Cruz v. Cruz, Jr.

Opinion

IN THE SUPERIOR COURT OF GUAM 2

3 MELONY J. CRUZ, ) DOMESTIC CASE NO. DM0195-11 4 Plaintiff, ) 5 ) DECISION AND ORDER RE. v. ) PLAINTIFF'SMOTIONTOMOD~' 6 ) FINAL DECREE RE: CUSTODY GREGORIO B. CRUZ, JR., ) 7 ) Defendant. ) 8

9 --------------------------~) INTRODUCTION 10

11 This matter came before the Honorable Maria T. Cenzon for a hearing on Melony J.

12 Cruz's ("Plaintiff') Ex Parte Motion for Order to Show Cause to Modify Custody ("OSC") 13 filed on July 10, 2013 and heard ex parte on July 11, 2013. At that time, the Court noted that 14 the two minor children were in Plaintiffs custody in Hawaii and declined to address the OSC 15 on an ex parte basis. The Court scheduled a hearing for July 24, 2013 as a Motion to Modify 16

17 Final Decree RE: Custody ("Motion to Modify Custody"). At the hearing, which took place

18 over two days on July 24-25, 2013, the Plaintiff was represented by Attorney Daniel Somerfleck 19 and Attorney Ron Moroni appeared on behalf of Gregorio B. Cruz ("Defendant"). The Court 20 heard from Plaintiff, Defendant, and Defendant's girlfriend Moana Borja, as well as the two 21

22 minor children in an in-camera proceeding. After having considered the testimony and other

23 evidence presented at the hearing, the Motion, and the applicable statutes and case law, this

24 Court issues the following written Decision and Order DENYING the Plaintiffs Motion to 25 Modify Custody. 26 II 27

28 II

Page 1 of7 1 BACKGROUND 2 1. Interlocutory Decree for Dissolution of Marriage 3 Plaintiff and Defendant were granted an Interlocutory Decree for Dissolution of 4 Marriage ("Divorce Decree") on August 2, 2012 by the Superior Court of Guam. The Decree 5

6 gave Plaintiff and Defendant joint legal custody of the minor children. Interlocutory Decree for

7 Dissolution of Marriage at 2 (Aug. 2, 2012). Custodial, residential custody of the minor 8 children, Giana Kaeline James Cruz (Dob 9/6/03) and Gravis Michael James Cruz (Dob 9 5/13/06) was granted to Defendant beginning June 2012, subject to the reasonable visitation 10

ll rights of the Plaintiff for each summer beginning in 2013 and odd-numbered years for the

12 winter holiday period. ld. at 2-3. The Decree further ordered that the Defendant relocate his 13 other, adult children to a different residence "to assure there is ample room in the house for the 14 minor children." ld. at 3. Finally, "[n]either party shall allow smoking inside their residence 15 while the children are staying with them." ld. at 6. 16

17 2. Ex Parle Order to Show Cause

18 While the minor children were staying with Plaintiff in Hawaii during their summer 19 visitation, she filed an ex parte Order to Show Cause ("OSC") on July 10, 2013 requesting that 20 the Court modify the custody decree to give her "primary physical custody". Decl. of Plaintiff 21 at 3 (July 10, 2013). The primary grounds upon which Plaintiff based her request for 22

23 modification were: 1) concern about the adult children of the Defendant residing in the bouse,

24 2) the arrest of one of these adult children, 3) Defendant allowing smoking in the house, and 4) 25 the June 15, 2013 arrest and indictment of the Defendant on charges of criminal mischief and 26 terrorizing as third degree felonies and for misdemeanor assault. Ex Parte Mot. for Order to 27

28 Show Cause and Modify Custody and Mem. of P. & A. at 3 (July 10, 2013).

Page2of7 The Court held an ex parte hearing on the OSC on July 11, 2013 where both parties 2 were represented and noted that because Plaintiff currently had physical custody of the minor 3 children, they were not in any immediate danger and an ex parte hearing was procedurally 4 inappropriate. Furthermore, the current court-ordered custody arrangement entitled Plaintiff to 5

6 retain physical custody of the minor children for approximately one more month. However, the

7 Court would entertain a Motion to Modify Custody in an expedited manner and scheduled an 8 evidentiary hearing with both parties for July 24, 2013. 9 3. Hearing on Motion to Modify Custody 10

11 The Court held hearings over two days on July 24-25, 2013 where it heard testimony

12 from Plaintiff, Defendant, Defendant's live-in girlfriend Cheryl Borja, and the two minor 13 children and accepted six exhibits from the Plaintiff and four exhibits from the Defendant. 14 During this hearing, the Court considered the status of the Defendant's pending criminal case, 15 the arrest of one of the Defendant's adult children after an altercation at the Defendant's 16

17 residence, testimony of all the witnesses regarding the routines and living conditions at each of

18 the party's respective households, the minor children's school records in both Hawaii and 19 Guam, and the preferences of the minor children as expressed in their in camera interview. At 20 the conclusion of the hearing, the Court took the Motion to Modify Custody under advisement 21 and ordered that the custody order remain in place absent further order of this Court. 22

23 LAW AND ANALYSIS

24 1. Applicable Law 25 This Court has jurisdiction to modify the custody arrangement originally set forth in the 26 Interlocutory Decree for Dissolution of Marriage pursuant to 19 GCA § 8404(f) ("[a]ny custody 27

28 award shall be subject to modification or change whenever the best interests of the child require

Page 3 of7 or justify such modification or change ...") (See also Lanser v. Lanser, 2003 Guam 1419). In 2 the instant case, "the burden of showing a sufficient change in circumstances is on the party 3 seeking the change of custody." In reMarriage of Carney, 24 Cal.3d 725, 731 (1979) (citing 4 Prouty v. Prouty, 16 Cal.2d 190, 193 (1940); In reMarriage of Kern, 87 Cal.App.3d 402, 410- 5

6 411 (1978); In reMarriage of Mehlmauer, 60 Cal.App.3d 104, 108-109 (1976). For this Court

7 to justify a modification of the original custody decree, Plaintiff/Petitioner here must present a 8 "persuasive showing of changed circumstances affecting the child," (Lanser at n.2 (quoting 9 Carney at 38)), because "it is desirable that there be an end of litigation and undesirable to lO

11 change the child's established mode of living." Id. Based upon the evidence presented by the

12 parties during the hearings on this matter, the Court determines that Plaintiff has not met that 13 burden; therefore, the Court will not disturb the original custody decree. 14 2. Defendant's Adult Children 15 Plaintiff alleges that Defendant has failed to relocate his adult children from his house to 16

17 ensure sufficient room for the minor children, as ordered in the Divorce Decree. Another

18 concern expressed by the Plaintiff is the arrest of one of these adult children, Gregorio, Jr.. 19 Testimony from the Defendant and Cheryl Borja demonstrate these two allegations are 20 connected. The testimony establishes that Defendant lives in a three bedroom, two bathroom 21 house with the minor children and his live-in girlfriend, Cheryl Borja. The Court finds credible 22

23 the testimony by Defendant and Ms. Borja that the adult children no longer reside in

24 Defendant's home. Although it is undisputed that Defendant's adult children will stay 25 overnight on occasion, the frequency does not rise to the level constituting "residing" for the 26 purposes of the restriction set forth in the Final Decree. In fact, the testimony presented during 27

28 the hearing established that the adult son was purportedly arrested after an argument with the

Page4 of7 Defendant because Defendant would not permit his son to move back into the house. Although 2 it is reasonable Plaintiff would be concerned by these events, the Court also fmds that the 3 children were unaffected and unaware of the incident which took place away from the 4 Defendant's home. Importantly, the Defendant could hardly be faulted for the arrest of his adult 5

6 son when the dispute allegedly arose out of Defendant's compliance with the court-ordered

7 custody conditions. 8 Defendant's Pending Criminal Charges 9 The pending criminal charges against Defendant are both relevant and admissible, even 10

11 if Defendant has not been convicted, in determining if modification of custody is warranted

12 following the "best interests of the child" standard. See e.g. In re J. W., 113 S.W.3d 605, 612 13 (Tex. App. 2003) and In the Interest of K.LR., 162 S.W.3d 291, 305 (Tex. App. 2005). 14 However, this Court is guided by the principal that "if not linked to the child's interest, the 15 matter should not be considered." Flores v. Cruz, 1998 Guam 30, 114. Although the pending 16

17 criminal charges of criminal mischief, terrorizing, and assault are before a different court, this

18 Court may take note of the nature and substantive basis of these charges in determining whether 19 or not to modify custody. See Gina v. William, 823 A.2d 1274, 1280 (Conn. App. Ct. 2003). 20 Nearly all of the Defendant's incarceration occurred while Plaintiff had custody of the children 21 in Hawaii. Therefore, it cannot be said that the incarceration itself directly affected the 22

23 wellbeing of the children because they were not in Defendant's custody at the time of his 24 detention. 25 Furthermore, it was established that the week Defendant was incarcerated prior to the 26 hearing before this Court was due to an error and the Warrant of Arrest was vacated by Judge 27

28 Perez on July 23, 2013. That period of incarceration will, therefore, not be considered by this

Page 5 of7 Court in reaching its decision. 2 Notwithstanding the charges which have been filed against the Defendant, the Court, at 3 this time~ does not fmd sufficient grounds warranting the modification of the custody order. 4 During the hearing of this motion, the Defendant indicated that he intended to advance a 5

6 reasonable defense to the criminal charges against him and, therefore, absent any changed

7 circumstances, the Court does not fmd the pending charges a compelling basis for modifying 8 custody. However, the Court certainly has jurisdiction to modify the order of custody when the 9 best interests of the children require and, should the Defendant be convicted, the Court would 10

11 entertain such a motion at that time. It must be noted that the Defendant stated on the record

12 that, in the event a conviction led to his incarceration, he would agree to send the minor children 13 to live with Plaintiff. 14 4. Plaintiff's Housing in Hawaii 15 During Plaintiff's testimony, she presented an alternate living arrangement in Hawaii 16

17 should custody be modified in her favor. However, the alternate scenario, in which the two

18 minor children would live with their mother, her boyfriend and their half-siblings aged 16, 2 and 19 6 months, in a two bedroom apartment, located on the seventh floor of a high rise building does 20 not present a more desirable living arrangement. This arrangement alone does not present a 21 more desirable, safer environment justifying a custody modification that is in the minors' best 22

23 interest. In Guam, the children also have the advantage of being in close proximity to relatives,

24 and to outside, after-school activities. Thus, the living environment in Hawaii does not alone 25 give rise to sufficient grounds to modify custody. 26 5. The Minor Children's Performance in School 27

28 The Court fmds it persuasive that the children are performing well in school in Guam,

Page 6 of7 based upon the report cards entered into evidence from the previous two school years. 2 Although there is some concern over the number of times they have been tardy (approximately 3 once every 2 school weeks), it does not rise to the level of excessiveness; and, the number of 4 absences is miniscule. The pages in a school planner which were purportedly signed by the 5

6 older child on behalf of her younger brother did not, by itself, detract from the evidence that that

7 both children have excellent grades, favorable comments by their teachers in academic and 8 character matters, and are involved in extracurricular activities -which are attended to by the 9 Defendant, his girlfriend and the Plaintiffs parents. Testimony of poor personal hygiene and 10

11 dress at school by the Plaintiff was contradicted by Plaintiff's own evidence establishing that

12 the children were dressed appropriately and appeared well-groomed. 13 6. The Minor Children's Familial and Social Ties 14 The evidence presented during the hearing also establishes that the minor children, while 15 in the custody of the Defendant, continue to have a meaningful relationship with their maternal 16

17 grandparents, the parents of the Plaintiff. There is also evidence that many other extended

18 family members and friends of the minor children reside nearby and form an informal support 19 network for the minor children. Although not dispositive facts, the social and familial network 20 that the minor children have in Guam strongly support legal proposition that it is "undesirable to 21 change the child's established mode of living." Lanser at n.2. 22

23 7. Smoking in the Residence

24 The allegation of smoking inside the Defendant's residence is disputed and concerns the 25 Court because it violates the Divorce Decree and because the minor boy has asthma. Although 26 smoking should unequivocally not be allowed inside the residence of either Plaintiff or 27

28 Defendant when they have custody of the children, this Court does not fmd the allegations of

Page 7 of7 I smoking, on their own or weighed with the other factors discussed, sufficient to justify granting 2 Plaintiffs Motion to Modify Custody. 3 CONCLUSION 4 The Plaintiff has failed to meet her burden of showing sufficiently changed s 6 circumstances warranting a modification of custody of the minor children of Plaintiff and

7 Defendant, therefore, for the reasons set forth herein, Plaintiffs Motion to Modify Final Decree: 8 Custody is DENIED. 9 SO ORDERED this 28th day of October. 2013. lO

~~LCENZON ll

13 Judge, Superior Court of Guam 14

Page 8 of7