Manibusan v. Manibusan

Opinion

r ft~c~u

SU~’E~iOR COURT

1 OF GUA~1 Z020 HAY 27 ~ 3: 4 7~

2 CLER~F COURT

3

IN THE SUPERIOR COURT OF GUAM 5 MELANIE TERESA R. MANIBUSAN, 6 Plaintiff,

7 Domestic Case No.: DM0144-14

8 vs. DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR FULL 9 MELVYN MANIBUSAN, LEGAL AND PHYSICAL CUSTODY

10 Defendant. 11 12 Introduction 13 This matter came before the Honorable Maria T. Cenzon on March 11, 2020, for a 14 hearing on Melanie Manibusan’s (“Plaintiff’) Motion for Full Legal and Physical Custody 15 (“Motion”) filed on January 28, 2020. Plaintiff served Melvyn Manibusan (“Defendant”) with 16 the Motion via U.S.P.S. certified restricted mail and regular mail.’ Pursuant to CVR 17 7.1(d)(1)(A)-(C), Defendant’s opposition was due on February 25, 2020. Defendant did not file 18 an opposition [and failure to do so constitutes a non-opposition]; however, a non-opposition 19 does not “relieve the lower court of its duty to consider the merits of the motion before it.”2 20

21 1 On January 29, 2020, Plaintiff filed a Declaration of Mailing wherein she stated that she mailed the Motion, C.V.R. 7.1 Form 1, and Declaration of Melanie Teresa R. Manibusan n.k.a. Melanie R. Manglona in Support of 22 Motion For Full Legal and Physical Custody to Defendant via U.S.P.S. certified restricted mail and regular mail.

The destination address was the last known address of Defendant: 20815 18th Ave. E. Spanaway, Washington 98387. On May 14, 2020, Plaintiff filed an Amended Declaration of Mailing and attached a copy of the signed 23 return receipt dated February 6, 2020.

2 Quitugua v. Flores, 2004 Guam 19 ¶ 27 (quoting Superior Court Local Rule 5B(2)C’Absent good cause shown,

24 failure to file one of the papers required by B. supra has the same effect as filing a notice of non-opposition.”)

Guam Ct. R. 5(B)(2004).

Manibusan v Manibusan; DM0144-I 4 D&O re: Plaintiff’s Motion for Full Legal and Physical Custody 1 Despite receiving service by mail, Melvyn Manibusan (“Defendant”) was not present at 2 the hearing.3 Georgette Bello Conception, Esq., represents Plaintiff, who was also present at 3 the hearing. Following the noticed hearing, the Court took the Motion under advisement 4 pursuant to CVR 7.1 (e)(6)(D) of the Local Rules of the Superior Court of Guam; and, having 5 considered the arguments, evidence and file herein, the Court hereby GRANTS Plaintiff’s 6 Motion. 7 - Background 8 The parties were married on January 5, 2010. Complaint for Divorce at 2 (March14, 9 2014). The parties have two minor children, to wit: Mason Xander Manibusan (D.O.B. June 9, 10 2009) and Madden Jace Manibusan (D.O.B. May 11, 2010) (collectively “the Children”). Id at 11 2. On March 14, 2014, Plaintiff filed a Complaint for Divorce (“Complaint”) which included a 12 Marital Settlement Agreement and Consent to Divorce that was signed by the parties.4 On 13 March 27, 2014, the Court issued both an Interlocutory Judgement of Divorce and Final 14 Decree of Divorce (“Divorce Decree”) ordering that the Marital Settlement Agreement be 15 incorporated into the Divorce Decree. Final Decree of Divorce (March 27, 2014).

16 I. Parties Shared Joint Legal Custody With Sole Physical Custody to Plaintiff.

17

18 The agreed upon Marital Settlement Agreement gave Plaintiff and Defendant joint legal 19 custody of the Children with the Plaintiff enjoying sole physical custody, with reasonable 20 visitation to Defendant. Marital Settlement Agreement at ¶13. Defendant’s visitation included 21 two (2) weekends out of the month, from Saturday at 8:00 a.m. until Sunday 5:00 p.m. Id. The

22 ___________________________ ~ “Service under Rule 5(a) is made by... mailing a copy to the last known address of the person served. Service by 23 mail is complete on mailing.” Guam R. Civ. P. 5(b)(2)(B).

~ Plaintiff signed the Marital Settlement Agreement and Consent to Divorce on March 4, 2014. Defendant signed

24 the Marital Settlement Agreement and Consent to Divorce on March 11, 2014. Both documents were filed with the Complaint on March 14, 2014.

Manibusan v Manibusan; DM0144-14 D&O re: Plaintiff’s Motion for Full Legal and Physical Custody 1 parties were to share holidays (New Year, Easter, Thanksgiving, and Christmas). Id. When 2 either party is off island for temporary military duty, the Children were to remain in the 3 physical care of the parent who remained in Guam. Id.

4 IL Hearing On Plaintiff’s Motion 5

6 Plaintiff’s Motion for Full Legal and Physical Custody was heard on March 11, 2020.

As a threshold question, the Court inquired whether Defendant was served with Notice of the

8 Motion and Plaintiff represented that the Notice and Motion were mailed to the Defendant as set forth, above. The Court instructed Plaintiff to provide proof of service by filing a

10 Declaration of Service setting forth the manner of service and compliance with the Guam Rules of Civil Procedure. The Court took the primary issue of custody modification under

12 advisement at the conclusion of the hearing. Plaintiff filed the Declaration of Service on May 13 14, 2020, with a copy of the U.S.P.S. Certified Return Receipt dated February 6, 2020, 14 indicating that Defendant did, in fact, receive it. 15 With respect to the Motion regarding the renewal of the Children’s passports,, the 16 Plaintiff represented to the Court that multiple attempts to obtain the Defendant’s signature for 17 the purpose of renewing the passports had been fruitless. The Court found that given 18 Defendant’s lack of contact with the Plaintiff or the Children since 2017, the best interests of 19 the Children are served by permitting the custodial parent to renew the Children’s passports 20 without the countersignature of the non-custodial parent. Order Re: Renewal of Minors 21 Passport Documents (April 15, 2020). 22 Discussion 23 The Court has jurisdiction to modify the custody arrangement originally set forth in the

24 Divorce Decree pursuant to 19 G.C.A. § 8404(1) (“[amy custody award shall be subject to Manibusan v Manibusan; DM0144-i 4 D&O re: Plaintiff’s Motion for Full Legal and Physical Custody 1 modification or change whenever the best interests of the child require or justify such 2 modification or change . . .“) (See also Lanser v. Lanser, 2003 Guam 14 ¶ 9). In the instant 3 case, “the burden of showing a sufficient change in circumstances is on the party seeking the 4 change of custody.” In re Marriage of Carney, 24 Cal.3d 725, 731 (1979) (citing Proutyv. 5 Prouty, 16 Cal.2d 190, 193 (1940); In re Marriage of Kern, 87 Cal.App.3d 402, 410-411 6 (1978); In re Marriage of Mehlmauer, 60 Cal.App.3d 104, 108-109 (1976). For the Court to 7 justify a modification of the Divorce Decree, Plaintiff must present a “persuasive showing of 8 changed circumstances affecting the child,” (Lanser at 2 (quoting Carney at 38)), because “it is 9 desirable that there be an end of litigation and undesirable to change the child’s established 10 mode of living.” Id. 11 I. Physical Custody was already granted in Final Decree of Divorce 12 When the Court analyzes a dispute regarding the custody of a minor child, “the court 13 may, during the minority of the child, make such order for the custody of such minor child as 14 may seem necessary or proper.” 19 G.C.A. § 8404. There are no fixed standards to determine 15 what constitutes a substantial change in circumstances for modifying custody; instead, a court 16 should be guided by a rule of very general application that the welfare and best interests of the 17 children are the primary concern in determining whether the order should be changed. 18 Sundstrom v. Sundstrom, 865 A.2d 358 (Vt. 2004). 19 Here, Plaintiff moves the Court to grant her full physical custody of the Children. 20 However, the Plaintiff already enjoys sole physical custody of the Children pursuant to both 21 the MSA and the Final Decree of Divorce. Therefore, the Court need not revisit this issue. 22 II. Legal Custody 23 Under Guam law, there is a preference for both joint legal and joint physical custody

24 arrangements, but the preference for joint custody is always secondary to the best interests of Mänibusan v Manibusan; DM0 144-14 D&O re: Plaintiff’s Motion for Full Legal and Physical Custody 1 the children. See Howerton v. Howerton, 2004 Guam 8 ¶14. “Legal custody” refers generally 2 to the right and responsibility to make decisions with important and long-term implications for 3 a child’s best interest and welfare. Hall v. Hall, 655 S.E.2d 901 (N.C. App. 2008). Joint legal 4 custody is only appropriate where the parents “demonstrate the willingness and ability to share 5 the rights and responsibilities of raising their children.” Leone v. Leone, 917 S.W.2d 608, 614 6 (Mo. App. W.D.1996). “Where the parties are unable to communicate or cooperate and cannot 7 make shared decisions regarding the welfare of their children, joint custody is improper.” 8 Leone v. Leone, 917 S.W.2d 608, 614 (Mo. App. W.D.1996). 9 Plaintiff requests the Court to grant her full legal custody of the Children. In support of 10 her request, Plaintiff argues Defendant is deliberately absent from any matters that involve the 11 Children. Plaintiff states Defendant has failed to maintain any type of meaningful relationship 12 with the Children since he moved off island in 2017. Plaintiff states in the Motion that 13 Defendant has not provided any support for the Children and fails to make any continuous or 14 considerable attempt to remain in contact with the Children since 2017. Motion For Full Legal 15 and Physical Custody at 3 (Jan. 28, 2020). 16 A custodial parent’s decision to leave the state with the children constitutes a substantial 17 change in circumstances, as necessary to modify a child custody or visitation arrangement. 18 Hamilton v. Hamilton, 42 P.3d 1107 (Alaska 2002). The Court finds that despite being 19 properly served with Plaintiff’s Motion, Defendant’s failure to appear in this matter in any 20 manner indicates his disinterest in the decisions and issues involving the Children. The Court 21 finds modification of the legal custody agreement would not significantly alter the existing 22 relationship between Defendant and the Children. Furthermore, the Court finds that modifying 23 the existing legal custody agreement in favor of the Plaintiff would be in the best interest of the

24 Children since it would remove any undue delay by the Defendant for any necessary services Manibusan v Manibusan; DM0 144-14 D&O re: Plaintiff’s Motion for Full Legal and Physical Custody 1 or care the Children may require in the future. Therefore, the Court finds modification of the 2 legal custody agreement in favor of the Plaintiff is warranted under these circumstances. 3 Conclusion 4 The Court finds a change in circumstances has occurred since the parties Marital 5 Settlement Agreement and the changes are sufficient to modify legal custody of the Children. 6 Plaintiff shall continue to have full physical custody and is hereby granted full legal custody of 7 the Children. Therefore, for the reasons set forth herein, Plaintiff’s Motion for Full Legal and 8 Physical Custody is GRANTED.

9 MAY 27 2020

10 SO ORDERED this _______

11

12 ~ORABLE MARIA T. CENZON

13 Judge, Superior Court of Guam

14 15 16 17 18 19 20 21 22 23

24 Manibusan v Manibusan; DM0 144-14 D&O re: Plaintiff’s Motion for Full Legal and Physical Custody