Kang v. Kang

Opinion

OF GUAM

3 JUNG KANG, ) DOMESTIC CASE 4 Plaintiff, ) v. ) 5 ) DECISION AND ORDER ) 6 BYONG HI KANG. ) Defendant.

8 This matter is before the Honorable Judge Michael J. Bordallo. Pursuant to Rule 7.1 of 9 the Local Rules of the Superior Court of Guam, Defendant's Motion to Amend was taken under 10

II advisement on October 14, 2013. Defendant is represented by attorney Joaquin C. Arriolla.

12 Plaintiff is represented by attorney Leslie A. Travis. Having considered the arguments,

13 evidences and file herein, the Court hereby enters an order GRANTING Defendant's motion. 14 BACKGROUND 15 On August 22, 2013, Defendant filed a paper entitled, Motion to Amend and for Relief 16 from Decision and Order; Motion to Stay Enforcement; Memorandum in Support of Motion. 17

In it Defendant requests, that pursuant to Rules 52(b) and 60(b) of the Guam Rules of Civil 18

19 Procedure, that the Court amend its August 9, 2013 Decision and Order. The Comi's order

20 requires that Defendant pay Plaintiff an amount of $6,715.00 in spousal support pendente lite.

21 It also ordered that Defendant pay up to $25,000.00 in Plaintiffs legal fees which are 22 ultimately to be deducted from Plaintiffs share of the marriage assets. Defendant requests that

the amount be reduced by $4,715.00 and that Plaintiff only be allowed the $2,000.00 support 24 amount that the Court temporarily ordered prior to its August 9, 2013, decision. He also 25 requests that the Court reconsider and remove its potential $25,000.00 legal-fees order and that 26

27 it stay Defendant's obligation to comply with the entire support order pending its decision on

28 this motion to amend.

Pagclof4 In it to 2 and to 3 asserts of of the have 4

5 1. Guam Construction Co. is currently at a 6 Jetcendlant and were for conversion and other causes of action by Defendant's 8 3. Defendant is only working 3 hours each day; 4. Defendant contributes up to $800 each month to support the Parties' grandchildren; and 9 5. Plaintiff is now living in the former fan1ily residence, rent and expense free. 10 PlaintitT filed her opposition on September 26, 20 13. In it Plaintiff refutes Defendant's II assertions that: she is living in the family residence rent and expense free, Defendant's 12

13 available income is only $5,500; and that Defendant has given signiticant support to the

14 Parties' grandchildren. She further asserts that: she is paying rent through her daughter to live

15 in the family residence; her continued ability to reside in the family home is uncertain; 16 Defendant harasses their daughter for allowing PlaintifT to live in the home; and that Defendant 17 sets his own income and has the means to comply with the order. Plaintiff argues that 18 Defendant's requests under Rules 52(b) and 60(b) are not legally supportable under the facts 19 asserted and argues that the Court's August 9, 2013, pendente lite support order should remain 20

21 in place.

22 Defendant filed his Reply on October 4, 2013. In it he argues that Plaintiff has

23 conceded a change in circumstances and conceded that her monthly expenses do not exceed 24 more than $2,700.00 per month. In support of these arguments Defendant refers to Plaintiffs 25 opposition papers and a May 14, 2013, deposition where Plaintiff answered questions about 26 some of her expenses. He further that Plaintiff has failed to justify the reasonableness of 27 the legal ordered in the Court's August 9, 201 Decision and Order. In conclusion 28 Defendant again requests that Plaintiffbe allowed $2,000.00 month in support and 2 of4 that Plaintiff's attorney fees first be scrutinized. 2 DISCUSSION 3 Defendant makes his requests to reconsider through Rules 52(b) and 60(b) of the Guam 4 Rules of Civil Procedure. Mot. Rule 52(b) provides, 5 (b) Amendment. On a party's motion filed no later than 10 days after entry of 6 judgment, the court may amend its findings-or make additional findings~and 7 may amend the judgment accordingly. The motion may accompany a motion for a new trial under Rule 59. When findings of fact are made in actions tried 8 without a jury the sufficiency of the evidence supporting the findings may be later questioned whether or not in the district court the party raising the question 9 objected to the findings, moved to amend them, or moved for partial findings. 10 Guam R. Civ. P. 52(b). On its face and as it has been applied by the Guam Supreme Court, II requests under Rule 52(b) are only appropriate after entry of judgment and upon a showing of 12

13 manifest error or newly discovered evidence. !d.; Sananap v. C)fred, Ltd., 20 II Guam 2, ,l 2I. 14 In this case the Court has not entered a judgment. It has not held a trial or entered findings of

15 fact. The Court does not find that Rule 52(b) applies or that Defendant's arguments merit 16 amendment under this standard. 17 Defendant also requests that the Court's August 9, 2013 order be amended under Rule 18 60(b) Subparts (1), (2) and (6). Mot. at 6-7. Rule 60(b)(l), (2) and (6) provide, 19 On motion and upon such tenns as are just, the court may relieve a party or a 20 party's legal representative from a final judgment, order, or proceeding for the 21 following reasons: ( 1) mistake, inadvertence, surprise, or excusable neglect; 22 (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b );

24 (6) any other reason justifying relief from the operation of the judgment.

25 Guam R. Civ. P. 60(b)(l), (2) and (6). In this case, prior to the entry of its November 9, 2013, 26 Decision and Order, the Court carefully considered each of the Parties', arguments, evidences

and papers. However, after re-considering this matter and taking into consideration Defendant's 28 income as reported on his 20 I2, 2011 and 2010 tax returns, as \veil as the currently pending Page 3 of4 litigation over the martial estate· s primary asset, Guam Construction Company, the Court finds 2 that these facts merit a reduction in its previously ordered pendent lite spousal support. 3 Sana nap v. C);fred, Ltd., 201 1 Guam 2, ~l 18. 4 The Court re-emphasizes that in its November 9. 2013. decision. its order of attomey 5

6 fees is limited and subject to Plaintitrs provision of an itemized invoice describing the fees. It

7 is also limited to the fees' reasonableness. Jd. Any fees paid are also to be deducted from the 8 PlaintitT's share ofthe marriage assets at the disposition of this matter. 9 CONCLUSION 10

II Based upon the foregoing. the Court GRANTS Defendant's motion. Pending the

12 disposition of this case, Defendant is ordered to pay PlaintiiT a monthly amount of $5.000.00

13 each month. 14

18 HONOKAHLE MICHAEL J. BORDALLO 19 Judg~/SGperior Court of Guam 20

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