People v. Perez
Opinion
11 IN THE SUPERIOR COURT OF GUAM I
JEFFREY JOHN P. IBANEZ, 1
)
Plaintiff, 1 F;'.
DECISION AND ORDER
VS.
)
EVANGELINE R.C. PEREZ, 1 11 Defendant. I -11 9 INTRODUCTION lo I11I This matter came before the Honorable Judge Steven S. Unpingco on the ~efendants'l l1
11 Motion for an Order to Show Cause for Contempt, filed July 8, 2009. Oral arguments wer el
1) Daniel S. Somerfleck represented the Defendant. Having considered the parties' briefs, or44 l2 heard on August 4,2009. Attorney Joaquin C. Arriola, Jr. represented the Plaintiff and Attorne l3
l4 11 arguments, and the applicable law, the Court now issues the following Decision and Order. I l5 I111 BACKGROUND Jefiey Ibanez ("Jefiey") and Evangeline Perez ("Evangeline") have two minor children4 1/ l6 l7 aged nine (9) and four (4) years old. On March 21, 2008, Jefiey and Evangeline entered a( l8 11 stipulated judgment for joint legal and physical custody of their children alternating week td l9 II week. The Stipulated Judgment contains the following regarding holidays:
2. (iii) The Parties shall equally share all holidays and school scheduled holidays and/or breaks, except as provided in (iv). The Parties shall mutually agree on a schedule for drop-off and pick-up. In the event the parties are unable to agree, the non-custodial parent shall be entitled to visitation from 2:00 p.m. to 7:00 p.m.,
23 11 and exchange shall occur at the Guam Police Department, Dededo Precinct.
24 11 The Stipulated Judgment contains the following provision regarding telephonic communication:
10. When the children are not with one parent, that parent with whom the children are not, shall have open, reasonable rights of telephone communication with the children. Neither parent shall listen in on the children's conversation with the other parent. The children shall also be allowed to contact telephonically the parent they are not residing with at reasonable times. The Parties shall keep each other advised of their respective contact information, including address and telephone numbers, when the children are in their custody.
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Since the Judgment, Jeffrey and Evangeline have not been able to agree upon an alternat visitation schedule or an alternate exchange procedure. See Testimony of Jefiey Ibanez an 3 Evangeline Perez. The parties temporarily exchanged custody at Erika's House, but now use th 4 Police Station. See Id. In order to "equally share all holidays", Jefiey and Evangeline agreed t 5 alternate custody for each holiday and exchange custody at the Dededo Police Station. See Id.
6 Jeffrey was scheduled to take custody of the children for the Memorial Day holiday o 7 May 25,2009. See Id. Instead, Evangeline kept the children when the Police told her to take th 8 children fiom the Dededo Station because Jeffrey was angry and arguing with other officers. Se 9
10 Id. Jeffrey informed Evangeline that he should have custody for the next holiday, and he kep - the children over the Independence Day holiday on July 4, 2009 even though Evangeline wa 11
12 scheduled to have custody. See Id.
On July 9, 2009, Evangeline moved to hold Jefiey in contempt of court for violatin 13
14 section 2(iii) of the Stipulated Judgment. Evangeline contends that Jeffrey willfully violated th
15 order to equally share holidays when he kept the children over the Independence Day holida weekend. Jeffrey asserts that Evangeline altered the holiday exchange schedule when he did no 16
17 enjoy h s turn for custody over the Memorial Day holiday weekend.
Evangeline also contends that Jeffrey unreasonably restricts her telephoni 18 communication with the chldren, in violation of section 10 of the Stipulated Judgment 19 Evangeline asserts that Jeffrey will not take her calls, that he listens in on her conversations wi 20
21 the children, and that she can only talk to the children when Jeffiey allows them to call her
22 about 7 p.m. each night. See Testimony of Evangeline Perez. Jeffrey maintains that he does no listen in on the phone calls, that he bought the chldren cell phones so that they can speak to thei 23
24 mother as long as they want each night, and that Evangeline unreasonably interferes with hi
25 custody because she calls him five to seven (5-7) times each day. See Testimony of Jeffre Ibanez.
26 On August 4,2009 the parties agreed that for the interim, "reasonable rights of telephon 27 communication" would mean three (3) phone calls per day lasting not longer than ten (10 28 minutes each. The Court also ordered each party to submit a list of three (3) proposed counselor for this matter by Friday, August 7,2009. See Order to Show Cause at Record Log 11:27 (Aug 4,2009). No list of proposed counselors has been filed by either party.
3 DISCUSSION 4 Under Guam law, the elements of civil contempt are generally: 1) a valid order; 2 5 knowledge of the order; 3) ability to comply with the order; and 4) willful failure to comply wi the order. See Rodriguez v. Rodriguez, 2003 Guam 8 , 7 15; 2003 WL 1987017 (Sup. Ct. Gu 7 2003). 8 In this case, both parties appear to have difficulty with the March 21, 2008 Stipulate 9 Judgment to equally share certain holidays. It is clear that the Judgment is valid and both partie lo understand that they must "equally share all holidays" pursuant to the order. Jefiey an Evangeline agreed to alternate holidays in order to meet this requirement. While the parties ma l2 not amicably exchange their children, there is no indication that either Jefiey or Evangeline 13 unable to "equally share all holidays". Even if a police officer told Evangeline to keep h 14 children on Memorial Day, she is not prohibited from ceding the Independence Day holiday 15 Jefiey in order to share equally. Evangeline kept the children for the Memorial Day holid l6 although the parties may have understood that day to be Jefiey's day to exercise physic 17 custody. Likewise, Jeffry kept the children for the Independence Day holiday although this ma 18 have been Evangeline's day to have the children. In this manner, the parties actually share 19 these holidays equally and the terms of the Stipulated Judgment were not violated per se. Thi 20 Court elects to interpret the Stipulated Judgment in the light that would encourage farnil 21 harmony and promote a better understanding between the parties in the future instead of holdin 22 both parties in contempt and adding further fuel to the acrimonious relationshp. Therefore 23 neither party shall be held in contempt for failure to equally share all holidays. 24 Additionally, both parties appear to have difficulty with the March 21, 2008 Stipulate 25 Judgment to give open, reasonable rights of telephone communication with the children. Bo 26 Jeffrey and Evangeline believe that the communication is unreasonable. The parties made 27 interim agreement to allow Evangeline three (3) phone calls for ten (10) minutes per day w the children are with Jefiey. The Court finds this agreement to be consistent with the order fo 1 "reasonable rights of telephone communication," and Jeffrey and. Evangeline shall continue to follow this arrangement in order to comply with the Stipulated Judgment. Jeffiey shall also 3 11 refiain fiom interfering with the subject matter of the phone conversations unless asked to do so. I 4 11II Furthermore, the parties did not submit proposed counselors for this matter. At oral(
11 argument on November 13,2008 and August 4,2009, both Jeffiey and Evangeline requested th
4
6
II Court to appoint Dr. Wycoff and the Client Services and Family Counseling Division.
"el
7
8 Continued Ex Parte Application for Order to Show Cause at Record Log 4:39 (Nov. 13, 2008). Order to Show Cause at Record Log 11:26 et seq. (Aug. 4,2009). For this reason, the parties are .I
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