De Plata v. De Plata

Opinion

3 IN THE SUPERIOR COURT OF GUAM 4 RAMON A. DE PLATA, ) CIVIL CASE NO. DM0113-12 5 ) 6 Plaintiff, ) ) DECISION AND ORDER 7 vs. ) ON MOTION STRIKE ) 8 BERNITA R. DE PLATA, ) 9 ) Defendant. ) 10 ) 11

12 INTRODUCTION 13 This matter came before the Honorable Alberto C. Lamorena III on March 14 25, 2013 on Defendant's Motion to Strike. Plaintiff Ramon De Plata was

15 represented by Attorney William Gavras. Defendant was represented by Attorney

16 Seaton M. Woodley, III. After a hearing, the matter was taken under advisement.

17 The Court now issues its Decision and Order.

18 BACKGROUND 19 On February 21, 2012, Plaintiff Ramon De Plata filed his Verified Complaint

20 for Divorce; to which Defendant Bernita De Plata filed her Answer and

21 Counterclaim on Mach 1, 2012. Plaintiff filed his First Amended Complaint on

22 September 20, 2012 pursuant to stipulation by parties. In his First Amended Complaint, Plaintiff alleged: 23 At the time of the marriage and continuing thereafter, Defendant 24 committed adultery inflicted extreme mental cruelty on Plaintiff, and 25 there have been irreconcilable differences between Plaintiff and Defendant warranting the Court's granting a Decree of Divorce unto 26 the Plaintiff. 27 First Amended Complaint, Sep. 20, 2013 ,[ 6. On March 5, 2013, Defendant filed 28 her Motion to Strike Plaintiffs Grounds for Divorce. In the motion, Defendant cites Decision and Order Case No. DM0113-12

Plaintiffs response to interrogatories which lists the co-actors to Defendant's 2 alleged adultery. Each of the alleged co-actors to Defendant's adultery is female. It 3 is Defendant's argument that two persons of the same sex cannot commit adultery 4 as defined by 19 G.C.A. § 8204. 5 Plaintiff filed his Opposition to the Motion on March 21, 2013. He cites

6 numerous cases in which the Courts in the respective jurisdictions found

7 homosexual conduct as sufficient grounds for adultery. For the reasons set forth

8 below, this Court now denies the motion to strike. DISCUSSION 9 Motions to strike portions of pleadings are governed by Rule 12 of the Guam 10 Rules of Civil Procedure. The Rule provides: 11 Motion to Strike. Upon motion made by a party before responding to a 12 pleading or, if no responsive pleading is permitted by these rules, upon 13 motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court 14 may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. 15

16 Guam R. Civ. P. 12(£). Dissolution of marriage may be granted for adultery, which

17 is defined as "the voluntary sexual intercourse of a married person with a person

18 other than the offender's husband or wife." See 19 G.C.A. §§ 8203-8204. Defendant cites to New Hampshire precedent which decided the issue found 19 here. In Blanchflower v. Blanchflower, the New Hapshire Supreme Court wrote, 20 "[t]he plain and ordinary meaning of adultery is 'voluntary sexual intercourse 21 between a married man and someone other than his wife or between a married 22 woman and someone other than her husband."' 150 N.H. 226, 227 (2003) (citing 23 Webster's Third New International Dictionary 30 (unabridged ed.1961)). "Although 24 the definition does not specifically state that the 'someone' with whom one commits 25 adultery must be of the opposite gender, it does require sexual intercourse." Id. 26 The New Hampshire Court continued: 27 The plain and ordinary meaning of sexual intercourse is "sexual 28 connection esp. between humans: COITUS, COPULATION." Webster's Third New International Dictionary 2082. Coitus is defined to require

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"insertion of the pems in the vagina[ ]," Webster's Third New International Dictionary 441, which clearly can only take place 2 between persons of the opposite gender. 3 Defendant now asks this Court to adopt such a definition in granting the 4 motion to strike. This Court declines to do so for the following reasons: 1) the 5 definition Defendant asks this Court to adopt is outmoded and outdated; 2) the 6 cases cited by Plaintiff clearly indicate that numerous jurisdictions find adultery to 7 be a legal possibility as it pertains to homosexual extramarital activity; and 3) the 8 result Defendant seeks runs contrary to logic. 9 The definitions used by the New Hampshire Court in Blanchflower come from 10 a 1961 version of Webster's Dictionary. Today, Webster's defines intercourse as 11 follows: 12 1: connection or dealings between persons or groups; 2: exchange especially of thoughts or feelings; 13 3: physical sexual contact between individuals that involves the 14 genitalia of at least one person. 15 Merriam-Webster, www.merriam-webster.com/dictionary/intercourse (last visited 16 Jun. 21, 2013). Additionally, Webster's now defines sexual intercourse as follows: 17 1: heterosexual intercourse involving penetration of the vagina by the pems; 18 2: intercourse (as anal or oral intercourse) that does not involve 19 penetration of the vagina by the penis. 20 Merriam-Webster, www.merriam-webster.com/dictionary/sexual+intercourse (last 21 visited Jun. 21, 2013). Thus, the Blanchflower definitions are too narrow when 22 considering the modern prevailing view on the definitions of intercourse and sexual 23 intercourse. Under today's broader definitions, intercourse and adultery need not 24 be limited to heterosexual conduct. 25 Plaintiff cites to numerous cases in which the jurisdiction found homosexual

26 conduct was capable of supporting an adultery claim. See Owens v. Owens, 27 4

27 S.E.2d 484 (Ga. 1981); also Alphonso v. Alphonso, 422 So. 2d 210 (La.Ct. App. 4th Cir. 1982); S.B. v. S.J.B., 258 N.J. Super. 151 (Ch. Div. 1992); Rera v. Rera, 100 28 Misc. 2d 670 (Sup 1979). This Court acknowledges that none of these cases are

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controlling. However, they and the numerous others cited in Plaintiffs Opposition 2 are indicative of the prevailing view on whether homosexual conduct may constitute 3 adultery. 4 At oral arguments, Defendant summarized by saymg if the Legislature

5 wished for homosexual conduct to constitute adultery, then the statutes must be

6 changed and it is not for the Court to insert its own definitions. Plaintiff countered

7 that although it is dangerous to attempt to get in the minds of the Legislature, particularly one dating as far back as to the inception of our divorce statutes, it 8 makes no logical sense to think they would frown upon heterosexual extramarital 9 conduct and embrace homosexual extramarital conduct. This Court agrees with 10 Plaintiff. 11 CONCLUSION 12 For the reasons set forth above, Defendant's Motion to Strike Plaintiffs 13 Ground for Divorce is hereby DENIED. 14 The parties are ordered to submit a proposed Scheduling Order and 15 Discovery Plan by the next Scheduling Conference on August 5, 2013 at 2:00p.m. 16