a 401k loan to pay past due spousal 23 support. Rudy Decl. at 3. Rudy confirmed at the hearing that the purpose of taking out such a 24

25 loan was to pay the past due spousal support. CR1 at 4:13:20. As explained in Part A, the FFCL

26 already contemplated Rudy paying Leonor said spousal support. The fact that he did not pay 27

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Decision and Order DM0 199-14, Capistrano v. Capistrano

and later had to take a large sum out to pay it cannot be said to be a debt that supports a finding

2 of a change of circumstances.

3 Rudy’s voluntarily increased spending habits cannot be said to justify a finding for a

change in circumstances sufficient to terminate spousal support. The Court is not convinced,

given these expenses proposed, that Rudy does not have the ability to pay spousal support.

6 3. Duration of the Marriage

8 The parties were married for five years. CR1 at 4:19:46. In determining whether to

modify spousal support, courts should consider “The goal that the supported party shall be self-

10 supporting within a reasonable period of time.” Cal. fam. Code § 4320(1). “[A] ‘reasonable 11 period of time’ for the purposes of this section generally shall be one-half the length of the 12

13 marriage.” Id. “However, nothing in this section is intended to limit the court’s discretion to

14 order support for a greater or lesser length of time, based on any other factors listed in this 15 section.. and the circumstances of the parties.” Id.

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16 Based on the statutory suggestions, permanent spousal support should be limited to two 17 and a half years. However, the Court finds the other statutory factors and the circumstances of

19 the parties, as explained throughout this Decision and Order, provide a sufficient basis to

20 maintain the current spousal support obligation. 21 4. Age and Health of the Parties 7,)

Rudy is currently fifty-three years old. CR1 at 4:16:55. Rudy currently suffers from a

heart condition which he described as “SVT.”3 Rudy’s condition requires him to exercise and

25 adhere to a special diet. CR1 at 4:17:30. Rudy additionally attends Cognitive Behavioral 26 Therapy. CR1 at 4:17:48. 27

28 The parties did not clarify what this acronym stood for.

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Decision and Order DM0199-14, Capistrano u. Capistrano

Leonor is currently forty-six years old. Reply at 3. Leonor explained that she currently

2 suffers from menstrual issues, causing her difficulty at work. Court Recording at 10:54:47 (Oct.

3 14, 2019) (“CR2”). Leonor testified that she intends to undergo surgery to address her current 4 medical issue. CR2 at 10:55:17.

5 Both parties have their respective medical issues which they are trying to address.

6 further, the Court does not find the age of the parties, being relatively close at fifty-three and

$ forty-six, to be a controlling factor in determining whether to terminate Rudy’s spousal support

obligation.

I0 Other Equitable factors

Rudy provides financial support to his daughter and mother who live in the Philippines.

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13 Similarly, Leonor also provides financial support to her mother who lives in the Philippines.

14 CR2 at 10:52:00.

The Court finds significant the fact that Leonor has to work four jobs to maintain her 16 current lifestyle and expenses. Contrary to Rudy’s assertion, the Court is not convinced that 17 Leonor, working four jobs, is “able to support herself and live comfortably.” Counter Motion at

6. The Court understands that the goal of spousal support is to help the dependent spouse to

20 become self-supporting, but the Court is not convinced that, under the current circumstances, 21 this has occurred. See Cal. fam. Code § 4320(1).

22 All factors considered, the Court does not find that there is a change in circumstances 23 sufficient to support termination of Rudy’s spousal support obligation.

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Decision and Order DM0 199-14, Capistrano v. Capistrano

CONCLUSION

7 For the reasons stated above, the Court hereby DENIES Rudy’s Counter Motion. The

3 Court does not find there is a sufficient change in circumstances which would justify 4 termination of Rudy’s spousal support obligation.

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7 IT IS SO ORDERED on this 25th day of November, 2019

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10 HONORABLE ALBERTO C. LAMORENA III 11 Presiding Judge, Superior Court of Guam 12

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