Taylor v. Cruz

Opinion

StJP E , uT 0 F GUAM l31B JAN 29 PM 2=

C~OUR 2

6 IN THE SUPERIOR COURT OF GUAM

7 JOSEFA M.A. CRUZ nka JOSEFAM. ) Case No. DM0277-14 8 TAYLOR, ) ) 9 ) Plaintiff, ) FINDINGS OF FACT AND 10 ) CONCLUSIONS OF LAW vs. ) II ) ) 12 ALAN CODIE B. CRUZ, ) ) 13 ) ) 14 Defendant, ) ) 15 _____________________________) 16 INTRODUCTION 17 This matter came before the Honorable Alberto C. Lamorena, III on October 2 and 18 October 6, 2017 for an evidentiary hearing 1 concerning custody of the parties' minor child, 19 A.R.C. (DOB: 10/11/2013). Plaintiff Josefa M.A. Taylor2 ("Plaintiff' or "Mrs. Taylor") is 20 represented by Attorney Daniel S. Somerfleck and Defendant Alan Codie B. Cruz ("Defendant" 21 or "Mr. Cruz") is represented by Attorney Joaquin C. Arriola, Jr. Having duly considered the 22 parties' arguments and oral testimony, evidence received by the Court, and applicable law, the 23 Court hereby issues the following Findings of Fact and Conclusions of Law ("Findings"). 24

26 1 27 The Court held the evidentiary hearing to receive evidence concerning Plaintiff's Motion to Modify Custody, which was filed on June 8, 2017. 2 28 Plaintiff was not physically present at the hearing, but appeared and provided testimony via teleconference.

ORIGINAL Findings of Fact and Conclusions of Law DM0277-14, Cruz v. Cruz

FINDINGS OF FACT 3 By a preponderance of the evidence, the Court makes the following findings of fact: 2 A. Plaintiff and Defendant were in a marriage that produced one (1) minor child, A.R.C. 3 (DOB: 10111/2013). The minor child has been a resident of Guam since her birth. 4 B. On May 7, 2014, Plaintiff filed a Complaint for Divorce ("Complaint") asking the Court 5 to grant the parties, inter alia, joint legal custody over A.R.C. with Plaintiff having 6 primary physical custody. Thereafter, the Court ordered that a custody study be 7 completed by the Department of Public Health and Social Services ("DPHSS"). 8 C. The Custody Study, which was submitted to the Court on September 2, 2014, 9 recommended that the parties share joint legal and physical custody "as they have 10 equally demonstrated responsibility in their parental roles." (Custody Study at 20, Sep. 11 2, 2014.) 12 D. Following the release of the Custody Study, the Complaint was resolved via a Divorce 13 and Property Settlement Agreement ("Settlement Agreement") - the terms of which 14 were attached and fully incorporated into the Interlocutory Judgment of Divorce. (See 15 Interlocutory Judgment of Divorce at Attachment (Divorce and Property Settlement 16 Agreement), Apr. 1, 2015.) 17 E. The marriage between the parties was dissolved on March 30, 2015. (See Final Decree 18 of Divorce, Apr.1, 2015.) 19 F. Pursuant to the Settlement Agreement, Plaintiff and Defendant agreed to share joint 20 legal and physical custody of A.R.C., with the parties exchanging physical custody on an 21 alternating weekly basis. (See Interlocutory Judgment of Divorce at Attachment 22 (Divorce and Property Settlement Agreement at 2), Apr. 1, 2015.) The agreement, 23 however, did not contemplate a custody arrangement were the parties to reside in 24

separate jurisdictions. 25

27 3 28 Placement of a fact under a particular section herein is not controlling; a finding of fact may state legal conclusions and a conclusion of law may include statements of fact.

Page 2 of9 Findings of Fact and Conclusions of Law DM0277-14, Cruz v. Cruz

G. Following the divorce, the parties shared custody on an alternating weekly basis pursuant to the Settlement Agreement. 2 H. In August 2016, Plaintiff began a relationship with Charles Taylor, Jr. ("Mr. Taylor"), 3 later becoming engaged and pregnant with his child. 4 I. On June 8, 2017, Plaintiff filed a Motion to Modify Custody. In her motion, Plaintiff 5 requested that she be granted permission to relocate A.R.C. from this jurisdiction so that 6 she could join her in South Dakota where her partner resides and is employed. 7 J. Plaintiff and A.R.C. left Guam in June 2017, after the parties reached an agreement that 8 allowed A.R.C. to spend six (6) weeks in the mainland United States. 9 K. In July 2017, Plaintiff married Mr. Taylor. The following month, she joined him in 10

South Dakota. 11 L. A.R.C. returned to Guam in August 2017 with her maternal grandmother. Since her 12 return, the parties agreed to an arrangement whereby A.R.C.'s maternal grandmother 13 and Defendant would share custody on an alternating weekly basis pending the outcome 14 ofthe Court's decision on the Motion to Modify Custody. 15 M. Defendant enrolled A.R.C. in the pre-kindergarten program at Mount Carmel Catholic 16 School upon her return to Guam from the United States. She previously attended Mercy 17 Heights since the age of two. 18 N. Plaintiff seeks alternating physical custody of A.R.C. every six months between Guam 19 and South Dakota until the child reaches school age. After such time, Plaintiff seeks to 20 have physical custody of A.R.C. during the school year with Defendant having 21 reasonable summer visitation. 22 0. Defendant opposes A.R.C.'s relocation to South Dakota and requests that the child be 23 allowed to continue and complete pre-kindergarten on Guam under his custody. Once 24 A.R.C. reaches school age, Defendant seeks to have physical custody during the school 25 year with Plaintiff having custody during summer and Christmas breaks. 26 P. Defendant is currently employed full-time with DZSP, while Plaintiff is unemployed. 27 Plaintiff's husband, however, receives income and benefits resulting from his 28 employment at Ellsworth Air Force Base with the United States Air Force. Page 3 of9 Findings of Fact and Conclusions of Law DM0277-14, Cruz v. Cruz

Q. Both parties reside in separate residences sufficient enough to adequately accommodate the needs of A.R.C. 2 R. A.R.C. has numerous family relationships on Guam, including siblings, both of her 3 maternal and paternal grandparents, and extended family members. 4 S. Both parties have moved on to form relationships with other individuals, each producing 5 other children who are the half-siblings of A.R.C. 6 T. The partners of both Plaintiff and Defendant have formed bonds with A.R.C. and are 7 involved with caring for her needs while she is with the respective custodial parent. 8 U. Both parties are fit parents with sufficient ability, time, and temperament to adequately 9 care for the moral, physical, mental, and educational needs of A.R.C. 10 V. A.R.C. has a positive and loving relationship with Plaintiff and Defendant. 11 CONCLUSIONS OF LAW 12 The court now issues the following conclusions of law on the matter: 13 1. When there is "at issue a dispute as to the custody of a minor child, the court may, 14 during the minority of the child, make such order for the custody of such minor child as 15 may seem necessary or proper." 19 G.C.A. § 8404. 16 2. In determining what is necessary or proper, the Court considers, first and foremost, "the 17 best interest of the child," and also evidence relevant to various factors enumerated in 19 18 G.C.A. § 8404(a)(8). See Howerton v. Howerton, 2004 Guam 8

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other matters of major significant concerning the child's life and welfare," and physical custody as, "the right and obligation to provide a home for the child and to make the 2 day-to-day decisions required during the time the child is actually with the parent having 3 custody." Id. at'l{'l{ 12-13 (citations omitted). 4 5. As noted by the Supreme Court, however, "[j]oint custody ... does not require that each 5 parent have equal time with the child." Lanser, 2003 Guam 14 'li 13; see also 19 G.C.A. 6 § 8404(a)(8) (Equal visitation time is preferred on the condition that, inter alia, the 7 "proposed visitation is not found by the court, on evidence presented, to be injurious to 8 the welfare of the child."). Although equal time between parents is the preferred 9 arrangement when awarding joint physical custody, "the preference for equal time is [] 10 secondary to the best interests of the child." Howerton, 2004 Guam 8 'li 20. 11 6. Furthermore, in circumstances involving modifications of an existing child custody 12 arrangement, there must "generally be a pervasive showing of changed circumstances 13 affecting the child." 4 Lanser, 2003 Guam 14, n. 2 (citing In ReMarriage of Carney, 598 14 P.2d 36, 38 (Cal. 1979); see also Quenga v. Roberto, Case No. DM0610-13, Decision & 15 Order on Motion to Modify Custody (March 30, 2006) (applying "changed 16 circumstances" standard). The changed circumstances must be substantial such that 17 custody will not be disturbed "unless the material facts and circumstances occurring 18 subsequently are of a kind to render it essential or expedient for the welfare of the child 19 that there be a change." In ReMarriage of Carney, 598 P.2d at 38. 20 7. Based on Mrs. Taylor's relocation to South Dakota, it is clear to the Court that changed 21 circumstances exists warranting modification of the existing child custody arrangement, 22 as contained in the Settlement Agreement. 23

25 4 26 The changed circumstances rule, as adopted in Lanser, "is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it has been 27 established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine the question. Instead, it should preserve the established mode of custody unless some 28 significant change in circumstances indicates that a different arrangement would be in the child's best interest." Montenegro v. Diaz, 27 P.3d 289,294 (Cal. 2001). Page 5 of9 Findings of Fact and Conclusions of Law DM0277-14, Cruz v. Cruz

8. In applying the standards described in 19 G.C.A. § 8404 and in Howerton, the Court finds no significant reason that would justify deviating from the general preference for 2 joint physical and legal custody, with an equal time arrangement, while the Parties are 3 living in the same jurisdiction. As determined by this Court, both Mrs. Taylor and Mr. 4 Cruz are fit parents with sufficient ability, time, and temperament to adequately care for 5 the moral, physical, mental, and educational needs of A.R.C. Furthermore, A.R.C. has a 6 positive relationship with the parties. An equal time arrangement, while the parties are in 7 the same jurisdiction, would allow the minor child to have a balance of educational and 8 family time with both parents. It would also allow the child to maintain significant and 9 important bonds with the parties and their extended families. Accordingly, the parties 10 should be allowed an equal custodial time arrangement over A.R.C. on an alternating 11 weekly basis while they are living in the same jurisdiction. 12 9. As Mrs. Taylor and Mr. Cruz reside in separate jurisdictions, the Court believes that it is 13 in the best interest of the child for the parties to continue to share joint legal and physical 14 custody, with Mr. Cruz having physical custody of A.R.C. during the school year, and 15 Mrs. Taylor having physical custody of the child during the summer and Christmas 16 breaks. See Howerton, 2004 Guam 8 <[ 18 (stating that "substantial time, and not equal 17 time, is all that is required under a joint physical custody plan" and that joint custody 18 "requires that each parent get continuous physical custody for significant periods of 19 time"); Lanser, 2003 Guam 14 <[ 13 ("UJoint custody ... does not require that each 20 parent have equal time with the child"). 21 10. Although such an arrangement provides Mr. Cruz with continuous physical custody for a 22 substantial period of time, the Court believes that a deviation from an equal time 23 arrangement is proper as the Court does not feel that relocation is in the child's best 24 interest. First, allowing A.R.C. to remain on Guam would be least disruptive to her 25 education as an alternating yearly schedule would require the child to change schools 26 every year resulting in curriculum issues ·and disrupting the child's ability to take 27 advantage of various school and extracurricular activities and maintain friendships. See 28

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Fisher v. Fisher, 535 A.2d 1163, 1166 (1988) (recognizing that "attending school in the same school system is generally in the best interests of the child, because alternating 2 schools result in psychological and educational problems posed by different schools"); 3 Heard v. Heard, 353 N.W.2d 157, 162 (1984) (holding that annual rotation of custody 4 does not serve the best interests of the child absent extraordinary circumstances as it is 5 "no different than frequent modifications of an award"). Secondly, the arrangement 6 would provide stability and familiarity for A.R.C. as she has grown up entirely on Guam 7 and has the benefit of being near family relatives, including her siblings, both of her 8 maternal and paternal grandparents, and extended family members. A.R.C. is also 9 comfortable and stable in the environment that Mr. Cruz provides and the Court believes 10 that continued stability under his care is in her best interest. Thirdly, the Court is 11 concerned with the frequency of A.R.C. traveling back and forth between Guam and 12 South Dakota once she begins schooling considering her young age. 13 11. Finally, the Court orders that the parties continue to share joint legal custody as it has 14 not been demonstrated that either party should be deprived of making significant 15 decisions regarding the minor child's life and welfare. Accordingly, neither party may 16 act unilaterally in making major decisions concerning A.R.C.' s education, religious 17 training, discipline, medical care, and other matters of major significance concerning her 18 life and welfare. 5 19 CONCLUSION 20 In accordance with these Findings of Fact and Conclusions of Law, the Court DENIES 21 Mrs. Taylor's Motion to Modify Custody. Rather, in considering the best interest of the minor 22 children, the Court ORDERS as follows: 23 a) PHYSICAL CUSTODY: Mrs. Taylor and Mr. Cruz shall share joint physical custody 24 in the following manner. If the parties reside in the same geographical area, (i.e. both in 25

26 5 The parties are reminded that their Settlement Agreement contains specific circumstances which require 27 the consent of both parties when making certain decisions concerning A.R.C. This includes decisions such as whether the child should be home-schooled or should enter traditional public/private school. The 28 Court herein makes no determination as to whether the child should be home-schooled or enter a traditional school once she reaches school age. Page 7 of9 Findings of Fact and Conclusions of Law DM0277-14, Cruz v. Cruz

Guam; both within a reasonable distance in another jurisdiction) the parties shall share alternating weekly custody pursuant to the terms explained in the Settlement Agreement. 2 If the parties reside in different geographical areas (i.e. Guam/South Dakota), A.R.C. 3 shall spend the school year with Mr. Cruz on Guam, with summer and Christmas breaks 4 to be spent with Mrs. Taylor beginning in the summer of 2018 in South Dakota. The 5 parties shall divide the costs associated with transporting the minor child equally. These 6 conditions shall also apply while A.R.C. is attending her pre-kindergarten education at 7 her respective school within this jurisdiction. The Court believes that any sudden 8 disruption to the current arrangement will be harmful to A.R.C.' s mental well-being and 9 welfare; 10 b) Should Mrs. Taylor make temporary visits to Guam within the school year, she shall 11 provide Mr. Cruz with at least forty-eight hours (48) notice so that the parties can 12 arrange a reasonable custody schedule over the minor child for the duration of the 13 temporary visit; 14 c) LEGAL CUSTODY: Mrs. Taylor and Mr. Cruz shall continue to share joint legal 15 custody; 16 d) The Court enjoins the parties from making any negative or disparaging remarks about 17 the other parent or allowing any third-party to do so in the presence of the minor child; 18 e) The parties are to allow for reasonable telephone and/or electronic communications 19 between each parent and A.R.C. and neither party shall try to unreasonably restrict such 20 communications; 21 f) Neither party shall discuss custody or court-related issues around the minor children 22 unless directed to do so by the Court; 23 g) Neither party shall be intoxicated or under the influence of illegal substances, including 24 marijuana, or alcohol while caretaking for the minor children; 25 h) A.R.C. shall not be exposed to cigarette smoking, secondhand smoke, or smoke from a 26 vaping device while in the presence of either parent; 27

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i) This child custody order remains subject to modification during the minority of the children. See 19 G.C.A. § 8404. The Court will review, upon motion by either party, the 2 custody arrangement imposed herein in three (3) years. 3

HONORABLE ALBERTO C. LAMORENA III 9 Presiding Judge, Superior Court of Guam 10

24 SERVICE ''lA COURT DOX 25

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