Cruz v. Cruz

Opinion

202~ OCT 16 PM ,~: 18 2 CLERi'\ OF COURT 3

4 BY:_ _ _ \Jlt 5 IN THE SUPERIOR COURT OF GUAM 6

7 CRYSTAL ROSE CRUZ, DOMESTIC CASE NO. DM0017-19 8 Plaintiff, 9

vs. DECISION AND ORDER lO Re: Motion to Modify Child Support 11 RONNIE JAMES CRUZ, JR., Defendant. 12

14 This matter came before the Honorable Arthur R. Barcinas on July 23, 2024, for a

15 hearing upon the Defendant's Motion to Modify Child Custody and Support ("Motion") filed 16 May 15, 2024. Plaintiff Crystal Rose Cruz ("Plaintiff') was present with counsel, Attorney 17 Vanessa L. Williams. Defendant Ronnie James Cruz, Jr. ("Defendant") was also present with 18 counsel, Attorney Anthony C. Perez. Having reviewed the pleadings and arguments in this 19

20 matter, the Court issues the following Decision and Order.

21 INTRODUCTION 22 The parties were divorced in 2019. As part of the divorce order, child support was 23 originally set at $250 per month, based on Plaintiff having primary custody of the minor child. 24 On May 14, 2024, the parties stipulated to a change in the custody arrangement, granting 25

26 Defendant primary custody for thirty (30) days, followed by joint and equal custody. Based on

27 this change in the custody arrangement, Defendant now argues that the child support amount 28 should be modified accordingly. Defendant requests in the Motion that the child support order Decision and Order Domestic Case No. DMOOl 7-19, Cruz v. Cruz

be modified to reflect his sole custody for May and June 2024, and then adjusted to reflect joint

2 custody afterward. Defendant also requests an exchange of income information between the

3 parties. 4 BACKGROUND 5 In this matter the parties have one ( 1) minor child together. Pursuant to the parties' 6 Interlocutory and Final Judgment of Divorce filed on January 28, 2019, the Court ordered that 7

8 Plaintiff would have primary physical custody of the minor child, and that Defendant would pay

9 $250.00 per month until the minor child reached eighteen (18) years of age. See Interlocutory

Judgment of Divorce § 6(b), (k). The Court also ordered that Defendant would continue to 11 maintain medical and dental insurance for the minor child. Id. § 6(1). 12

13 On May 14, 2024, the Court was presented with and executed a stipulation to modify the

14 custody arrangement, drafted by Defendant's counsel and signed by both parties and their 15 counsels. The stipulation modified the custodial arrangements of the parties. Defendant would 16 have primary physical custody of the minor child for thirty (30) days, beginning May 15, 2024, 17 after which the parties would share joint and equal physical custody of the minor child. The 18

19 stipulation also stated, inter alia, that "[b]oth parties acknowledge and agree that no child

20 suooort arrears exist or are due from either party." 21 On May 15, 2024, Defendant filed the instant Motion, arguing that the change in custody 22 constitutes a substantial and material change in the custody of the minor child, and that 23 modification of the child support would therefore be appropriate. Defendant further requested 24

25 that child support be modified to reflect his sole custody of the minor child for the thirty-day

26 period from May to June, and the joint and equal custody thereafter. 27

Page 2 of 12 Decision and Order Domestic Case No. DM00l 7-19, Cruz v. Cruz

On June 12, 2024, Plaintiff filed the Response to Defendant's Motion to Modify Child

2 Support, arguing that Defendant failed to pay the child support ordered by the Divorce

3 Judgment from February 2019 to May 2024, and now owes $15,750.00 in child support. 4 Plaintiff further asserted that Defendant also failed to provide the minor child with medical or 5 dental insurance pursuant to the Divorce Judgment, forcing Plaintiff to pay over $9,052.57 to 6

provide health and dental insurance for the child. Plaintiff argues that the May 2024 stipulation 7

8 does not constitute a waiver of child support, and that parents generally cannot waive child

9 support arrears by agreement. Finally, Plaintiff does agree that child support should be modified 10 based on the parties' joint physical custody for June 2024 going forward, but does not agree that 11 the new child support modification should take into account the thirty days between May and 12

13 June.

14 On June 20, 2024, Defendant filed a Reply, arguing that the Motion should be granted 15 because it is unopposed, and that Plaintiff should be estopped from arguing that child support 16 arrears exist after stipulating that they do not. Defendant further argues that even if Plaintiff 17 were not estopped, the parties have shared joint physical custody since 2019 despite the Divorce 18

19 Judgment, Defendant has had primary physical custody from 2019 to 2021, and the parties now

20 continue to share joint physical custody. Finally, Defendant argues that the issue of health 21 insurance reimbursement is not properly before the Court, and even if it were, the Divorce 22 Judgment did not dictate that Defendant must reimburse Plaintiff for the health msurance 23 premiums she paid. 24

25 At the hearing, Plaintiff argued that Defendant was still in arrears because he was

26 obligated to pay the disputed amount pursuant to the Divorce Judgment. 27 On July 23, 2024, the Court took the matter under advisement. 28

Page 3 of12 Decision and Order Domestic Case No. DM00l 7-19, Cruz v. Cruz

DISCUSSION

2 Under Guam law, the Court has authority to modify any "order, award, stipulation, or

3 agreement as to child support (whether or not merged or integrated into a decree of divorce or 4 separation) upon a showing of substantial and material change of circumstances." 5 GCA § 5 34121. The provisions of any order regarding maintenance or support may generally be 6 modified only as to installments accruing subsequent to the motion for modification, and only 7

8 upon a showing of a substantial and material change of circumstances. Id. However, once every

9 three (3) years, either parent of a child entitled to child support may petition the Superior Court 10 of Guam, Judicial Hearings Division or the Child Support Enforcement Division for review and 11 adjustment of the child support order without having to show a change of circumstances. 5 GCA 12

13 § 34118(f). For the purposes of child support, "substantial and material change in

14 circumstances" is defined as an increase or decrease in either parent's salary which results in an

15 increase or decrease between the old child support amount and the new child support amount by 16 at least ten percent (10%) for a period of six (6) months. Id. 17 Regarding remedies, the provisions of Guam Code Annotated ("GCA") Title 5, Chapter 18

19 34, governing child support, are applicable to "all actions of child support ... [or] ... separate

20 maintenance unless specifically excluded or specifically made available only to the Department 21 of Public Health and Social Services [("DPHSS"]." Id. § 34151. However, by statute, all 22 remedies contained in GCA Title 5, Chapter 34, specifically available to DPHSS will also be 23 available to persons represented by the Public Defender Service Corporation, Guam Legal 24

25 Services Corporation, or privately retained attorneys, at the discretion of the Court. Id. § 34150.

26 Furthermore, "whenever the Superior Court issues or modifies an order of support in such a 27 case, the order shall include a provision that wage withholding is available as a remedy upon 28

Page 4 of12 Decision and Order Domestic Case No. DM00l 7-19, Cruz v. Cruz

motion of the custodial parent if the absent parent is in arrears. The (Court] may grant such a

2 motion, in its discretion, if the defendant is in arrears in an amount equal to or greater than one

3 month's support." Id. 4 5 GCA § 34105 states that, "the Department [of Law] acting in the best interests of the 5 children and the Island of Guam, may bring an action in its own name or join in an action 6 already in existence against the person or persons responsible for the support of such children," 7

8 to, inter alia, recover back support and any other amounts that may be due and owing under an

9 existing court order, whether owed to the Department or to the custodial parent or other person 10 having custody of the minor child. Id. § 34105(a)(l). 11 a. Modification of Child Support 12

13 In the instant Motion, Defendant argues that the change in custody constitutes a

14 "substantial and material" change sufficient to modify child support, and requests that child 15 support be modified to first reflect a sole custody a1i-angement for Defendant for the months of 16 May and June 2024, and a joint and equal custody arrangement thereafter. Plaintiff agrees that 17 child support should be modified based on the parties' new joint physical custody arrangement, 18

19 but argues that because Defendant's motion to modify was not filed until May 15, 2024, child

20 _suoport of $200.00 for the month was already due and owing for May 2024 at the time of filing. 21 Plaintiff asserts that, for June 2024, Defendant does not have sole custody of the minor child, 22 but is sharing week-on/week-off joint physical custody, and that the Court should modify child 23 support beginning the month of June 2024 according to the child support guidelines and 24

25 reflecting the parties' joint physical custody arrangement. Plaintiff requests that the parties

26 exchange financial information so that they may prepare the worksheets to calculate the new 27 support amount. In his reply, Defendant argues that it was agreed in the stipulation that 28

Page 5 of 12 Decision and Order Domestic Case No. DMOOl 7-19, Cruz v. Cruz

Defendant would have primary physical custody of the minor child for a thirty (30) day period,

2 beginning May 15, 2024, which Defendant asserts would necessitate a child support worksheet

3 based on a sole custody arrangement, rather than a joint custody arrangement. As to the 4 modification itself, Defendant asserts that because Plaintiff does not object to the modification 5 of child support, the motion is resolved subject to a determination of whether a sole or joint 6

custody worksheet is appropriate for May and June 2024. 7

8 Defendant brings the instant motion under 5 GCA § 34118(±), claiming a change in

9 circumstances. The Court defines a "substantial and material change in circumstances" as 10 described under that statute, i.e. "an increase or decrease in either parent's salary which results 11 in an increase or decrease between the old child support amount and the new child support 12

13 amount by at least ten percent (10%) for a period of six (6) months." Id. § 34118(±).

14 Accordingly, the Court does not find that Defendant has met the standard for a change in 15 circumstances as he claims. However, because a motion to modify child support may be brought 16 under§ 34118(±) once every three (3) years without a change in circumstances, and because the 17 parties have stipulated to a modification of the child support arrangement, the Court will grant 18

19 the Motion to Modify Child Support.

20 As to whether a sole or ioint custody worksheet is appropriate for the period from May 21 to June 2024, 19 Guam Administrative Rules and Regulations ("GARR") § 1204(1) establishes 22 what constitutes shared physical custody under Child Support Guidelines. Per 19 GARR § 23 1204(1), "[a] parent has shared physical custody (or shared custody) of children for purposes of 24

25 this guidelines if the children reside with that parent for a period specified in writing in the

26 custody order of at least 40 percent, but no more than 60 percent, of the year, regardless of the 27 status of legal custody." Regardless of whether Defendant had primary physical custody of the 28

Page 6 of12 Decision and Order Domestic Case No. DM00I 7-19, Cruz v. Cruz

minor child for the thirty-day period, the Cami finds that the metric which determines whether a

2 sole or joint custody worksheet should be used is what portion of the time Defendant had the

3 minor child during an entire year. Defendant has not properly established that he had physical 4 custody of the minor child for a period of time greater than 60 percent over the course of the 5 year, and thus, the Court does not find that a sole custody worksheet is appropriate. 6 Accordingly, the Court GRANTS the Motion to Modify Child Support, ORDERS the 7

8 parties submit proposed joint custody worksheets to the Court, and refers the determination of

9 child support to the child support Referee for further hearings and findings based upon the 10 worksheets. II b. Child Support Arrears 12

13 Regarding arrears, Plaintiff argues in her opposition that Defendant was delinquent in

14 meeting his obligation under the Divorce Judgment to pay $250.00 per month in child support, 15 and to maintain the minor child's medical and dental insurance. Plaintiff asserts that Defendant 16 never made any payments, and that the accrued amount due for child support from February 17 2019 to May 2024 is $15,750.00. 18

19 Defendant argues that Plaintiff is judicially estopped from arguing for child support

20 arrears because she and her counsel both signed the stipulation, which states that no child 21 support arrears exist. Plaintiff argues that it would not be fair, equitable, or in the minor child's 22 best interests to find a waiver of arrears, and that any agreements waiving child support arrears 23 are void as against public policy. 24

25 The U.S. Supreme Court has found that the circumstances under which judicial estoppel

26 may be appropriately invoked are not necessarily reducible to any general formulation of 27 principle, but that several factors typically inform the decision of whether to apply the judicial 28

Page 7 of 12 Decision and Order Domestic Case No. DMOOI 7-19, Cruz v. Cruz

estoppel doctrine. New Hampshire v. Maine, 532 U.S. 742, 750 (2001). First, a party's later

2 position must be clearly inconsistent with its earlier position. Id. Second, courts "regularly

3 inquire whether the party has succeeded in persuading a court to accept that party's earlier 4 position, so that judicial acceptance of an inconsistent position in a later proceeding would 5 create the perception that either the first or the second court was misled." Id. "A third 6 consideration is whether the party seeking to assert an inconsistent position would derive an 7

8 unfair advantage or impose an unfair detriment on the opposing party if not es topped." Id.

9 However, these factors are not "inflexible prerequisites or an exhaustive formula for 10 detennining the applicability of judicial estoppel," but "tip the balance of equities in favor" of II doing so. Id. 12

13 The Court finds that Plaintiff has, by signature of herself and her counsel, stipulated to

14 Defendant's position that there are no longer any arrears. The Court further finds the stipulated 15 order, and Plaintiffs signature thereof, to be clear and compelling evidence that Plaintiff 16 voluntarily and intentionally abandoned said right, if any, to any child support arrears that may 17 have existed prior to the signing of the stipulation by the Court. Plaintiff is now claiming, 18

19 contrary to her previous position, that she is entitled to said arrearages. Because the position was

20 part of a stipulated order, which the Court accepted and subsequently executed, the Court finds 21 that Plaintiff succeeded in persuading the court to accept Plaintiffs original position. The Court 22 does not find that Plaintiff gained any unfair advantage from her change in position, or that the 23 detriment imposed on Defendant would necessarily be unfair, as the arrearages that Plaintiff 24

25 now seeks were already owed to her pursuant to the Divorce Judgment. However, the Court

26 does not find the lack of an advantage or detriment crucial to the judicial estoppel analysis, as 27 the Supreme Court has found that the ultimate purpose of the doctrine is "to protect the integrity 28

Page 8 of 12 Decision and Order Domestic Case No. DM00I7-19, Cruz v. Cruz

of the judicial process by prohibiting parties from deliberately changing positions according to

2 the exigencies of the moment." New Hampshire, 532 U.S. at 749-750. Thus, the Court's

3 primary concern is that Plaintiff, in stipulating to the waiver, persuaded the Court to accept that 4 position; in now asking the Court to disregard that waiver, Plaintiff is essentially stating that it 5 either misled the Court in the stipulation, or is misleading the Court now. Having already 6

executed the stipulated order based on the parties' stated positions, the Court will not now 7

8 reverse that order based on Plaintiffs new position.

9 The Court fu11her finds that the stipulation is not void as against public policy because 10 the waiver has been stipulated to by both parties and their counsels, and subsequently executed 11 by the Court. The Court finds that, even if judicial estoppel is not applicable in this instance, 12

13 waiver by the parties remains a valid defense to an action for child support arrearages for the

14 following reasons. In Wilson v. Wilson, the Guam Supreme Court held that it finds the reasoning 15 in California cases to be persuasive regarding Guam's child support statutes, "including those 16 on retroactive modification of a support order." Wilson, 2023 Guam 17 ~ 14. The California 17 Supreme Court, en bane, has held that "both waiver and estoppel were valid defenses" to an 18

19 action for child support arrearages. In re Marriage of Damico, 872 P.2d 126, 130 (Cal. 1994).

20 ~'[T]he principal concern in litigating the right to current and future child support is the welfare 21 of the child. However, when past unpaid support is the issue, the welfare of the child may not be 22 involved. For example, in this case reimbursement to the mother will have no tangible effect on 23 [the older child]." Id. (brackets original). 24

25 Other courts have similarly found that "a party may waive his or her current right to

26 child support through the 'intentional relinquishment of a known right"' and that, upon the 27 issuance of a stipulated order to waive arrearages, even a later "award of child support does not 28

Page 9 of 12 Decision and Order Domestic Case No. DM0017-19, Cruz v. Cruz

negate the parties' agreement to waive arrearages." Lublin v. Lawson, 129 Nev. 1134 (March

2 18, 2013 ). "In certain fact situations ... a custodial parent can waive the collection of child

3 support arrearages" if the facts "demonstrate by clear and compelling evidence the voluntary 4 and intentional abandonment of a known right." Ray v. Mangum, 788 P .2d 62, 65 (Ariz. 1989). 5 "As a general rule, as long as public assistance is not involved, the parties to a child support 6

7 order may agree to compromise child support arrearages ... However, such agreements are

8 enforceable only to the extent the proper party agrees to waive the arrearages." Sweeney v.

9 Sweeney, 63 N.E.3d 542, 552 (Ohio Ct. App. 2016). "[A]ny agreement that purports to waive 10 unpaid child support or the custodial parent's right to enforce the support order without proper 11 approval from a court of competent jurisdiction is void ab initio." Kimble v. Ellis, 101 P.3d 950, 12

13 954 (Wyo. 2004) (emphasis added). "The family court cannot after the fact do anything about

14 the child's past welfare," and "the designated payee of past-due court-ordered child support is a 15 decree creditor and, like a judgment creditor, can do whatever he or she wants with the decree 16 receivable subject, however, to the family court's superior interest in the child's present and 17 future welfare." Lindsey v. Lindsey, 716 P.2d 496, 500 (Haw. App. 1986). "The decree creditor 18

19 may waive, give, release, compromise, sell, enforce, or do nothing with his or her decree

20 receivable." Id. 21 Plaintiff argues that Defendant cannot claim that the stipulation constituted a waiver of 22 child support because, under Guerrero v. Moylan, parents "generally cannot waive child support 23 arrears by agreement, as child support is considered a right of the child, not the parents." Opp., 24

25 at 3 (citing Moylan, 2002 Guam 18 ,i 24). However, the Moylan decision does not refer to

26 arrears at all, but the overall right of a child to support. "[P]arents cannot by agreement limit or 27 divest a court of its discretion in setting child support." Moylan, 2002 Guam 18 ,r 24. "A child's 28

Page 10 of12 Decision and Order Domestic Case No. DM00I 7-19, Cruz v. Cruz

right to support from his or her parents is a right belonging to the child, and cannot be

2 contracted away by his or her parents." Id. "An agreement purporting to limit the court's ability

3 to achieve that goal [of protecting the welfare of children] is void as against public policy." Id. 4 The stipulation in this case does not divest or limit the Court's ability to set child support in any 5 way, nor does it deprive the minor child of their right to child support. The stipulation merely 6 waives a debt owed from Defendant to Plaintiff, and does not detrimentally affect the minor 7

8 child's support prospectively. Thus, the Court does not find that Plaintiffs argument predicated

9 on Moylan supports a finding against waiver of arrearages. 10 The Court is also aware of the Supreme Court's holding in Wilson, 2023 Guam 17, II affirming the Office of the Attorney General's ("OAG") ability to bring an action to enforce 12

13 payment of back support pursuant to 5 GCA § 34105(a)(l) and (8). However, the Attorney

14 General has not entered an appearance to recover back support in this case, nor has Plaintiff 15 sought the aid of the Attorney General or filed a motion seeking arrears pursuant to 5 GCA § 16 34150. Instead, Plaintiff stipulated to waive said arrears, and only argues the issue for the first 17 time in opposition to the instant motion. Further, the Court does not find that Defendant's 18

19 failure to pay arrears was detrimental to the best interests of the child, as Plaintiff does not

20 establish that the minor child's welfare was negatively affected by Defendant's failure to pay 21 back support. Rather, because Plaintiff paid for the minor child's needs, the Court finds that any 22 back support due would accrue to Plaintiff, not to the minor child. Because both Plaintiff and 23 her counsel have stipulated to the waiver of that right, the Court does not find it appropriate to 24

25 order Defendant to pay arrears under the circumstances.

Page 11 of12 Decision and Order Domestic Case No. DM00I 7-19, Cruz v. Cruz

CONCLUSION

2 Based on the foregoing, the Court hereby GRANTS Defendant's Motion fo

3 Modification of Child Support, and ORDERS that the parties to prepare and submit propose 4 joint custody worksheets. The Court further DENIES any request for arrears, and ORDERS tha 5 this matter is referred to the Child Support Referee for a determination of current child suppo 6

obligation of the parties. 7

8 IT IS so ORDERED _ _ _ 1_1_ _ _u_ - - - oc_ 6 2 211

9 .J'

II HONORAill'.lE ARTHUR ll: BARCINAS Judge, Su1i~~_ior Court 9(Guam 12 /,I/,,(• / : •( •i; :~ •.· : 1:) 0

, , '. 13

Page 12 ofl2