Isaac v. Isaac

Opinion

IN THE SUPERIOR COURT

OF GUAM

2

3 LIW A YW A Y C. ISAAC, ) Domestic Case no. DM 0050:-09 4 )

Plaintiff, )

5 )

v.

)

6 FINDINGS OF FACT and ) CONCLUSIONS OF LAW 7 BRIAN EDWARD ISAAC, )

)

8 )

Defendant.

9

10 INTRODUCTION

II This matter came before the Honorable Judge Michael J. Bordallo for a bench trial on 12

13 August 28, 2012. The Plaintiff was represented by Attorney Brook E. Wright. The Defendant

14 was represented by Daniel Somerfleck . Findings of Facts were due on September 28, 2012. 15 Thereafter, the Court took the matter under advisement. Having considered the witnesses' 16 testimony and the evidence presented, the Court hereby makes the following findings of fact 17 and conclusions of law: 1 18

19 FINDINGS OF FACT

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21

22 1. The parties were married on July 25, 1998; 23 2. Plaintiff and Defendant are the legal parents of three minor children: Emberlane Maria 24 Isaac (DOB:ll/15/96), who was adopted by the Defendant on December 19, 2008; Cynthia 25 Lorraine Isaac (DOB:08/18/98); Katherine Elizabeth Isaac (DOB: 1103/05).

26 3. The parties separated on or about October 1, 2008;

4. The Complaint filed on January 23, 2009 sought for divorce based on irreconcilable 2 difference;

3 5. The community property of the parties is comprised of:

4 a. 2002 Honda Civic;

5 b. Household furnishings, appliances, personal effects and jewelry of the 6

7 parties;

8 c. Defendant's retirement benefits from July 1998 through October 2008.

9 6. The community debts of the Plaintiff and Defendant consisting of the following: 10 a. Personal loan with Navy Federal Credit Union in excess of Eighteen II Thousand Dollars ($18,000.00) in 2008;

12 b. USAA Visa with a balance of Eight Thousand Dollars ($8,000.00) in 2008 13 c. Chase Visa with a current balance of Five Thousand Eight Hundred Seventy 14

15 Dollars ($5,870.00)

16 d. Star Card with a balance of Seven Thousand Eight Hundred Dollars

17 ($7,800.00) in 2008 18 7. No reconciliation is possible between the parties.

19

20 CONCLUSIONS OF LAW

21 This Court has jurisdiction over this matter pursuant to 7 G.C.A. §31 05 and 19 G.C.A.

22

23 §§ 8201,8318-19.

24 Grounds for Divorce

25 Under Guam law, if the divorce is rendered on the ground of adultery or extreme 26 cruelty, the community property shall be assigned to respective parties in such proportions at 27

28 1 To the extent that a finding of fact should be deemed a conclusion of law, or a conclusion of law deemed a finding of fact, it shall so be considered.

the court, from all the facts in the case, and the condition of the parties, may deem just. 19 2 G.C.A. § 8411(a). Extreme cruelty is defined as "the wTongful infliction of grievous bodily 3 injury, or grievous mental suffering upon the other by one party to the marriage." 19 G.C.A. § 4 8205. The "grievous mental suffering" could be humiliation or embarrassment, determined in 5 light of the intelligence, refinement, and delicacy of sentiment of the Plaintiff. See Kenner v.

6

7 Kenner, 18 Cal.App.2d 487,492 (1946) (wife associated with other men). Adultery is defined

8 as the "voluntary sexual intercourse of married person with a person other than the offender's

9 husband or wife" 19 G.C.A. § 8204. 10 On January 23, 2009, Plaintiff filed her Complaint alleging three (3) children of the 11 marriage and sought a divorce based upon irreconcilable differences. Defendant alleged 12 extreme cruelty as grounds for divorce in his Answer and Counterclaim for Divorce. (Answer 13 at 2). Based on the evidence and testimonies from both parties, the Court hereby renders the 14

15 divorce on the grounds of adultery based on the following analysis.

16 Upon receiving Plaintiffs own admission and Defendant's testimony, the Court finds

17 sufficient evidence to render the divorce on the grounds of adultery. As stated at the bench trial 18 and on Plaintiffs Second Amended Complaint, Plaintiff disputes the paternity of the two minor 19 children born during the marriage. As such, she admits adultery because she contends 20 Defendant may not be the biological father of the children. In addition, Defendant testified 21 when he was deployed in Italy, Plaintiff was living with another man in their home in Virginia.

22

23 Such evidence of specific conduct further establishes Plaintiffs adultery.

24 Defendant also seeks for the divorce to be rendered on the grounds of extreme cruelty,

25 alleging the "wrongful infliction of grievous mental suffering"." Although the Court can 26 reasonably infer humiliation and embarrassment on the part of the Defendant, the Court was 27 not presented with sufficient evidence which would conclusively support such a finding.

28 Accordingly, the Court grants Defendant's counterclaim for divorce on the grounds of adultery, but not for extreme cruelty.

2 Community Property & Debt 3 Under Guam law, "the community property ... shall be assigned as follows ... [i]f the 4 decree is rendered on the ground of adultery or extreme cruelty, the community property shall 5 be assigned to respective parties in such proportions as the court, from all the facts in the case, 6

7 and the condition ofthe parties, may seemjust." 19 G.C.A. § 8411(a). Community property is

8 defined as "property acquired by either spouse during marriage which is not separate property."

9 19 G.C.A. § 6101(b). Community debt is defined as "debt contracted or incurred by either or 10 both spouses during marriage which is not separate debt." 19 G.C.A. § 61 02(b ). This Court, in 11 the award of community property may consider the needs of the minor children. See In re 12 Marriage of Hermann, 148 Cal.Rptr. 550, 552 (1978) referring to In reMarriage of Boseman, 13 107 Cal.Rptr. 232 (1973). Additionally, where a party to a marriage successfully secures a 14

15 divorce based on the grounds of extreme cruelty, he or she is properly awarded more than half

16 ofthe community property. See Quafelli v. Quafelli, 277 P. 1089, 1090 (1929).

17 The Supreme Court of Guam has held that "the community property to be divided upon 18 dissolution of marriage is the residue which remains after the discharge of the community 19 obligations. Title 19 G.C.A. § 6104(a) provides the priorities for satisfaction of community 20 debt and states:

21 "Community debts shall be satisfied first from all community property and all 22 property in which the spouses own an undivided equal interest as joint tenants or 23 tenants in common, excluding the residence of the spouses. Should such property be insufficient, community debts shall then be satisfied from the residence of the 24 spouses, [then from the] separate property of the spouse who contracted or incurred the debt shall be liable for its satisfaction. If both spouses contracted or 25 incurred the debt, the separate property of both spouses is jointly and severally 26 liable for its satisfaction."

27 Plaintiff seeks an equitable distribution of the other community property and debt. 28 However, based on the facts and the circumstances present in this case, the Court, in its discretion, finds that an unequal award of community property to the Defendant is appropriate 2 based on the grounds of adultery.

3 The community property of the parties at the time of the divorce consisted of a 2002 4

Honda Civic, household goods, furnishings, and Defendant's military retirement benefits.

5

6 Although the parties were married for over ten years, there were many instances of separation

7 and reconciliation. The following factors were taken into consideration in order to make the 8 distribution of property and order the assumption of the debts of the parties. First, substantial 9 debts have been incurred by the parties, however, most of which have been assumed by the 10

II Defendant since the date of separation in 2008. Secondly, Defendant has agreed for Plaintiff to

12 be awarded the 2002 Honda Civic. Accordingly, the Court awards Defendant all of the 13 household goods and furnishing and Plaintiff the 2002 Honda Civic.

14 The community debt are as follows a) USAA Visa with a balance of Eight Thousand 15 Dollars ($8,000.00) in 2008, with a current balance of Five Thousand Eight Hundred Seventy 16

17 Dollars ($5,870.00); b) Chase Visa with a balance of Five Thousand Two Hundred Dollars and

18 Fifteen Dollars ($5,215.00); c) Star Card with a balance of Seven Thousand Eight Hundred 19 Dollars ($7,800.00) in 2008, and with current balance of Four Thousand One Hundred Thirty 20 Seven Dollars ($4,137.00); and d) NFCU Visa which was in excess of Eighteen Thousand 21 Dollars ($18,000.00) in 2008, with a current balance of Fifteen Thousand Three Hundred and 22

23 Fifty Eight Dollars ($15,358.00).

24 In addition, Plaintiff submits an mvo1ce for One Thousand Three Hundred Dollar 25 ($1,300.00) for services rendered by the Seattle law firm of Cogdill, Nicholas, Rein, Warselle 26 and Andrews to be community debt. However, because the invoice was made after the parties'

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28 separation, the debt is Plaintiffs separate debt.

Retirement Benefits 3 Accordingly to the Uniform Services Former Spouses's Protection Act ("USFSPA") 10 4 USC § 1408, a former spouse is awarded as community property a percentage of the member's 5 disposable military pay. Plaintiff asserts that she is entitled to a percentage of Defendant's 6

7 retirement benefits based on their ten years of marriage. The Guam Supreme Court has granted

8 the Superior Courts of Guam jurisdiction to treat military retirement pay in accordance with 9 Guam's community property laws under §1408(c) of the USFSPA. Hart v. Hart 2008 Guam 10 11.

II As held in the Hart opinion, Plaintiff submits using the "time rule" for determining the 12 amount of retirement benefits Plaintiff is entitled to. Under the time rule of apportionment, "the 13 community property interest in retirement benefits is the percentage representing the fraction 14

15 whose numerator is the employee spouse's length of services during marriage before

16 separation ... and whose denominator is the employee spouse's length of service in total." In re 17 Marriage of Poppe, Plaintiff seeks the Defendant's military retirement benefits accrued from 18 July 25, 1998 until October 1, 2008. The parties were married in 1998 and final separation was 19 in 2008. Although the parties were legally married for over ten years, the Court finds the parties 20 voluntarily spent a considerable amount of time apart, not due to military service.

21 Based on the testimony of both parties, the Court finds Plaintiff did not have a stable 22

23 income during the course of the marriage. The community debt consists of primarily household

24 expenses which were paid from Defendant's yearly income of Forty Four Thousand Dollars 25 ($44,000.00). The Court finds Defendant as the only party with income and paying off the 26 community debt. Lastly, as stated above, the Plaintiff admitted to committing adultery.

27 Therefore, the Court holds that an unequal distribution of the community assets and debts is 28 warranted. The Court hereby awards the Defendant all the interest in his retirement benefits.

The Court also apportions the responsibility of Community debts in the amount of one-third to 2 the Plaintiff and two-thirds to the Defendant. The uneven apportionment will make up a 3 portion of the value of the distribution of the assets as well as reflect the fact that the Defendant 4 will most likely end up paying for the debt. The Defendant is awarded a credit for one-third of 5 all payments made after separation on behalf of the parties.

6

7 Paternity Test

8 Under Guam law, a child born in wedlock is presumed to be the child of the husband

9 and wife. The presumption of legitimacy can only be disputed by the husband or wife and 10 illegitimacy may be proven like any other fact. 19 G.C.A. § 4101, 4102. In the instant case, 11 Defendant is the adoptive father of Emberlane Maria Isaac. Since Cynthia Lorraine Isaac and 12 Katherine Elizabeth Isaac were born during the marriage, it is presumed that Defendant is the 13 biological father.

14

15 Generally, the best interests of the children are served by joint and legal physical

16 custody between the parties. The Court has not been presented with any evidence to suggest

17 otherwise. Based on Defendant's testimony, he continues to assert he is the biological father 18 and the children recognize him as such. Thus, the Court finds the current arrangement two 19 weeks with the Plaintiff and two weeks with the Defendant to be in the best interests of the 20 children.

21 Spousal & Child Support 22

23 In Plaintiffs First Amended Complaint filed on April 30, 2009, Plaintiff alleged there

24 are three children of the marriage and the parties should have joint physical custody of the

25 minor children. Subsequently, in Plaintiffs Second Amended Complaint filed on September 8, 26 2011, Plaintiff asserts there are no minor children of the marriage and disputes Defendant as the 27 biological father of any of the three (3) minor children. Plaintiff now seeks sole custody of the 28 children with no visitations with the Defendant and spousal support of One Thousand Dollars

($1 ,000.00) per month for a period of 3 years.

2 Defendant contends Plaintiff does not need spousal support because she has been able 3 to financially support herself since the separation. Plaintiff argues she is entitled to child 4 support of Seven Hundred Sixty Dollars ($760) per month for the support, care, maintenance, 5 and education of the three minor children. The Court finds in favor of the Defendant and 6

7 awards Plaintiff no amount in spousal support. Child Support is awarded in the amount as

8 determined by the Child Support Referee.

9 Survivor Benefit Plan 10 Under 10 U.S.C. § 1447-55, the Survivor Benefit Plan ("SBP"), Defendant is eligible to 11 participate as an active duty member. The DBP is designed to provide financial security 12 through an inflation adjusted monthly income to a designated beneficiary of an active retired 13 military member. It is at the Court's discretion whether or not to require the service member to 14

15 participate in the SBP, and to name their former spouse as a beneficiary.

16 Plaintiff argues Defendant is still in active duty and may opt to participate in the SBP.

17 Plaintiff further contends due to the ten years of marriage and the three minor children, 18 Defendant should be ordered into the SBP and name the Plaintiff and children as beneficiaries.

19 The Court disagrees and finds Plaintiff uses the facts of the instant case to her convenience and 20 to obtain personal benefits. Plaintiff asserts the marriage lasted for over ten years, yet admits to 21 extended periods of time where the parties were apart due to their own free will. Moreover, 22

23 Plaintiff disputes the fact Defendant is the biological father of the children, yet continues to

24 maintain she deserves all the benefits of having legitimate children with the Defendant. In

25 addition, Plaintiff admits to having extra marital relations outside the marriage. Due to the 26 unstable nature of their marriage, the Court finds Plaintiffs requests to be self-serving and 27 lacking in merit, therefore denies Plaintiff's request to order Defendant to opt into the SBP

CONCLUSION

3 As stated above, the Court awards Defendant all of the household goods and furnishings 4 and Plaintiff the 2002 Honda Civic. As for the community debt, Defendant is ordered to be 5 responsible for two-thirds of the debt and Plaintiff is responsible for one-third of the debt.

6

7 Defendant will receive credit for one third of the payments made after separation on the debt.

8 Because the grounds for Divorce are adultery and in part, on the basis that the parties lived

9 apart for substantial portions of the marriage, the Court awards Defendant all of the interest in 10 his retirement benefits. The Court finds Plaintiff is entitled to no spousal support. Child II support is awarded in the amount as ordered by the Child Support Referee. Lastly, the Court 12 denies Plaintiffs request to order Defendant to opt into the Survivor Benefit Program.

13 Counsel for the Defendant shall prepare the Interlocutory and Final Decree of Divorce 14

15 consistent with the Court's Findings and get approval as to form.

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17 SO ORDERED, this 7th day of May 2013. 18

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