4 IN THE SUPERIOR COURT OF GU&M
5 GEORGE E. PTACK, DOMESTIC CASE NO. DM0207-10 6
7 Plaintiff, FINDINGS OF FACT & 8 v. CONCLUSIONS OF LAW 9 JOYCEPTACK 10 aka JOYCE GUNDERSON,
11 Defendant. 12
13 INTRODUCTION
14 This matter came before the Honorable Arthur R. Barcinas on September 26, 2012, 15 December 03, 2012, and December 04, 2012 for the bench trial for the dissolution of marriage. 16 The issues addressed during trial were the nature and distribution of marital and separate 17
property and debt. Attorneys William B, Jones, Esq. and Anthony R. Camacho, Esq. 18
19 represented the Defendant, JOYCE PTACK (GUNDERSON). Attorney DanielS. Somerfleck,
20 Esq. represented the Plaintiff, GEORGE PTACK. The Court heard testimony from both parties 21 and now issues the following \Vritten Findings of Fact. 22 FINDINGS OF FACT 23
24 After hearing testimony and taking evidence from the parties on the above-mentioned
25 issues, the Court finds that the following facts were established by a preponderance of the 26 evidence. 27
28 Findings of Fact & Conclusions of Law Ptack v. Ptack; Domestic Case No. DM0207 -10
STATISIICAL FACTS
2 1. Plaintiff filed a Complaint for Dissolution of Marriage on March 25, 2010.
3 Defendant filed her Answer to Complaint for Dissolution of Marriage and Counter- 4 Claim for Divorce on May 28, 2010. Plaintiff filed his reply to Counterclaim on July 5 27,2010. 6 2. Plaintiff and Defendant were married on March 07, 2003 in Belund, Denmark. 7
8 3. The Parties separated on April 07, 2010.
9 4. The Parties lived together as husband and wife for approximately seven (7) years 10 and one (1) month. They have not yet been granted a Decree of Divorce and have now 11 been married for approximately nine (9) years and nine (9) months. 12
5. There are no children of the marriage. 13
14 MARITAL INCOME 15 Prior to and during the marriage, Defendant has been employed with the 6. 16 Department of Defense Education System as a teacher. 17 7. Plaintiff testified that aside from a seven (7) to eight (8) month period of 18
19 employment as a corporate pilot, he had been in retirement and not employed.
20 Defendant testified that during this employment period, he made approximately
21 $92,000.00. 22 8. The parties' joint income prior to separation was presented to the Court through
testimony and the admission of exhibits. Defense Exhibit AA was admitted summarized 24
25 the joint income of the parties as presented by annual tax documents contained in Joint
26 Exhibits 11 thru 18. All admitted during the trial, Joint Exhibits 11, 12, 13, 14, 15, 16, 27
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17, and 18 were tax filings for 2003, 2004, 2005, 2006, 2007, 2008, 2009, and 2010
2 respectively. Said Joint Income was as follows:
3 YEAR JOINT INCOME 4 2003 $165,882 5 2004 $243,649 6 2005 $159,441 7
8 2006 $151,843
9 2007 $163,494 10 2008 $176,013 II 2009 $161,011 12
2010 $168,301 13
14 Def. Ex. AA; see also Joint Ex. 11-18. 15 MARITAL PROPERTY 16 9. Arizona Townhouse: 9705 E Mountain View #1164 17 a. Plaintiff testified that the Arizona Townhouse was purchased before the 18
19 marriage for $172, 000.00. He further testified that approximately two (2) months after
20 the parties were married a transfer of title was executed effectively adding both spouses 21 to the title to the Arizona Townhouse. Joint Exhibit 5, which was admitted into 22 evidence at trial, is a Warranty Deed designating the Arizona Townhouse as Community 23 Property with Right of Survivorship. 24
25 b. Defendant noted that at the date of separation, approximately $90,000.00 was
26 still owed on the property. Joint Exhibit 6, which was admitted into evidence at trial, 27
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contains an email dated January 16, 2012 from Rand A. Rose, a Scottsdale, estimating
2 the then-current value of the Arizona Townhouse to be $240,000.00.
3 c. Plaintiff noted that the mortgage is approximately $800.00 per month and the 4 Home Owners' Association Fees are approximately $340.00 per month. 5 d. Defendant never lived in this home. 6 10. Arizona Lake House: 101 02 Cochise 7
8 a. Plaintiff testified that the parties purchased the Arizona Lake House in 2004
9 for approximately $625,000.00. Plaintiff went on to state that both parties were on the 10 deed. 11 b. According to the Plaintiff's testimony, the Arizona Lake house was sold in 12 2012 with the anticipated closing to occur on November 05, 2012. The property sold for 13
14 $625,000.00 with approximately $468,000.00 being owed at the time of sale.
15 Approximately $103,000.00 worth of proceeds from the sale ofthe Lake House remains 16 in an escrow account. 17 c. Plaintiff testified that up until August 2007 expenses for this property were 18
19 taken from the parties' joint accounts.
20 d. After the parties separated, Defendant contributed to (1) Pool care, (2) Home 21 Owners' Association Fees, and (3) Miscellaneous Maintenance. 22 11. Northfield, Minnesota 23 a. Defendant testified that both parties are on the title to the Northfield, 24
25 Minnesota home located at 1236 East Woodley Street, Northfield, Minnesota 55057.
26 See also Joint Exhibit 4. 27
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b. Testimony by the Defendant represented that the current note on the home is
2 approximately $115,000.00 with monthly mortgage payments amounting to roughly
3 $857.21 per month. See also Joint Exhibit 4. 4 c. According to Defendant, the property was purchased on or about August 2009 5 for approximately $180,000.00 and is currently valued at about $1 60,000.00 to 6 $180,000.00. see Joint Exhibit 4. 7
8 d. The property has never been rented. Defendant makes payment on the
9 property. 10 12. Los Osos, California Property 11 a. Defendant testified that both parties are on the title of the property. The 12 parties currently hold title as husband and wife as joint tenants. Joint Exhibit 3. 13
14 b. Defendant testified that the current note on the property is approximately
15 $225,000.00 with monthly mortgage payments amounting to approximately $1,700.00 16 per month. 17 c. The property 1s currently being rented for approximately $1,300.00 per 18
19 month.
20 d. Defendant testified that the current value of the property is approximately
21 $300,000.00 to $320,000.00 and this value is essentially equal to the value at the time of 22 separation. 23 e. The difference between the monthly mortgage payments and the monthly 24
25 rental income is approximately $500.00 per month.
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f. PlaintitT testified at trial that he did not contribute to the care, maintenance, or
2 mortgage of the properties in California. He went on to state that PlaintitT incurs all
3 payments. Said property was the Defendant's prior to marriage. 4 13. Timeshares in Lake Tahoe and Phuket, Thailand. 5 a. Defendant testified that both timeshares were valued at approximately 6 $21,000.00 7
8 b. Both parties testified that Plaintiff would rece1ve the Phucket, Thailand
9 Timeshare and Defendant would receive the Lake Tahoe Timeshare. 10 MARITAL EXPENSES 11 14. Plaintiff and Defendant testified to the numerous expenses incurred by both 12
13 parties during the marriage.
14 a. NEA Members Benefit Credit Card (Account Ending in 4113)
15 i. During trial, admitted into evidence was Joint Exhibit 19 a compilation 16 of credit card statements for NEA Members Benefit Credit Card account ending in 4113 17 and Defense Exhibit BB a summary ofthose statements. 18
19 ii. Between June 06, 2003 and July 07, 2004, although $13,455.71 m
20 purchases were made, $5,134.25 of those charges were community expenses. Def. Ex.
21 BB. 22 b. Citi Advantage World Mastercard (Account Ending in 8820) 23 i. During trial, admitted into evidence were Joint Exhibit 21 credit card 24
25 statements for Citi Advantage World Mastercard account ending in 8820 and Defense
26 Exhibit CC a summary of those statements. 27
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ii. Between October 21, 2008 and August 18,2010, although $28,122.04
2 in purchases was made, $3,840.31 of those charges were community expenses. Exhibit
3 cc. 4 c. American Express Credit Card (Account Ending in 01 005) 5 i. During trial, admitted into evidence was Joint Exhibit 24 which was 6 credit card statements of American Express Credit Card account ending in 01005 and 7
8 Defense Exhibit DD a summary of those statements.
9 ii. Between 2009 to 2010, although $7,217.44 in purchases were made, 10 $4,495.97 of those charges were community expenses. Exhibit DD. 11 d. World Perks Visa Credit Card (Account Ending in 3309) 12 i. During trial, admitted into evidence was Joint Exhibit 20 credit card 13
14 statements for World Perks Visa Credit Card account ending in 3309 and Defense
15 Exhibit EE a summary of those statements. 16 ii. Between May 15, 2003 to October 15, 2008, although $53,607.86 in 17 purchases were made, $37,026.52 of those charges were community expenses. Exhibit 18
19 EE.
20 e. Chase Credit Card (Account Ending in 5754) 21 i. During trial, admitted into evidence was Joint Exhibit 22 credit card 22 statements for Chase Credit Card account ending in 5754 and Defense Exhibit EE a 23 summary of those statements. 24
25 ii. In 2010, although $10,345.67 in purchases were made, $2,493.96 of
26 those charges were community expenses. Exhibit EE. 27 f. U.S. Bank (Account Ending in 5675) 28
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i. During trial, admitted into evidence was Joint Exhibit 25 a collection
2 of statements for U.S. Bank Checking account ending in 5675 and Defense Exhibit GG,
3 a summary of those statements. 4 11. Between 2003 to 2007, Defendant's contributions to the account 5 amounted to $240,480.00 while her expenses totaled $136,911.70. Def. Ex. EE. The 6 Difference between Defendant's contributions and expenses is a surplus of 7
8 approximately $103,567.00. Def. Ex. EE.
9 111. Between 2003 to 2007, Plaintiffs contributions to the account 10 amounted to $427,849.00 while his expenses totaled $579,001.30. Def. Ex. EE. The II Difference between Plaintiffs contributions and expenses is deficit of approximately 12
13 $151,152.30. Def. Ex. EE
14 g. Community Checking Account (Japan Account)
15 i. Defendant testified that while living in Germany, Japan, and Guam, the 16 parties opened local or community-based checking accounts wherein Defendant's 17 separate property income generated by separate property rental would be deposited. 18
19 11. During trial, admitted into evidence was Joint Exhibit 26 a check
20 registry for the Japan Community Checking account and Defense Exhibit HH, 21 Defendant's summary of those registry documents. 22 iii. Defendant's contributions to the account amounted to approximately 23 $18,000.00 per year while her expenses totaled $16,896.43. Def. Ex. HH. Defendant's 24
25 withdrawals and expenditures against this account did not exceed her contributions.
26 Def. Ex. HH. 27
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iv. Plaintiffs contributions to the account amounted to $75,725.00 while
2 his expenses totaled $106,928.30. Def. Ex. HH. The Difference between Plaintiffs
3 contributions and expenditures against this account is a deficit of approximately 4 $31,203.30. Def. Ex. HH. 5 h. Community Checking Account (Guam Account) 6 i. Defendant testified that while living in Germany, Japan, and Guam, the 7
8 parties opened local or community-based checking accounts wherein Defendant's
9 separate property income generated by separate property rental would be deposited. 10 ii. During trial, admitted into evidence was Joint Exhibit 27, a check 11 registry for the Guam Community Checking account, and Defense Exhibit II, a 12
13 summary of those registry documents.
14 iii. Defendant's contributions to the account amounted to approximately
15 $18,000.00 per year. Def. Ex. II. 16 iv. Plaintiff did not contribute to this account. Def. Ex. II. Plaintiff did 17 write a total of $13,005.00 of checks to himself. Def. Ex. II. Plaintiffs other 18
19 expenditures against this account totaled $9,967.20. Def. Ex. II.
20 i. Defendant incurred all the housing costs up to separation. Defendant testified 21 that these costs were deducted from her salary. During trial, admitted into evidence was 22 Defense Exhibit QQ. For each full year of marriage Defendant incurred approximately 23 $35,000.00 in housing costs. Def. Ex. QQ. From 2003 to 2007, this amounted to 24
25 $153,000.00. Def. Ex. QQ.
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PLAINTIFF's INVESTMENT INCOME
2 15. During the marriage Plaintiff maintained several investment accounts that have
3 been retained since separation. 4 a. American Century Investment Account (Account Ending in 3443) 5 i. During trial, admitted into evidence was Joint Exhibit 29 statements 6 for American Century Investment account ending in 3443 and Defense Exhibit JJ, a 7
8 summary of said statements.
9 ii. Plaintiffs investment account increased in value over the course of the 10 marriage and as of December 31,2010 was valued at $50,180.19. Exhibit JJ. 11 iii. Between 2003 and 2010, marriage to separation, this investment 12
13 account accrued $9,194.81.
14 b. DWS Account (Account Ending in 1854)
15 i. During trial, admitted into evidence was Joint Exhibit 30, statements of 16 D WS account ending in 1854 and Defense Exhibit KK, a summary of those statements. 17 ii. Plaintiffs investment account increased in value over the course of the 18
19 marriage and at the end of2011 was valued at $1,774.85. Exhibit KK.
20 iii. No statements were available prior to 2006 nor for 2010. Between
21 2006 and 2011, this account accrued $135.15. 22 c. Scudder Account (Account Ending in 1854-1) 23 i. During trial, admitted into evidence was Joint Exhibit 31 statements of 24
25 Scudder account ending in 1854-1 and Defense Exhibit LL, a summary of said
26 statements. 27
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ii. At the end of 2005, Plaintiffs investment account was valued at
2 $1,565.76. Exhibit LL.
3 iii. No statements were available after 2005. 4 d. Fidelity Investment Portfolio 5 1. During trial, admitted into evidence was Joint Exhibit 32, 6 statements of Plaintiff's Fidelity Investment Portfolio, and Defense Exhibit MM, a 7
9 ii. At the end of 2010, Plaintiffs investment portfolio was valued at 10 $158,961.35. Exhibit MM. II e. E-Trade Account (Account ending in 4902) 12 i. During trial, admitted into evidence was Joint Exhibit 33, statements 13
14 for E-Trade account ending in 4902, and Defense Exhibit NN, a summary of those
15 statements. 16 ii. No statements were available prior to 2006. From 2006 through 2010, 17 this account increased by $256.28. At the end of2011, Plaintiffs E-Trade Account was 18
19 valued at $59,398.70. Exhibit NN.
20 f. ING Direct Accounts (Accounts ending in 1870 and 3970) 21 i. During trial, admitted into evidence was Joint Exhibit 34, statements 22 for ING Direct Accounts ending in 1870 and 3970, and Defense Exhibit 00, a summary 23 of those statements. 24
25 11. At the end of 2010, the account ending in 1870 designated as
26 "TerryJoyce" was valued at $0.00. Exhibit 00. At the end of2011, the account ending 27 in 3970 designated as "Townhouse" was valued at $27,456.13. Exhibit 00. 28
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iii. No statements were available prior to 2005. The "TerryJoyce"
2 Account has a zero-balanace by 2010. In 2006, that account had $48,301.24. The
3 "Tmvnhouse" Account increased by $6,470.28 between 2006 and 2011. 4 g. Vangaurd Accounts (Accounts ending in 3820 and 7348) 5 i. During trial, admitted into evidence was Joint Exhibit 36, statements 6 for Vangaurd Accounts ending in 3820 and 7348, and Defense Exhibit PP, a summary of 7
8 those statements.
9 11. At the end of 2011, the account ending in 3820 was valued at 10 $116,630.40 and the account ending in 7348 was valued at $33,105.37. Exhibit PP. 11 111. Between 2003 and 2010, account ending in 3820 increased in value 12 by $26,657.82. Between 2003 and 2010, account ending in 7348 increased by 13
14 $26,147.21. 15 DEFENDANT's RETIREMENT 16 16. Defendant's Thrift Savings Plan: During her testimony, Defendant approximated 17 that the total contributions made to her Federal Thrift Savings Plan from marriage to the 18
19 date of separation was about $50,000.00. Defendant noted that these contributions were
20 made pursuant to her employment with the DoDEA. 21 PERSONAL PROPERTY 22 17. Personal Property 23 a. Safety Deposit Box 24
25 i. Plaintiff testified that he was in possession of the items located in the
26 Scottsdale, Arizona Safety Deposit Box. 27
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ii. Defendant claims ownership to the following items that were in the
2 safety deposit box. Plaintiff has acknowledged possession of said items and in his
3 examination, provided valuations to said items: 4 (A) Sapphire Ring with Diamond (Approximate Value $1,500.00 to 5 $2,000.00) 6 (B) Blue Topaz Ring with Pendant (Approximate Value $1,500.00 to 7
8 $2,000.00)
9 (C) Diamond Necklace 10 (1) Insured at $12,000.00 to $14,000.00 11 (2) Plaintiff had given the necklace to Defendant as a Birthday 12
13 Gift
14 (3) Plaintiff testified that the Gem embodied within the necklace
15 was from a ring owned by Plaintiffs grandfather. 16 (4) Plaintiff contends that the necklace was to go to Defendant for 17 her life and upon her death go to his (Plaintiffs) son. 18
19 b. Testimony of the Parties alluded to the following significant pieces of
20 household goods needing to be addressed: 21 i. Plaintiff testified to the approximate valuation of the following items 22 to be around $5,000.00 to $6,000.00: 23 (A) Rosewood Alter Table 24
25 (B) Japanese Bookshelf
26 (C) Oil Painting 27 (D) Cuckoo Clock from Germany 28
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11. Dining Set (Approximate Value:$3,000.00)
2 m. Gold Embossed Cabinet (Purchased in Japan)
3 iv. Japanese Drum 4 v. Wall Divider (Purchased on Guam; Approximate Value $300.00 to 5 $400.00) 6 vi. German Trunk (Currently in the possession of Plaintiff) 7
8 vii. Leather Living Room Set (Approximate Value $2,000.00)
9 viii. English Table (Purchased in Germany) 10 ix. Black Lacquered Cabinet 11 18. Agreements 12 i. Defendant testified that the prior to the purchase of the Arizona Lake House, 13
14 the parties had agreed to sell both their existing retirement home in order to purchase the
15 joint property. Defendant was to sell her Minnesota home and Plaintiff was to sell his 16 Arizona Townhouse. As noted above, Defendant did in fact sell her first Minnesota 17 retirement home with said funds going to the purchase of the Arizona Lake House. 18
19 Although Plaintiff did place Defendant on the title of the Arizona Townhouse, Plaintiff
20 never sold the Arizona Townhouse and said property is still within the community. 21 ii. Defendant testified that the parties had agreed that although Plaintiff managed 22 the joint accounts, any funds spent from Defendant's separate or retirement funds would 23 be reimbursed by Plaintiff. Defendant testified that she was led to believe that these 24
25 monies were withdrawn and deposited/replaced into an account meant for her eventual
26 retirement. Defendant notes that after separation she discovered that no funds were in 27 the retirement accounts she assumed were available for her retirement. 28
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!H. Defendant also disclosed that other expenses such as cable, Plaintiff's
2 cellular service bill, and other expenses would be paid for by Plaintiff since Defendant
3 was handling the major housing costs. Defendant testified that she had to incur much of 4 these costs or they were paid using her separate or salary monies. 5 19. Defendant testified that since separation she undergoes therapy pursuant to the 6 events surrounding her marriage to the Plaintiff. Defendant began therapy in 2009 on 7
8 Andersen Air Force Base and continues to the present time.
9 20. Admitted into evidence was Defense Exhibit RR, two diagrams that illustrate and 10 generally summarize the income and expenditures of the community during the marriage 11 CONCLUSIONS OF LAW 12
I. GROUNDS FOR DIVORCE 13
14 Guam's divorce law provides for an equal division of property in divorces
15 rendered on any ground other than that of adultery or extreme cruelty. 19 G.C.A. §8411 (b). If 16 the decree be rendered on the ground of adultery or extreme cruelty, the community property 17 shall be assigned to respective parties in such proportions as the court, from all the facts in the 18
case, and the condition ofthe parties, may deem just. 19 G.C.A. § 8411(a). Extreme 19
20 cruelty is defined as the wrongful infliction of grievous bodily injury, or grievous mental 21 suffering, upon the other by one party to the marriage. 19 G.C.A. § 8205. The Supreme Court 22 of Guam has recognized that the trial court has "broad discretion" to divide community assets in 23 any fashion which complies with the divorce statute. Navarro v. Navarro, 2000 Guam 31, ~8. 24
25 The burden is with the party who seeks the division of community property or debt. Id. at ~9.
26 Therefore, Defendant has the burden of proving that the marital property should be divided 27 pursuant to 19 G.C.A.§§ 8205 and 8411, on the ground of extreme cruelty. 28
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Defendant has demonstrated that she suffered extreme cruelty during the
2 marnage. Mental cruelty is a course of unprovoked, offensive conduct which results in
3 humiliation and anguish, and makes a spouse's life miserable and unendurable. Sablan v. Perez, 4 DM1004-93, Decision and Order (Maraman, December 22, 1994), citing Rittmeyer v. 5 Rittmeyer, 438 N.E.2d 237 ( Ill. App. 5th Dist., 1982). An action for divorce on the basis of 6 "extreme cruelty is not insufficient merely because it alleges only acts of cruelty committed 7
8 subsequent to final separation of husband and wife." Stitt v. Stitt, 65 P.2d 1297, 1298 (Cal.
9 1937). 10 Here, Defendant has proven that she has suffered extreme cruelty at the hands of II Plaintiff. Defendant testified that she was led to believe that Plaintiff was managing both 12 community and Defendant's separate funds for her eventual retirement. Defendant noted that at 13
14 the beginning of the marriage Plaintiff did set up accounts she believed were for her retirement.
15 After the parties separated, Defendant discovered that these accounts were depleted or 16 significantly drained of their respective monies. Defendant disclosed during testimony that this 17 came as a surprise as she thought her retirement was being managed by Plaintiff. During the 18
19 marriage, Defendant had incurred almost all cost of the basic community expenses. These
20 included housing, utilities, food, and the like. The evidence presented at trial reveal that despite 21 Defendant's significant undertaking for the community to which her entire teacher's salary and 22 a good majority of her separate income were dedicated, Plaintiff withdrew and exhausted more 23 than he was contributing to the community assets. 24
25 Between 2003 to 2007, Defendant's contributions to the U.S. Bank Checking
26 Account amounted to $240,480.00 while her expenses totaled $136,911.70. Def. Ex. EE. The 27 Difference between Defendant's contributions and expenses is a surplus of approximately 28
Page 16 of24 Findings of Fact & Conclusions of Law Ptack v. Ptack; Domestic Case No. DM0207-l 0
$103,567.00. Def. Ex. EE. During this sa.tne period Defendant had approximately $153,000.00
2 deducted from her salary to cover the cost of housing for the parties. Def. Ex. QQ. Defendant's
3 separate assets, namely the funds generated by her rental income, were also expended to support 4 the community and for Plaintiffs separate liabilities. For example, Defendant's rental income 5 was deposited into a community (local) bank account on Guam. Def. Ex. II. Although Plaintiff 6 did not contribute to this account, Defendant discovered that he wrote a total of $13,005.00 in 7
8 checks to himself. Def. Ex. II. Plaintiff's other expenditures against this account totaled
9 $9,967.20. Def. Ex. II. 10 During this same 2003 to 2007 time-frame, Plaintiff's contributions to the U.S. 11 Bank Checking account amounted to $427,849.00 while his expenses totaled $579,001.30. Def. 12
Ex. EE. The Difference between Plaintiff's contributions and expenses is a deficit of 13
14 approximately $151,152.30. Def. Ex. EE. Despite this exhaustion of community assets,
15 Plaintiffs separate investment accounts and investment portfolios were maintained. See Def. 16 Ex. JJ- Ex. PP. 17 Prior to the parties marrymg, Defendant had significant amounts of assets 18
19 attained for the purpose of retirement. Defendant testified that her prospective retirement date
20 was between 2007 to 2010. After the parties separated, Defendant discovered that Plaintiff did 21 not manage her retirement assets as Plaintiff had represented he would. Defendant notes that as 22 of this 2012 trial, she is unable to retire and must rebuild what was loss during the marriage. 23 Defendant disclosed during trial that since the parties separated, she has had to 24
25 undergo therapy to process and cope with the events occurring during the marriage and the .. -~~---!+---- 26 aftermath of Plaintiffs extreme and cruel behaviors. Since 2009, over three years, Defendant 27 has undergone this clinical intervention to manage the consequences of the Plaintiffs actions. 28
Page 17 of24 Findin of Fact & Conclusions of Law Ptackv. Ptack; Domestic Case No. DM0207-IO
Based on the evidence presented at trial, the Court finds that Defendant endm:~
2 and continues to endure grievous mental suffering due to Plaintiff's actions. The Court hereby
3 grants a dissolution of the marriage on the ground of extreme cruelty in favor of the Defendant. 4 II. DIVISION OF COMMUNITY PROPERTY AND DEBTS 5 Community property is defined as ''property acquired by either spou~e during the 6
7 marriage which is not separate property. 19 GCA § 610l(b). Separate property is property
8 acquired by either spouse before the marriage. 19 GCA § 6101(a)(l). Apportionment is used 9 wh n a trial concludes that property contains both separate and community interest. Hart v. 10 !!m:t, 2008 Guam 11, ,38. Apportionment and apportionment method equations defme the 11 community's interest in the mixed property. ld. A trial court, when dissolving a marriage, 12
13 determines what property is separate or community property. ld. at ,24.
14 Under Guam law, community property is different than community debt. 15 compare 19 GCA § 6101 with 19 GCA § 6102. Loans acquired during a marriage constitute 16 community debt. Community debt is "debt contracted or incurred by either or both spouses 17 which is not separate debt." 19 GCA § 6102 (b). The method of using capital appreciation and 18
19 equity best credits the amount given from separate property for the original contribution, and
20 best credits the role the original separate asset played in creating the equity in the home/real 21 property. Inre Marriage ofMoore, 28 Cal.3d 366,374 (Sup.Ct.Cal.l980). 22 1. ARIZONA TOWNHOUSE 23
24 The Arizona Townhouse located at 9705 E Mountain View #1164 was purchased
25 before the marriage for $172, 000.00. Plaintiff testified that approximately two (2) months 26 after the parties were married a transfer of title was executed effectively adding both spouses to 27 the title to the Arizona Townhouse. A Warranty Deed designates the Arizona Townhouse as 28
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Community Property with Right of Survivorship.. At the time of separation approximately
2 $90,000.00 was still owed on the property. As of January 16, 2012, the estimated value of the
3 Arizona Townhouse was purported to be $240,000.00. 4 Assuming that the value of the property at the time of separation was 5 substantially similar to the cunent January 16, 2012 value, the equity in the horne owned by the 6 community is approximately $150,000.00. The Court finds that the parties each own a 50% 7
8 interest in the homes equity. Should the value at the time of separation be as it was on January
9 16, 2012, then each party shall be entitled to $75,000.00 each. Due to the Court's finding that 10 extreme cruelty on the part of the Plaintiff forms a basis for the dissolution, the Court will order 11 that the Defendant is entitled to all the equity interest in the Arizona Townhouse. 12
13 2. ARIZONA LAKE HOUSE
14 The Guam Supreme Court has held that when husband and wife take title as joint
15 tenants an inference of a gift of the funds used to acquire the property arises. Babauta v. 16 Babaut1!, Guam, 2011 Guam 15, ~25. This presumption may be rebutted. Id. Tracing alone to 17 separate property funds is not sufficient in and of itself to rebut this presumption. Id. 18
19 Defendant seeks reimbursement for her separate property contribution to the
20 purchase of the Arizona Lake House. Defendant testified that $94,000.00 worth of proceeds 21 from the sale of her pre-existing Minnesota horne went to the purchase of the Arizona Lake 22 House. Although there is an inference or presumption that separate property contributions are 23 gifts to the community, Defendant's testimony established the contrary intent that her 24
25 $94,000.00 was a gift. Defendant explained that the parties had agreed to sell their pre-existing
26 homes. Defendant sold her horne and availed the community of a tax exchange to convert the 27 proceeds of sale to a down payment on the Lake House. Although Defendant's name was 28
Page 19 of24 nclusions ofl w C eNo. D 0207-10
ub qu ntly Ia n the __title .of the Plaintiff's Townhouse, the Plaintif:l: l!~ver solq __bj~ __ _ . ___··-·
2 Ariz na Townhou e. Defendant testified that through ut the time the parties were together she
3 advocated for the sale of the Townhouse. Indicative of Defendant's contrary intent to gift the 4 fund is th 2009 purchase of a second Minnesota home in Northfield, Minnesota. This 2009 5 purchase evidences Defendant's desire to replace the first Minnesota home since the 6
7 expectations and considerations of its sale were never procured. These expectations were
8 testified to by Defendant during the trial. Expecting something in return is in congruent with
9 the concept of gifting. Th refore, the Court fmds that the Defendant did not intend for the 10 94,000.00 worth of eparate property proceeds to be a gift. Plaintiff has traced the contribution 11 to a separate property source and has sufficiently rebutted the presumption that the contribution 12
13 was a gift.
14 Plaintiff also made smaller contribution to the Lake House down payment 15 testifying that those funds were separate property assets. Because no evidence was presented to 16 even trace these funds let alone rebut the presumption of a gift, the Court fmds that Plaintiff 17 int nded this to be a gift. 18
19 Therefore, Defendant has offered sufficient evidence to rebut the presumption
20 that her $94,000.00 contribution subsequent to the sale of her first Minnesota home was a gift. 21 Plaintiff fails to rebut this presumption as to his contribution. The Court finds that the 22 Defendant is, at the minimum, entitled to reimbursement in the amount of her separate property 23 contribution or approximately $94,000.00. The Court further finds that based on its finding of 24
25 extreme cruelty, Defendant is also entitled to be placed back where she was prior to marriage.
26 This is that Plaintiff shall be entitled to the current value of the Minnesota home that was sold. 27 This amount is approximately $200,000.00 28
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3 3. MINNESOTA PROPERTY AND LOS OSOS, CALIFORNIA PROPERTY 4 Property held by spouses as co-tenants in joint tenancy is separate property. 19 5 G.C.A. § 6101 (a)(8); see Babauta v. Babauta, 2011 Guam 15, ~26. By taking title to the 6 residence as joint tenants, there is a rebuttable presumption that the separate property asset used 7
8 to acquire the property was a gift to the community. Babauta, 2011 Guam 15, ~26. Mere
9 tracing is not sufficient to rebut the presumption. ld. 10 The parties both testified that although both names are on the titles, Defendant 11 bears the sole responsibility of maintaining these properties. No other contribution is alleged by 12 the Plaintiff. Defendant brought the California property into the marriage. Although purchased 13
14 during the marriage, both parties assert that Defendant has paid all costs. Because the Court
15 fimls lhen:: is grounds to grant the divorce on extreme cruelty, both the Los Osos, California 16 property and the Minnesota property shall be granted to Defendant. 17 4. TIMESHARES 18
19 Both parties testified that Plaintiff would receive the Phucket, Thailand
20 Timeshare and Defendant would receive the Lake Tahoe Timeshare. 21 5. HOUSEHOLD GOODS AND PERSONAL PROPERTY 22 a. Jewelry 23 It was testified at trial by both parties that the Plaintiff gifted the jewelries 24
25 contained in the Arizona safety deposit box to the Defendant. Plaintiff testified that he was in
26 possession of the items located in the Scottsdale, Arizona Safety Deposit Box. Plaintiff 27 provided valuations. The Court finds that the Defendant is entitled to these items. They are (1) 28
Page 21 of24 Findings of Fact & Conclusions of Law Ptackv. Ptack; Domestic Case No. DM0207-l0
1 500.00 to $2,000.00); Blue Topaz Ring
2 with Pendant (Approximate Value $1,500.00 to $2,000.00); and Diamond Necklace.
3 b. Household oods 4 Testimony of the Parties alluded to the following significant pieces of household 5 goods needing to be addressed: 6 i. Plaintiff testified to the approximate valuation of the following items 7
8 to be around $5,000.00 to $6,000.00:
9 (A) Rosewood Alter Table 10 (B) Japanese Bookshelf 11 (C) Oil Painting 12 (D) Cuckoo Cl ck from Germany 13
14 11. Dining Set (Approximate Value:$3,000.00)
15 iii. Gold Embossed Cabinet (Purchased in Japan) 16 iv. Japane e Drum 17 v. Wall Divider (Purchased on Guam; Approximate Value $300.00 to 18
19 $400.00)
20 vi. German Trunk (Currently in the possession of Plaintiff) 21 vii. Leather Living Room Set (Approximate Value $2,000.00) 22 viii. English Table (Purchased in Germany) 23 ix. Black Lacquered Cabinet 24
25 At trial the parties were amicable to an equal division of said household goods.
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7. REIMBURSEMENT OF COMMUNITY FUNDS
2 Guam's community property statutes were initially modeled after California, but
3 subsequent to the 1980 revisions our laws are congruent to New Mexico. Faria v. Faria, 4 DM183-95, Decision and Order (Gatewood January 17, 1996). Under New Mexico law the 5 community is entitled to an equitable lien against separate property to the extent that the 6 community can show that its funds or labor enhanced the value of the property. Faria v. Faria, 7
8 DM183-95, Decision and Order (Gatewood January 17, 1996) (citing Martinez v. Block, 858
9 P.2d 429, 431 (N.M. App. 1993)). 10 Defendant proved during trial that most of community expenses were paid for by 11 her salary and separate property funds. Defendant also testified specifically to the parties' joint 12 income tax filings. see Ex. AA and Joint Ex. 11-18. Defendant explained that due to the 13
14 income from Plaintiffs investments the community incurred the debt to the tax agency.
15 Plaintiff availed himself of the benefits of filing joint taxes wherein the community absorbed the 16 impact of this investment income to its detriment and to the detriment of the Defendant. 17 Defendant noted on the stand that her separate rental income was used to pay monies owed to 18
19 the IRS. Thus, community and the Defendant's separate assets were used to manage and
20 maintain the growth ofthe Plaintiffs investments and funds. 21 Plaintiffs investment income during the marriage was submitted to the court 22 through testimony and exhibits. The income, profits, and gains over the course of the marriage 23 are as follow: (1) American Century Investment Account increased by $50,180.19 (Ex. JJ and 24
25 Joint Ex. 29); (2) DWS Account increased by $135.15 (Ex. KK and Joint Ex. 30); (3) E-Trade
26 Account increased by $256.28 (Ex. NN and Joint Ex. 33); (4) ING Direct "Tovvnhouse" 27 Account increased by $6,470.28 (Ex. 00 and Joint Ex. 34); (5) Vanguard Account ending in 28
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3820 increased by $26,657.82 (Ex. PP and Joint Ex. 36); and (6) Vanguard Account ending in I
2 7348 increased by $26,147.21 (Ex. PP and Joint Ex. 36). Therefore, from these accounts alone,
3 Plaintiffs investments were enhanced over the course of the marriage by at least $1 09,846.93. 4 Defendant has proven that the community and her separate asset contributions 5 have enhanced the value of Plaintiffs investment accounts. Although the Court finds that the 6 Defendant is entitled to 50% of said enhanced value or $54,923.46, because the Court finds that 7
8 the Defendant suffered extreme cruelty inflicted by the Plaintiff, Defendant shall receive the
9 entirely of the gains or $109.846.93. 10 8. REASONABLE ATTORNEYS FEES 11 Based on the Court's finding of extreme cruelty, Defendant IS entitled to 12
13 reasonable attorney's fees.
14 n(\T 15 IT IS SO ORDEREIYt\n~ October, 2013. 16
18 HONORABLE ARTHUR R. BARCINAS 19 Judge, Superior Court of Guam
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