5 IN THE SUPERIOR COURT OF GUAM 6
7 HENRY N. REYES, ) DOMESTIC CASE NO. DM0834-10 ) 8 Plaintiff, ) ) 9 ) FINDINGS OF FACT AND ) CONCLUSIONS OF LAW 10 vs. ) (Bench Trial) ) 11 ) ) 12 SOFIA B. OROPESA, ) Defendant. ) 13 )
14 -----------------------------)
15 INTRODUCTION 16 This matter carne before the Honorable Anita A. Sukola on December 15, 2011 17 December 21,2011, and December 22,2011, for a bench trial. Final arguments were schedule ~18 ~ on January 24, 2012, continued for February 15, 2012, and February 23, 2012. Attorney Ro 19 Moroni appeared on behalf of Henry N. Reyes ("Plaintiff"). Attorney Ryan F. Kaiser appeare \j 20
~ 21 on behalf of Sofia B. Oropesa ("Defendant"). Upon review of the evidence, oral and writte
\} 22 arguments, and legal authorities presented by the parties, the Court hereby issues its Findings 0 23 Fact and Conclusions of Law. 24 FINDINGS OF FACT 25 By preponderance of the evidence, the Court makes the following findings of fact: 26
27 1. Plaintiff and Defendant were married on August 15,2006, in Las Vegas, Nevada.
Reyes v. Oropesa (DM0834-1 0) Page I of 10 Findings of Fact and Conclusions of Law-Bench Trial 2. Since the marriage, Plaintiff has been a member of the United States Air Force. I 1
2 2008, Plaintiff was stationed at Andersen Air Force Base, Guam.
3 3. Since the marriage, Defendant has been a student and has not had full-time, gainfu 4 employment. 5 4. Plaintiff and Defendant purchased a home in Yigo, Guam, in August 2008. 6 parties agree that the residence is community property. They resided there togethe 7
8 until February 2011.
9 5. A timeshare in Las Vegas, Nevada known as "Tahiti Village," was purchased i 10 August 2006 and registered in the names of both parties. 11 6. Each party purchased a parcel of real estate shortly before the marriage. 12
13 parcels are as follows:
14 a. Plaintiff has the following separate property: Real property identified as Melb
15 Ranch, Lot Number 20, San Luis Valley, Colorado; 16 b. Defendant's separate property: Real property identified as 5268 S Linnet Ave 17 Tucson, Arizona. 18
19 7. Plaintiff is currently stationed in Masawa Air Force Base, Japan, where he continue
20 to reside. 21 8. A Complaint for Dissolution of Marriage was filed on December 20, 2010. 22 9. Plaintiff seeks a dissolution of the marriage on the grounds of irreconcilabl 23
differences. 24
25 10. Defendant seeks a dissolution of the marriage on the grounds of extreme cruelty an
26 willful neglect. 27
Reyes v. Oropesa (DM0834-IO) Page 2 of 10 Findings of Fact and Conclusions of Law-Bench Trial 11. The residency requirements of 19 G.C.A. § 8318 (a) are met, in that both parties wer 1
2 residents of Guam for at least ninety (90) days immediately preceding the filing of th
3 complaint. 4 12. There is one minor child of the marriage: 5 Name D.O.B. Gender 6
7 John Henry Oropesa Reyes June 10,2010 Male
9 13. The Court has jurisdiction of the child custody issues pursuant to 7 G.C.A. § 39201 10
11 (a)(1) of the Uniform Child-Custody Jurisdiction and Enforcement Act, as Guam w
12 the "home state" of the minor child on the date of the filing of this proceeding.
13 14. The Court issued an order pendente lite on February 22, 2011, awarding the partie 14 joint physical custody of the minor child wherein Defendant was to exercise he 15 physical custody of the minor child from Tuesday evening through Sunday morning 16
17 and Plaintiff was to exercise his physical custody of the minor child from Sunda
18 morning through Tuesday evening. 19 CONCLUSIONS OF LAW 20 I. GROUNDS FOR DIVORCE 21 Plaintiff seeks a dissolution of marriage on the grounds of irreconcilable differences. 22
23 Defendant counter-claims for divorce based on extreme cruelty and willful neglect. A
24 dissolution of marriage may be granted for irreconcilable differences pursuant to 19 G.C.A. § 25 8203 (g). A dissolution of marriage may also be granted for extreme cruelty and willful neglect 26 pursuant to 19 G.C.A. § 8203 (b) and (d). "Irreconcilable differences are those grounds which 27
are determined by the Court to be substantial reasons for not continuing the marriage and make 28
Reyes v. Oropesa (DM0834-1O) Page 3 of 10 Findings of Fact and Conclusions of Law-Bench Trial it appear that the marriage should be dissolved." 19 G.C.A. § 8219. "Extreme cruelty is the 1
2 wrongful infliction of grievous bodily injury, or grievous mental suffering, upon the other by
3 one party to the marriage." 19 G.C.A. § 8205. "Willful neglect is the neglect of the husband to 4 provide for his wife the common necessaries of life, he having the ability to do so; or it is the 5 failure to do so by reason of idleness, profligacy, or dissipation. 19 G.C.A. § 8216. 6 Irreconcilable differences are a common justification for dissolution pursuant to 19 7
8 G.C.A § 8203 (g). Because it appears to the Court that the marriage between Plaintiff and
9 Defendant cannot be continued, the Court grants the divorce on this ground, irreconcilable 10 differences. Notwithstanding the Court ruling on finding the dissolution of marriage based on 11 irreconcilable differences, the Court still addresses the counter claim grounds made by 12
13 Defendant.
14 As a general rule, an applicant for divorce on the ground of cruelty must establish a
15 claim by a preponderance of the evidence. Mitchell v. Mitchell, 823 So. 2d 568 (Miss. Ct. App. 16 2002). During testimony, both Plaintiff and Defendant testified that Plaintiff manifested 17 behaviors of controlling and excessive perfectionism towards the wife. Defendant testified that 18
19 Plaintiff was controlling of Defendant, that he often criticized and insulted her, and that she
20 suffered from low self-esteem and depression-like symptoms. Defendant also testified that she 21 felt that she was treated like a subordinate in the military by Plaintiff. Defendant further testified 22 that that Plaintiff would yell at her in public and that she eventually reached out to a therapist. 23 Defendant's Testimony, Transcript JDAASCRA (12121/2011) at 3:31 :33 p.m. 24
25 Conduct which merely causes embarrassment is insufficient to amount to mental cruelty.
26 Matthews v. Matthews, 36 Ill.App.3d 508, 511, 344 N.E.2d 21 (1976). Cruelty is not 27 established by mere conclusions of the witness or general statements to the effect that the 28
Reyes v. Oropesa (OM0834-1O) Page 4 of 10 Findings of Fact and Conclusions of Law-Bench Trial defendant has mistreated the plaintiff or that they cannot live together. In re Marriage of 1
2 Semmler, 90 Ill. App. 3d 649, 46 Ill. Dec. 62,413 N.E.2d 502 (2d Dist. 1980). Something more
3 than unkindness, rudeness, mere incompatibility, or want of affection must be shown. Sproles v. 4 Sproles, 782 So. 2d 742 (Miss. 2001). 5 The Court finds that the facts of the case do not rise to render Defendant's counter claim 6
of extreme cruelty. 7
8 The Court finds no factual basis for the claim of willful neglect and for that reason,
9 holds that willful neglect would not be grounds for dissolution either. 10 II. REAL PROPERTY 11 Plaintiff and Defendant represented that there are separate and community interests with 12 respect to real property. Characterization of property in a marital dissolution action is the 13
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5 IN THE SUPERIOR COURT OF GUAM 6
7 HENRY N. REYES, ) DOMESTIC CASE NO. DM0834-10 ) 8 Plaintiff, ) ) 9 ) FINDINGS OF FACT AND ) CONCLUSIONS OF LAW 10 vs. ) (Bench Trial) ) 11 ) ) 12 SOFIA B. OROPESA, ) Defendant. ) 13 )
14 -----------------------------)
15 INTRODUCTION 16 This matter carne before the Honorable Anita A. Sukola on December 15, 2011 17 December 21,2011, and December 22,2011, for a bench trial. Final arguments were schedule ~18 ~ on January 24, 2012, continued for February 15, 2012, and February 23, 2012. Attorney Ro 19 Moroni appeared on behalf of Henry N. Reyes ("Plaintiff"). Attorney Ryan F. Kaiser appeare \j 20
~ 21 on behalf of Sofia B. Oropesa ("Defendant"). Upon review of the evidence, oral and writte
\} 22 arguments, and legal authorities presented by the parties, the Court hereby issues its Findings 0 23 Fact and Conclusions of Law. 24 FINDINGS OF FACT 25 By preponderance of the evidence, the Court makes the following findings of fact: 26
27 1. Plaintiff and Defendant were married on August 15,2006, in Las Vegas, Nevada.
Reyes v. Oropesa (DM0834-1 0) Page I of 10 Findings of Fact and Conclusions of Law-Bench Trial 2. Since the marriage, Plaintiff has been a member of the United States Air Force. I 1
2 2008, Plaintiff was stationed at Andersen Air Force Base, Guam.
3 3. Since the marriage, Defendant has been a student and has not had full-time, gainfu 4 employment. 5 4. Plaintiff and Defendant purchased a home in Yigo, Guam, in August 2008. 6 parties agree that the residence is community property. They resided there togethe 7
8 until February 2011.
9 5. A timeshare in Las Vegas, Nevada known as "Tahiti Village," was purchased i 10 August 2006 and registered in the names of both parties. 11 6. Each party purchased a parcel of real estate shortly before the marriage. 12
13 parcels are as follows:
14 a. Plaintiff has the following separate property: Real property identified as Melb
15 Ranch, Lot Number 20, San Luis Valley, Colorado; 16 b. Defendant's separate property: Real property identified as 5268 S Linnet Ave 17 Tucson, Arizona. 18
19 7. Plaintiff is currently stationed in Masawa Air Force Base, Japan, where he continue
20 to reside. 21 8. A Complaint for Dissolution of Marriage was filed on December 20, 2010. 22 9. Plaintiff seeks a dissolution of the marriage on the grounds of irreconcilabl 23
differences. 24
25 10. Defendant seeks a dissolution of the marriage on the grounds of extreme cruelty an
26 willful neglect. 27
Reyes v. Oropesa (DM0834-IO) Page 2 of 10 Findings of Fact and Conclusions of Law-Bench Trial 11. The residency requirements of 19 G.C.A. § 8318 (a) are met, in that both parties wer 1
2 residents of Guam for at least ninety (90) days immediately preceding the filing of th
3 complaint. 4 12. There is one minor child of the marriage: 5 Name D.O.B. Gender 6
7 John Henry Oropesa Reyes June 10,2010 Male
9 13. The Court has jurisdiction of the child custody issues pursuant to 7 G.C.A. § 39201 10
11 (a)(1) of the Uniform Child-Custody Jurisdiction and Enforcement Act, as Guam w
12 the "home state" of the minor child on the date of the filing of this proceeding.
13 14. The Court issued an order pendente lite on February 22, 2011, awarding the partie 14 joint physical custody of the minor child wherein Defendant was to exercise he 15 physical custody of the minor child from Tuesday evening through Sunday morning 16
17 and Plaintiff was to exercise his physical custody of the minor child from Sunda
18 morning through Tuesday evening. 19 CONCLUSIONS OF LAW 20 I. GROUNDS FOR DIVORCE 21 Plaintiff seeks a dissolution of marriage on the grounds of irreconcilable differences. 22
23 Defendant counter-claims for divorce based on extreme cruelty and willful neglect. A
24 dissolution of marriage may be granted for irreconcilable differences pursuant to 19 G.C.A. § 25 8203 (g). A dissolution of marriage may also be granted for extreme cruelty and willful neglect 26 pursuant to 19 G.C.A. § 8203 (b) and (d). "Irreconcilable differences are those grounds which 27
are determined by the Court to be substantial reasons for not continuing the marriage and make 28
Reyes v. Oropesa (DM0834-1O) Page 3 of 10 Findings of Fact and Conclusions of Law-Bench Trial it appear that the marriage should be dissolved." 19 G.C.A. § 8219. "Extreme cruelty is the 1
2 wrongful infliction of grievous bodily injury, or grievous mental suffering, upon the other by
3 one party to the marriage." 19 G.C.A. § 8205. "Willful neglect is the neglect of the husband to 4 provide for his wife the common necessaries of life, he having the ability to do so; or it is the 5 failure to do so by reason of idleness, profligacy, or dissipation. 19 G.C.A. § 8216. 6 Irreconcilable differences are a common justification for dissolution pursuant to 19 7
8 G.C.A § 8203 (g). Because it appears to the Court that the marriage between Plaintiff and
9 Defendant cannot be continued, the Court grants the divorce on this ground, irreconcilable 10 differences. Notwithstanding the Court ruling on finding the dissolution of marriage based on 11 irreconcilable differences, the Court still addresses the counter claim grounds made by 12
13 Defendant.
14 As a general rule, an applicant for divorce on the ground of cruelty must establish a
15 claim by a preponderance of the evidence. Mitchell v. Mitchell, 823 So. 2d 568 (Miss. Ct. App. 16 2002). During testimony, both Plaintiff and Defendant testified that Plaintiff manifested 17 behaviors of controlling and excessive perfectionism towards the wife. Defendant testified that 18
19 Plaintiff was controlling of Defendant, that he often criticized and insulted her, and that she
20 suffered from low self-esteem and depression-like symptoms. Defendant also testified that she 21 felt that she was treated like a subordinate in the military by Plaintiff. Defendant further testified 22 that that Plaintiff would yell at her in public and that she eventually reached out to a therapist. 23 Defendant's Testimony, Transcript JDAASCRA (12121/2011) at 3:31 :33 p.m. 24
25 Conduct which merely causes embarrassment is insufficient to amount to mental cruelty.
26 Matthews v. Matthews, 36 Ill.App.3d 508, 511, 344 N.E.2d 21 (1976). Cruelty is not 27 established by mere conclusions of the witness or general statements to the effect that the 28
Reyes v. Oropesa (OM0834-1O) Page 4 of 10 Findings of Fact and Conclusions of Law-Bench Trial defendant has mistreated the plaintiff or that they cannot live together. In re Marriage of 1
2 Semmler, 90 Ill. App. 3d 649, 46 Ill. Dec. 62,413 N.E.2d 502 (2d Dist. 1980). Something more
3 than unkindness, rudeness, mere incompatibility, or want of affection must be shown. Sproles v. 4 Sproles, 782 So. 2d 742 (Miss. 2001). 5 The Court finds that the facts of the case do not rise to render Defendant's counter claim 6
of extreme cruelty. 7
8 The Court finds no factual basis for the claim of willful neglect and for that reason,
9 holds that willful neglect would not be grounds for dissolution either. 10 II. REAL PROPERTY 11 Plaintiff and Defendant represented that there are separate and community interests with 12 respect to real property. Characterization of property in a marital dissolution action is the 13
14 determination by the trial court of what property owned by the parties is separate or community
15 Apportionment is used "[w]hen a trial court property. Hart v. Hart, 2008 Guam 11 ~24. 16 concludes that property contains both separate and community interests." Hart, 2008 Guam 11 ~ 17 38. Separate property is property acquired by either spouse before the marriage or after entry of 18
19 a decree of dissolution of marriage. 19 G.C.A. § 6101 (a)(1). Community property is property
20 acquired by either spouse during the marriage which is not separate property. 19 G.C.A. § 6101 21 (b). Moreover, "property acquired during marriage by either husband or wife .. .is presumed to 22 be community property." BIas v. Cruz, 2009 Guam 12 ~ 23. 23 The Court granting the dissolution of marriage on the ground of irreconcilable 24
25 differences is to distribute community property, equally, divided between the parties. 19
26 G.C.A. § 8411 (b). 27 1. Marital Home 28
Reyes v. Oropesa (DM0834-1O) Page 5 of 10 Findings of Fact and Conclusions of Law-Bench Trial The Court detennines that the marital home is community property pursuant to 19 1
2 G.C.A. § 6101 (b). Upon arriving to Guam, the Parties purchased the marital home, located at
3 246 I Chalan Tan Kai Anaco, Lot 7006-16-R4, Yigo, Guam to serve as the primary residence of 4 the marriage. Both Plaintiff and Defendant testified that they expect the property to be sold. 5 Therefore, the Court orders that the marital home be sold, that the money received from the sale 6 be used to payoff the mortgage debt, and that the remaining proceeds shall be divided equally 7
8 between the parties. Prior to the sale of the marital home, Defendant must restore or replace the
9 air conditioners and other items she removed from the home. If she is unable to do this, 10 Plaintiff may purchase replacement items to make the house suitable for sale. If Plaintiff does 11 so, he will be reimbursed for the cost of such items from the sale proceeds. Plaintiff should also 12 continue to make the mortgage and other payments until a sale is fmalized and would be 13
14 reimbursed from the date of separation. 15 2. Las Vegas, Nevada Time Share 16 The Court detennines that the Las Vegas, Nevada time share, also known as "Tahiti 17 Village," is community property. It was purchased on the day the parties were married. Both 18
19 Plaintiff and Defendant confinned that this was community property. Additionally, both
20 Plaintiff and Defendant expressed the intention that Defendant would receive this property. 21 Therefore, Defendant is awarded the Las Vegas, Nevada "Tahiti Village" timeshare. Plaintiff 22 will execute any and all documents pertaining to the Tahiti Village Time Share. 23 3. Melby Ranch, Colorado 24
25 The Court detennines that the Melby Ranch property in San Luis Valley, Colorado
26 contains both separate and community interests. Plaintiff purchased this property in September 27 2005, approximately ten months prior to the marriage of the parties. Plaintiff testified that he 28
Reyes v. Oropesa (DM0834- 10) Page 6 of 10 Findings of Fact and Conclusions of Law-Bench Trial was able to pay the balance of the property during the mamage usmg marital mcome. 1
2 Therefore, Plaintiff is awarded this property as his separate property.
3 4. Arizona Property 4 The Court determines that the Arizona property identified as 5268 S Linnet Ave in 5 Tucson, Arizona is Defendant's separate property. Defendant testified that while plaintiff was 6 stationed overseas, she used community income in the form of monthly BAH allowance to pay 7
8 the mortgage of the horne. Defendant also testified that the mortgage remains and is being paid
9 by renters who currently reside on the property. Defendant receives no income form this 10 property. Defendant is awarded the Tucson, Arizona property as her separate property and she 11 shall be held solely responsible for the mortgage debt thereof. 12
13 III. RETIREMENT EARNINGS
14 The Court has jurisdiction to treat military retirement pay in accordance with Guam's
15 community property laws. Hart, 2008 Guam 11 ~ 17. As a community property asset, the right 16 to military retirement benefits is a property interest that may be characterized as community 17 property under 19 G.C.A. § 6101 and divided in the dissolution ofa marriage under 19 G.C.A § 18
19 8411. Hart, 2008 Guam 11 ~ 26. In apportioning Plaintiff and Defendant's community
20 property interest in the military retirement benefit, the Court will use the time rule. Under the 21 time rule method of apportionment, "the community property interest in retirement benefits is 22 the percentage representing the fraction whose numerator is the employee spouse's length of 23 service during marriage before separation ... and whose denominator is the employee spouse's 24
25 length of service in total." Hart, 2008 Guam 11 ~ 42. Accordingly, the following calculation is
26 appropriate in the instant case: 27 Plaintiff's disposable military retirement pay shall be computed by multiplying 28 50% times a fraction, the numerator of which is months of marriage during
Reyes v. Oropesa(DM0834-10) Page 7 of 10 Findings of Fact and Conclusions of Law-Bench Trial Plaintiff's creditable military service (50 months), divided by his total months of 1 creditable military service. 2 Therefore, upon Plaintiff's retirement from the military, Defendant shall receive a 3 portion of Plaintiff's military retirement benefits in accordance with the above-stated 4
5 formula.
6 IV. CIDLD CUSTODY & CHILD SUPPORT 7 Under Guam law, there is a preference for both joint legal and joint physical custody 8 arrangements. Howerton v. Howerton, 2004 Guam 8 ~ 14. The preference for either type of 9 joint custody, however, "is always secondary to the best interests of the child." Id. (citing Flores 10
11 v. Cruz, 1998 Guam 30 ~ 12). Joint physical custody does not require that each parent have
12 equal time with the child. Lanser v. Lanser, 2003 Guam 14 ~ 13. 13 In the instant case, the child is under two years of age. On account of this, the Court 14 grants joint legal and physical custody of John Henry Oropesa Reyes (DOB: 6/10/2010) to the 15
16 Plaintiff and Defendant, with primary physical custody awarded to Defendant until the child
17 reaches the age of five (5), wherein the Court where the child resides shall reevaluate the
18 custody issue. In the meantime, Plaintiff shall receive liberal visitations with the minor child 19 when he is present on Guam. In addition, Plaintiff shall be afforded physical custody for a three 20 (3) month period annually until the Court reevaluates the custody issue when the child reaches 21
22 five (5) years of age. Plaintiff shall pay Defendant child support in the amount determined by
23 the Child Support Referee, pursuant to the Guam Child Support Guidelines. See Richardson v. 24 ,Richardson, 2010 Guam 14 ~ 13. Plaintiff's payments of child support will be abated for a three 25 (3) month period whenever he has custody of the child on an annual basis. PlaintiffwiII pay for 26 minor's transportation cost to and from each visitation period until custody is re-determined. 27
Reyes v. Oropesa (DM0834-l 0) Page 8 of \0 Findings of Fact and Conclusions of Law-Bench Trial The Court finds that the parties recogmze that frequent and continuing association 1
2 between themselves and their child is in the best interests of the child, and they will work
3 cooperatively toward that end. Each party shall have the right to communicate with the child 4 while he is with the other party. This communication shall be reasonable, but otherwise without 5 restrictions unless agreed to by the parties. Specifically, the child shall be allowed reasonable 6 and private communication by telephone, email, Skype, and other available computer and 7
8 electronic means, with a parent when he is absent from that parent.
9 V. TEMPORARY SPOUSAL SUPPORT 10 Plaintiff shall continue to pay Defendant spousal support in the amount of Five Hundred 11 Dollars ($500) for twelve (12) months, terminating on January 31, 2013. 12
13 VI. PERSONAL PROPERTY
14 The Parties' 2005 Nissan Sentra is assigned to Defendant at the value of Five Thousand
15 Dollars ($5,000). Any personal property bought during the marriage which cannot be equitably 16 distributed by the parties is hereby ordered to be sold within sixty (60) days and the proceeds 17 shall be equally distributed between the parties. 18
19 CONCLUSION
20 By preponderance of the evidence and based on the foregoing reasons, the Court finds 21 the following: 22 1. Upon Plaintiffs request, a divorce is granted in favor of Plaintiff based upon 23 irreconcilable differences. 24
25 2. The marital home in Yigo, Guam is community property. The property shall be sold
26 with money earned to be used to satisfy the community mortgage debt obligation. 27 The remaining proceeds shall be distributed equally between the parties. 28
Reyes v. Oropesa (DM0834-1O) Page 9 of 10 Findings of Fact and Conclusions of Law-Bench Trial 3. The Las Vegas, Nevada timeshare, is awarded to Defendant. 1
2 4. The Colorado property shall be awarded to Plaintiff.
3 5. The Arizona home is Defendant's separate property and awarded to her. 4 6. Personal property bought during the marriage which cannot be equitably distributed 5 by the parties shall be sold within sixty (60) days and the proceeds shall be equally 6 distributed between Plaintiff and Defendant. 7
8 7. The Court determines that it is in the best interest of the child that the parties share
9 joint legal and physical custody, with primary physical custody awarded to 10 Defendant, until custody issues are reevaluated when the minor child reaches the age 11 of five (5). 12 8. Plaintiff shall pay Defendant child support as determined by the Child Support 13
14 Referee. 15 9. Plaintiff shall continue to pay Defendant temporary spousal support until January 31, 16 2013. 17 10. The Court fmds that Defendant is entitled to military retirement benefits calculated 18
19 pursuant to the formula herein.
22 SO ORDERED this S- day of A,/: , /,2012.
23 I do hereby certify that the foregoing 24 Is a fuU true and correct copy of the original on file In the office of the cIeti( 01 the SUperior Court of Guam 25 .~
26 AP~9 Z01Z 7' ,
Ama~. Qultorlano 27 HONORABLE ANITA A. SUKOLA Judge, Superior Court of Guam 28 Deputy CIert, Superior Court 01 au.n
Reyes v. Oropesa (DM0834-1 0) Page \0 of \0 Findings of Fact and Con elusions of Law-Bench Trial