5 IN THE SUPERIOR COURT OF GUAM 6
7 THOMAS KLOPPENBURG, ) DOMESTIC CASE NO. DM55-08 ) 8 Plaintiff, ) ) 9 ) FINDINGS OF FACT AND ) CONCLUSIONS OF LAW 10 vs. ) (Bench Trial) ) 11 ) ) ARLEAN P. KLOPPENBURG, ) 12 Defendant. ) 13 ) ) 14
15 INTRODUCTION 16 This matter came before the Honorable Anita A. Sukola on January 12,2011, March 7 17 2012, and April 4, 2012, for a bench trial. Attorney Ron Moroni appeared on behalf of Thorn 18 Kloppenburg ("Plaintiff'). Attorney Daniel S. Somerfleck appeared on behalf of Arlean Pere 19 Kloppenburg ("Defendant"). Upon review of the evidence, oral and written arguments, and lega 20
21 authorities presented by the parties, the Court hereby issues its Findings of Fact and Conclusion
22 of Law. 23 FINDINGS OF FACT By preponderance of the evidence, the Court makes the following findings of fact:
1. Plaintiff and Defendant were married on July 8, 1994, in Reno, Nevada.
27 2. The parties separated in June 17,2002.
~ 28
1 Kloppenburg v. Kloppenburg (DM55-08) Page I of7 Findings of Fact and Conclusions of Law-Bench Trial 3. Plaintiff filed a Complaint for Divorce on January 31, 2008. On March 3, 2008 1
2 Defendant filed her Answer and Counterclaim. The primary issues for trial centere
3 on the cause of the divorce and the nature of the property whether separate 4 community, or a mix of separate and community property owned by the parties. 5 4. At the time of trial, there were no minor children of the marriage. The parties' 6 daughter has reached the age of majority and the issues regarding her custody an 7
8 support were moot.
9 5. The residency requirements of 19 GCA §8318 (a) are met, in that both parties wer 10 residents of Guam for at least ninety (90) days immediately preceding the filing of th 11 Complaint. 12 6. Plaintiff seeks a dissolution of the marriage on the grounds of irreconcilabl 13
differences. 15 7. Defendant seeks a dissolution of the marriage on the following grounds: extrem 16 cruelty, willful desertion, willful neglect, habitual intemperance, and irreconcilabl 17 differences. 18
19 8. The Parties provided no Fair Market Value ("FMV") of the real property on date 0
20 separation, or filing of the Complaint. 21 CONCLUSIONS OF LAW 22 I. GROUNDS FOR DIVORCE 23 Plaintiff seeks a dissolution of marriage on the grounds of irreconcilable differences. 24
25 Defendant counter-claims for divorce based on extreme cruelty, willful desertion, willful
26 neglect, habitual intemperance, and irreconcilable differences. A dissolution of marriage may 27 be granted for irreconcilable differences pursuant to 19 GCA § 8203 (g). A dissolution of 28
Kloppenburg v. Kloppenburg (DM55-08) Page2of7 Findings of Fact and Conclusions of Law-Bench Trial marriage may also be granted for extreme cruelty pursuant to 19 GCA § 8203 (b); willful 1
2 desertion pursuant to 19 GCA § 8203 (c); willful neglect pursuant to 19 GCA § 8203 (d); and
3 habitual intemperance pursuant to 19 GCA § 8203 (e). 4 "Irreconcilable differences are those grounds which are determined by the Court to be 5 substantial reasons for not continuing the marriage and make it appear that the marriage should 6 be dissolved." 19 GCA § 8219. "Extreme cruelty is the wrongful infliction of grievous bodily 7
8 injury, or grievous mental suffering, upon the other by one party to the marriage." 19 GCA §
9 8205. "Willful desertion is the voluntary separation of one of the married parties from the other 10 with the intent to desert." 19 GCA § 8206. "Willful neglect is the neglect of the husband to 11 provide for his wife the common necessaries of life, he having the ability to do so; or it is the 12 failure to do so by reason of idleness, profligacy, or dissipation." 19 GCA. § 8216. "Habitual 13
14 intemperance is that degree of intemperance from the use of intoxicating drinks which
15 disqualifies the person a great portion for the time from properly attending to business, or which 16 reasonably inflict a course of great mental anguish upon the innocent party." 19 GCA § 8217. 17 Irreconcilable differences are a common justification for dissolution pursuant to 19 GCA 18
19 § 8203 (g). Because it appears to the Court that the marriage between Plaintiff and Defendant
20 cannot be continued, the Court grants the divorce on this ground, irreconcilable differences. 21 Notwithstanding the Court ruling on finding the dissolution of marriage based on irreconcilable 22 differences, the Court still addresses the counter claim grounds made by Defendant. 23 Defendant testified about alleged acts of cruel treatment, most of which took place in the 24
25 early 1990s. Plaintiff denied all allegations of cruel treatment. As a general rule, an applicant
26 for divorce on the ground of cruelty must establish a claim by a preponderance of the evidence. 27 Mitchell v. Mitchell, 823 So. 2d 568 (Miss. ct. App. 2002). Conduct which merely causes 28
Kloppenburg v. Kloppenburg (DM55-08) Page 3 of7 Findings of Fact and Conclusions of Law-Bench Trial embarrassment is insufficient to amount to mental cruelty. Matthews v. Matthews, 36 1
2 IlI.App.3d 508, 511, 344 N.E.2d 21 (1976). Cruelty is not established by mere conclusions of
3 the witness or general statements to the effect that the defendant has mistreated the plaintiff or 4 that they cannot live together. In re Marriage of Semmler, 90 Ill. App. 3d 649, 46 Ill. Dec. 62, 5 413 N .E.2d 502 (2d Dist. 1980). Something more than unkindness, rudeness, mere 6 incompatibility, or want of affection must be shown. Sproles v. Sproles, 782 So. 2d 742 (Miss. 7
8 2001).
9 The Court finds that the facts of the case do not rise to render Defendant's counter claim 10 of extreme cruelty. The additional grounds cited by Defendant were not compelling enough as 11 reasons to grant the divorce. 12
13 II. REAL PROPERTY
14 Plaintiff argues that the real property at 185 Findley Road is not community property
15 and may not be divided by the Court. Further, Plaintiff, asserted that Defendant has not proven 16 the existence of any other community property or the value of such property. Conversely, 17 Defendant alleges the following to be community property: 18
19 a. Plaintiff's Time Deposit Account with Bank of Hawaii;
20 b. Oregon Tax Lot 38-05-26-00-000107-00; 21 c. Tax Lot 507 aka 185 Finley Road, Williams, Oregon consisting of a twenty (20) acre 22 lot without mortgage together with the mobile home thereupon; 23 d. All that certain real property located at 145 Norton Road, Williams, Oregon 24
25 consisting of twelve (12) acres in total more particularly described as contiguous
26 Lots 1100 and 1902, Township 38, Range 5, Section 34 and mortgage thereupon; 27
Kloppenburg v. Kloppenburg (DM55-08) Page 4 of7 Findings of Fact and Conclusions of Law-Bench Trial e. All that certain real property located at 2069- Williams Highway, William, Oregon 1
2 consisting of .17 acres in total more particularly described as Lot 2101, Township,
3 38, Range 05, Section 34; 4 f. The refund/credit in the approximate amount of $6,300 due from the joint 2006 5 Guam Income Tax return; 6 g. All furniture and household effects located at Plaintiffs residence; 7
8 h. All furniture and household effects located at Defendant's residence;
9 1. Plaintiffs shares in Kloppenburg Enterprises, Inc.; 10 J.
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5 IN THE SUPERIOR COURT OF GUAM 6
7 THOMAS KLOPPENBURG, ) DOMESTIC CASE NO. DM55-08 ) 8 Plaintiff, ) ) 9 ) FINDINGS OF FACT AND ) CONCLUSIONS OF LAW 10 vs. ) (Bench Trial) ) 11 ) ) ARLEAN P. KLOPPENBURG, ) 12 Defendant. ) 13 ) ) 14
15 INTRODUCTION 16 This matter came before the Honorable Anita A. Sukola on January 12,2011, March 7 17 2012, and April 4, 2012, for a bench trial. Attorney Ron Moroni appeared on behalf of Thorn 18 Kloppenburg ("Plaintiff'). Attorney Daniel S. Somerfleck appeared on behalf of Arlean Pere 19 Kloppenburg ("Defendant"). Upon review of the evidence, oral and written arguments, and lega 20
21 authorities presented by the parties, the Court hereby issues its Findings of Fact and Conclusion
22 of Law. 23 FINDINGS OF FACT By preponderance of the evidence, the Court makes the following findings of fact:
1. Plaintiff and Defendant were married on July 8, 1994, in Reno, Nevada.
27 2. The parties separated in June 17,2002.
~ 28
1 Kloppenburg v. Kloppenburg (DM55-08) Page I of7 Findings of Fact and Conclusions of Law-Bench Trial 3. Plaintiff filed a Complaint for Divorce on January 31, 2008. On March 3, 2008 1
2 Defendant filed her Answer and Counterclaim. The primary issues for trial centere
3 on the cause of the divorce and the nature of the property whether separate 4 community, or a mix of separate and community property owned by the parties. 5 4. At the time of trial, there were no minor children of the marriage. The parties' 6 daughter has reached the age of majority and the issues regarding her custody an 7
8 support were moot.
9 5. The residency requirements of 19 GCA §8318 (a) are met, in that both parties wer 10 residents of Guam for at least ninety (90) days immediately preceding the filing of th 11 Complaint. 12 6. Plaintiff seeks a dissolution of the marriage on the grounds of irreconcilabl 13
differences. 15 7. Defendant seeks a dissolution of the marriage on the following grounds: extrem 16 cruelty, willful desertion, willful neglect, habitual intemperance, and irreconcilabl 17 differences. 18
19 8. The Parties provided no Fair Market Value ("FMV") of the real property on date 0
20 separation, or filing of the Complaint. 21 CONCLUSIONS OF LAW 22 I. GROUNDS FOR DIVORCE 23 Plaintiff seeks a dissolution of marriage on the grounds of irreconcilable differences. 24
25 Defendant counter-claims for divorce based on extreme cruelty, willful desertion, willful
26 neglect, habitual intemperance, and irreconcilable differences. A dissolution of marriage may 27 be granted for irreconcilable differences pursuant to 19 GCA § 8203 (g). A dissolution of 28
Kloppenburg v. Kloppenburg (DM55-08) Page2of7 Findings of Fact and Conclusions of Law-Bench Trial marriage may also be granted for extreme cruelty pursuant to 19 GCA § 8203 (b); willful 1
2 desertion pursuant to 19 GCA § 8203 (c); willful neglect pursuant to 19 GCA § 8203 (d); and
3 habitual intemperance pursuant to 19 GCA § 8203 (e). 4 "Irreconcilable differences are those grounds which are determined by the Court to be 5 substantial reasons for not continuing the marriage and make it appear that the marriage should 6 be dissolved." 19 GCA § 8219. "Extreme cruelty is the wrongful infliction of grievous bodily 7
8 injury, or grievous mental suffering, upon the other by one party to the marriage." 19 GCA §
9 8205. "Willful desertion is the voluntary separation of one of the married parties from the other 10 with the intent to desert." 19 GCA § 8206. "Willful neglect is the neglect of the husband to 11 provide for his wife the common necessaries of life, he having the ability to do so; or it is the 12 failure to do so by reason of idleness, profligacy, or dissipation." 19 GCA. § 8216. "Habitual 13
14 intemperance is that degree of intemperance from the use of intoxicating drinks which
15 disqualifies the person a great portion for the time from properly attending to business, or which 16 reasonably inflict a course of great mental anguish upon the innocent party." 19 GCA § 8217. 17 Irreconcilable differences are a common justification for dissolution pursuant to 19 GCA 18
19 § 8203 (g). Because it appears to the Court that the marriage between Plaintiff and Defendant
20 cannot be continued, the Court grants the divorce on this ground, irreconcilable differences. 21 Notwithstanding the Court ruling on finding the dissolution of marriage based on irreconcilable 22 differences, the Court still addresses the counter claim grounds made by Defendant. 23 Defendant testified about alleged acts of cruel treatment, most of which took place in the 24
25 early 1990s. Plaintiff denied all allegations of cruel treatment. As a general rule, an applicant
26 for divorce on the ground of cruelty must establish a claim by a preponderance of the evidence. 27 Mitchell v. Mitchell, 823 So. 2d 568 (Miss. ct. App. 2002). Conduct which merely causes 28
Kloppenburg v. Kloppenburg (DM55-08) Page 3 of7 Findings of Fact and Conclusions of Law-Bench Trial embarrassment is insufficient to amount to mental cruelty. Matthews v. Matthews, 36 1
2 IlI.App.3d 508, 511, 344 N.E.2d 21 (1976). Cruelty is not established by mere conclusions of
3 the witness or general statements to the effect that the defendant has mistreated the plaintiff or 4 that they cannot live together. In re Marriage of Semmler, 90 Ill. App. 3d 649, 46 Ill. Dec. 62, 5 413 N .E.2d 502 (2d Dist. 1980). Something more than unkindness, rudeness, mere 6 incompatibility, or want of affection must be shown. Sproles v. Sproles, 782 So. 2d 742 (Miss. 7
8 2001).
9 The Court finds that the facts of the case do not rise to render Defendant's counter claim 10 of extreme cruelty. The additional grounds cited by Defendant were not compelling enough as 11 reasons to grant the divorce. 12
13 II. REAL PROPERTY
14 Plaintiff argues that the real property at 185 Findley Road is not community property
15 and may not be divided by the Court. Further, Plaintiff, asserted that Defendant has not proven 16 the existence of any other community property or the value of such property. Conversely, 17 Defendant alleges the following to be community property: 18
19 a. Plaintiff's Time Deposit Account with Bank of Hawaii;
20 b. Oregon Tax Lot 38-05-26-00-000107-00; 21 c. Tax Lot 507 aka 185 Finley Road, Williams, Oregon consisting of a twenty (20) acre 22 lot without mortgage together with the mobile home thereupon; 23 d. All that certain real property located at 145 Norton Road, Williams, Oregon 24
25 consisting of twelve (12) acres in total more particularly described as contiguous
26 Lots 1100 and 1902, Township 38, Range 5, Section 34 and mortgage thereupon; 27
Kloppenburg v. Kloppenburg (DM55-08) Page 4 of7 Findings of Fact and Conclusions of Law-Bench Trial e. All that certain real property located at 2069- Williams Highway, William, Oregon 1
2 consisting of .17 acres in total more particularly described as Lot 2101, Township,
3 38, Range 05, Section 34; 4 f. The refund/credit in the approximate amount of $6,300 due from the joint 2006 5 Guam Income Tax return; 6 g. All furniture and household effects located at Plaintiffs residence; 7
8 h. All furniture and household effects located at Defendant's residence;
9 1. Plaintiffs shares in Kloppenburg Enterprises, Inc.; 10 J. Plaintiffs interest in the five acre real property located at Pago Bay, Guam 11 Characterization of property in a marital dissolution action is the determination by the 12 trial court of what property owned by the parties is separate or community property. Hart v. 13
14 Hart, 2008 Guam 11 ~24. Apportionment is used "[w]hen a trial court concludes that property
15 contains both separate and community interests." Hart, 2008 Guam 11 ~ 38. Separate property is 16 property acquired by either spouse before the marriage or after entry of a decree of dissolution 17 of marriage. 19 G.C.A. § 6101 (a)(1). Community property is property acquired by either 18
19 spouse during the marriage which is not separate property. 19 G.C.A. § 6101 (b). Moreover,
20 "property acquired during marriage by either husband or wife .. .is presumed to be community 21 property." BIas v. Cruz, 2009 Guam 12 ~ 23. 22 The Court granting the dissolution of marriage on the ground of irreconcilable 23 differences is to distribute community property, equally, divided between the parties. 19 GCA. 24
25 § 8411 (b).
26 IT IS THEREFORE ORDERED that: 27 1. Upon Plaintiffs request, a divorce is granted in favor of Plaintiff based upon 28
Kloppenburg v. Kloppenburg (DM55-08) Page 5 of7 Findings of Fact and Conclusions of Law-Bench Trial irreconcilable differences. 1
2 2. Oregon Tax Lot 38-05-26-00-000107-00 to Defendant as her sole and separate
3 property. 4 3. Lot 155-3-1-1, Sinajana, Guam to Defendant as her sole and separate property. 5 4. Plaintiff's interest as such may appear in the five acre real property located at Pago 6 Bay, Guam and inherited from his father to Plaintiff to remain as his sole and 7
8 separate property.
9 5. The refund/credit in the approximate amount of $6,300 due from the joint 2006 10 Guam Income Tax return shall be even split by the Parties. 11 6. Plaintiff shall waive all his rights to Defendant's Government of Guam retirement 12
13 benefits.
14 7. All furniture and household effects located at Plaintiff's residence in Guam to
15 Plaintiff. 16 8. All furniture and household effects located at Defendant's residence in Guam to 17 Defendant. 18
19 9. Neither party is awarded spousal support
20 10. Defendant may return to her maiden name at her option. 21 IT IS FURTHER ORDERED that the parties submit a valuation for the following real 22 property and proposed recommendation considering their disagreement before final distribution 23 is decided: 24
25 a. Tax Lot 507 aka 185 Finley Road, Williams, Oregon, consisting of a twenty (20) acre lot
26 without mortgage together with the mobile home thereupon; 27
Kloppenburg v. Kloppenburg (DM55-08) Page 6 of7 Findings of Fact and Conclusions of Law-Bench Trial b. All that certain real property located at 145 Norton Road, Williams, Oregon consisting 1
2 of twelve (12) acres in total more particularly described as contiguous Lots 1100 and
3 1902, Township 38, range 5, Section 34; and 4 c. All that certain real property located at 20690 Williams Highway, Williams, Oregon 5 consisting of.17 acres in total more particularly as Lot 2101, Township 38, Range 05, 6 Section 34. 7
9 SO ORDERED this --L.1. day of May, 2012. 10
11 A further proceedings in the above-entitled case is scheduled for _ _ _ _.::g)-Jr'---J4Ll-iJ.-z----..:at 12 If 0.'-'<'. "7 13
17 /HONORABLE ANITA A. SUK~ Judge, Superior Court of Guam 18
Kloppenburg v. Kloppenburg (DM55-08) Page 70f7 Findings of Fact and Conclusions of Law-Bench Trial