Sellman v. Sellman

Opinion

IN THE SUPERIOR COURT OF GUAM 2

3 RONI S. SELLMAN, ) Domestic Case no. OM Q$Q2;-02, J\ U '~L,;;

4 ) Plaintiff, ) 5 ) v. ) 6 DECISION AND ORDER ) re: Motion for Contempt 7 JAMES D. SELLMAN, ) ) 8 ) Defendant. 9

\0 INTRODUCTION 11 This matter came before the Honorable Judge Michael J. Bordallo on May 18, 2012. 12 The Plaintiff was represented by Attorney Thomas J. Fisher. The Defendant was represented by 13 Attorney Daniel S. Somerfleck. After considering the matter presented, the 14

15 Court issues the following decision and order granting Defendant's motion for contempt.

16 BACKGROUND 17 The instant action arises out of a complaint for legal separation, which was filed by 18 Plaintiff on December 4,2009. Defendant filed his answer to the complaint and a counterclaim 19 for divorce on December 28, 2009. The Court scheduled trial to start on April 19,2010. Prior to 20

21 trial, however, Plaintiffs counsel at the time withdrew from representing the Plaintiff. Trial

22 was thus postponed to give Plaintiff the opportunity to obtain new counsel. 23 The parties have continuously appeared before the Court for hearings and new trial 24 dates set. Each time, the plaintiff has requested a continuance either because it conflicted with 25 medical appointments or she was unavailable. Trial has been set no less than four times and 26

27 each time, plaintiff requested a continuance. Defendant sought to dismiss the Plaintiff s

28 Complaint for Separation and enter judgment for Divorce on May 12, 2011 and once again,

Page 1 of4 plaintiff requested a continuance. The matter was reset to June 2, 2011 and the plaintiff, after 2 filing yet another Motion to Continue the hearing on May 23, 2011, failed to show. As shown 3 in her May 23, 2011 Motion to Continue, the plaintiff had notice of the June 2, 2011 hearing. 4 The Court granted Defendant's request and entered judgment in favor of Defendant for a 5

6 divorce. On July 7, 2011, the Court issued a final decree of divorce.

7 DISCUSSION 8 The Guam Supreme Court re-affirmed the elements that a court is to consider when it 9 determines whether a party in a civil action has acted in contempt of one of its orders. Lamb v. 10 Hoffman, 2008 Guam 2 § 44. These elements are: "1) a valid order, 2) knowledge of the order, 11

12 3) ability to comply with the order, and 4) willful failure to comply with the order." Id. The

13 Hoffman court explained that in a civil action like divorce Guam's contempt statute provides

14 that "Any person found guilty of a contempt of court pursuant to § 341 02(b) is subject to the 15 same penalties as a person found guilty of a petty misdemeanor." Id., citing, 7 GCA § 16 34101(b). The court further explained that, Section 80.34 of Title 9 of the Guam Code provides 17

18 that if convicted of a petty misdemeanor, "the court shall set a definite term not to exceed sixty

19 (60) days." 9 GCA § 80.34(b). 20 The Guam Supreme Court has not determined what a proponent's burden of proof is in 21 a civil contempt action. However, a quick review of the Federal Circuit courts reveals that they 22 generally have held that, "the moving party has the initial burden of proving, by clear and 23 convincing evidence, that a valid court order existed, that the defendant had knowledge of the 24

25 order, and that the defendant disobeyed the order." Us. v. Ford, 514 F.3d 1047 1051, (lOth

26 Cir. 2008); Us. v. Saccoccia, 354 F.3d 9, 14 (1st Cir. 2003)(in a civil contempt proceeding, 27 clear and convincing evidence would be required); Levin v. Tiber Holding Corp., 277 F.3d 243, 28 250 (2d Cir. 2002)(In the context of civil contempt, the clear and convincing standard requires

Page 2 of4 a quantum of proof adequate to demonstrate a "reasonable certainty" that a violation occurred). 2 A non-moving party in a civil contempt proceeding as an affirmative defense may assert a 3 present inability to comply with the order in question. us. v. Rylander, 460 U.S. 752, 757 4 (1983). The US Supreme Court has held that, "[w]hile the court is bound by the enforcement 5

6 order, it will not be blind to evidence that compliance is now factually impossible." Id. The

7 Guam Supreme Court in 2003 held that the affirmative defense of inability to comply must be 8 proven by a preponderance of the evidence. Rodriguez v. Rodriguez, 2003 Guam 8, ~ 18. 9 Plaintiff submits she had no adequate notice that the hearing held on June 2, 2012 was 10 to determine a resolution of Defendant's counterclaim. She was not noticed of the action 11

12 against which she was to defend. "Notice and opportunity to be heard are requisites of the

13 constitutional guarantee of due process" Mullance v. Central Hanover Bank & Trust Co., 339 14 U.S. 306, (1950). On May 23, 2011 Plaintiff submitted a Motion to Re-Schedule the Hearing 15 on June 2, 2012. The Court finds this document as sufficient evidence Plaintiff did have notice 16 of the hearing. With notice, Plaintiff could have easily inquired further as to the action which 17

18 she was to defend through email or phone. This Court finds Plaintiff did have notice.

19 This Court is well informed of Plaintiffs financial situation and work schedule.

20 However, it is not the responsibility or the duty of the Court to cater to Plaintiffs convenience. 21 While the Court is sympathetic towards the Plaintiffs situation, it appears that this is not the 22 first time Plaintiff has requested to re-schedule hearings. From the beginning, and especially 23 after the Court granted temporary spousal support, it is evident the plaintiff has continuously 24

25 sought to extend this matter as long as possible.

26 On May 20, November 15, and December 2 of 2010, the Court postponed and/or 27 continued the trial due to Plaintiff s lack of representation. On December 16, the Court received 28 a request to reschedule trial hearings on January 25 and February 7 due to conflicts with work

Page 3 of4 schedule. Plaintiff was then off island from December 18 till January 16, 2011 for medical 2 consultation and missed the hearing on February 2, 2011. On February 4, 2011 Plaintiff again 3 request for rescheduling of the hearing due to medical consultations and failed to appear at the 4 February 8 2011 hearing. This Court finds a pattern by the Plaintiff, due to no fault of the 5

6 Defendant, of not showing up to hearings and re-scheduling to the Plaintiff s convenience.

7 Defendant submits Plaintiff knew of the hearing and willfully failed to comply with the 8 orders set forth in the Final Decree of Divorce on July 7, 2011. Plaintiff has taken the parties 9 tax return, failed to engage in the sale of the property, and failed to make payment on 10 community debt. This Court agrees and holds Plaintiff in Contempt. 11

13 CONCLUSION 14 Based on the foregoing, the Court GRANTS Defendant's Motion for Contempt. A 15

16 hearing for sanctions shall be heard on November 5 ,2012, at _ _ _--"- -- 17

18 SO ORDERED, this L day of ~ 2012.

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