Dowdell, Jr. v. Scott-Dowdell

Opinion

FfLED

SUPEROy DOUR

1 70A JUL 10 PH } ' 9

2 IN THE SUPERIOR COURT OF GUAM CLERK GJr (JOUR7 W.

4 DOMESTIC CASE NO. DM836-1 JACOB DOWDELL, JR.,

5 Plaintiff, DECISION AND ORDER 6 vs. Order to Show Cause Re: Attorney's Fees 7

a RICHELLE ANNETTE SCOTT- DOWDELL,

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Defendant.

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11 INTRODUCTION

12 This matter came before the Honorable Anita A. Sukola on April 8, 2014 upon Jacob 13 Dowdell, Jr.'s ("Plaintiff") Order to Show Cause Re: Attorney's Fees. Plaintiff was represented 14

15 by Daniel S. Somerfleck, Esq. Richelle Annette Scott-Dowdell ("Defendant") was represented

16 by Ronald P, Moroni, Esq. The Court took the matter under advisement on the submission of 17 briefs. Upon review of the written arguments and legal authorities presented by both parties, the 18 Court issues its Decision and Order DENYING Plaintiff's request for attorney's fees.

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20 BACKGROUND

21 A divor c e wa s grant ed t o Pla intiff from De fe nda nt on the gro u nds o f i r reco nci l abl e

22 differences on March 2, 2012. An Interlocutory Judgment of Divorce incorporated terms of a 23 Marital Settlement Agreement entered into by the parties on January 16, 2012. See Interlocutory 24

Judgment of Divorce (Mar. 2, 2012). A Final Decree of Divorce was also executed on March 2, 25 2012.

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27 On Oct o ber 1 , 2 0 1 3 , P l ai nt i ff fi l ed a n E x P a rt e Motion for Order to Show Cause Re:

28 Contempt and Memorandum of Points and Authorities. An Order t o Sho w C au se Re: Co nt empt

Dowdell v, Dowdell (DM836-11) Page 1 of3 Decision and Order - OSC: Attorney's Fees ORIGINAL

was executed on October 10, 2013, setting a hearing on said motion for October 29, 2013. A

Second Re-Issuance Order to Show Cause Re: Contempt was executed on November 14, 2013,

setting the matter for November 19, 2013. On November 19, 2013, Ronald P. Moroni, Esq.

entered an appearance on behalf of the Defendant. As a result, additional time was requested by

Defendant.

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On April 8, 2014, the Court took the matter under advisement on the submission of 7

a briefs relative to attorney' s fees.

9 DISCUSSION 10 Plaintiff is seeking attorney's fees for enforcing provisions of a previous Interlocutory 11 Ju dgment o f Di vo rce. Plaintiff bases his right to such fees on allegations that Defendant was in 12

13 contempt for not making a mortgage payment as agreed to and incorporated in the Interlocutory

14 Judgment of Divorce. It has since been represented to the Court that the mortgage issue was

15 resolved.

16 "The elements of contempt are generally: 'I) a valid order, 2) knowledge of the order, 3)

17 ability to comply with the order, and 4) willful failure to comply with the order."' Rodriguez v.

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19 Rodriguez, 2003 Guam 8 ¶ 15 (citing In re Ivey, 102 Cal.Rptr.2d 447, 451 (Cal.Ct.App.2000)).

20 "However, where the order is a family law order for payment of support or attorney fees, and 21 the family law court has already determined the alleged contemner's [sic] ability to pay the 22 underlying order, ability to comply with the order is not an element of the contempt" Id .

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"Instead, the inability to pay is an affirmative defense." Id .

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25 In review of this matter, the Court recognizes that certain elements of contempt may be

26 met . Ho wever, no Order t o Sho w Cau se heari ng t o o k pl ace. Li kewi se, no fi ndi ng o f co nt empt 27

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Dowdell v. Dowdell (DM836-11) Page 2 of 3 Decision and Order - OSC: Attorney's Fees against the Defendant was ever made . Accordingly, the Court DENIES Plaintiff s request for 1

2 at t o rney' s fees.

CONCLUSION

4 B y preponderance o f th e evidence and based on the foregoing reasons, the Court 5 DENIES Plaintiffs Request for Attorney' s F ees.

6 SO ORDERED this to m day of JULY, 2014.

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to

I I HONORABLE ANITA A. SUKOLA 12 Judge, Superior Court of Guam 13

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?ioI µ Dowdell v, Dowdell (DM836-11) Page 3 of 3 Decision and Order - OSC: Attorney's Pees