Tomasiak v. Tomasiak

Opinion

IN THE SUPERIOR COURT OF GUAM 2

3 THOMAS MICHAEL TOMASIAK, ) Domestic Case no,I)M 0118..;1 0 .~ . 4 ) Plaintiff, ) 5 ) v. ) 6 FINDINGS OF FACT and ) CONCLUSIONS OF LAW 7 JOANIE LA VILLE TOMASIAK, ) ) 8 ) Defendant. 9

10 INTRODUCTION 11 This matter came before the Honorable Judge Michael J. Bordallo for a bench trial on 12

13 March 22, 2012. The Plaintiff was represented by Attorney Catherine Bejerana Camacho. The

14 Defendant was represented by Attorney Daniel S. Somerfleck. Having considered the

15 witnesses' testimony and the evidence presented, the Court hereby makes the following 16 findings of fact and conclusions of law: 1 17 FINDINGS OF FACT 18 1. The parties were married in Guam on May 26, 2001; 19 2. Plaintiff and Defendant are the legal parents of one minor child: Stephen Tadashi La 20

21 Ville Tomasiak (DOB:03/04/02);

22 3. The parties separated on November 9,2009; 23 4. Prior to trial, the parties reached an agreement on all issues except the grounds for 24 divorce and whether either party is entitled to a larger portion of each other's retirement; 25 5. The parties agreed to share joint legal and physical custody of their minor child, 26 Stephen. In lieu of child support, Plaintiff agreed to pay the minor child's school tuition and 27

Page 10f3 all costs related to education until he graduates from high school. 2 CONCLUSIONS OF LAW 3 The issue before the Court is what grounds to dissolve the parties' marriage. Plaintiff asserts 4 that he should be granted a divorce from the Defendant on the grounds of either adultery or 5 irreconcilable differences. 6

7 The Court may dissolve a marriage for adultery, extreme cruelty, or irreconcilable

8 differences. 19 GCA § 8203. Adultery is the voluntary sexual intercourse of a married person 9 with a person other than the offender's husband or wife. 19 GCA § 8204. Extreme cruelty is the 10 wrongful infliction of grievous bodily injury, or grievous mental suffering, upon the other by II one party to the marriage. 19 GCA § 8205. 12 If the decree be rendered on the ground of adultery or extreme cruelty, the community 13 property shall be assigned to respective parties in such proportions as the court, from all the 14

15 facts in the case, and the condition of the parties, may deem just. 19 GCA § 8411 (a). If the

16 decree be rendered on any other ground than that of adultery or extreme cruelty, the community 17 property shall be equally divided between the parties. 19 GCA § 8411(b). 18 Although the Court recognizes there is evidence brought forward with regards to whether 19 the Defendant was having voluntary sexual intercourse with someone other than the Plaintiff, 20 the Court finds that there is sufficient evidence presented at trial to find that the Plaintiff 21

suffered extreme cruelty as a result of the Defendant's actions during the time of the marriage. 22

23 As defined in 19 GCA § 8205 extreme cruelty is the wrongful infliction of grievous bodily

24 injury or grievous mental suffering. The "grievous mental suffering" could be humiliation or 25 embarrassment, determined in light of the intelligence, refinement, and delicacy of sentiment of 26 the plaintiff. See Keener v. Keener, 18 Cal.2d 445, 448 (1941) (loss of temper; fault finding and 27

28 I To the extent that a finding of fact should be deemed a conclusion of law, or a conclusion of law deemed a finding of fact, it shall so be considered. Page 2 of3 criticism in presence of friends); Bush v. Bush, 72 Cal.App.2d 487, 492 (1946) (wife lost 2 interest in home and child, and associated with other men); Del Ruth v. Del Ruth, 75 3 Cal.App.2d 638, 644 (1946) (profane and vulgar language); Silverstein v. Silverstein, 76 4 Cal.App.2d 872, 874 (1946) (insults, threats, humiliation). 5 In the instant case, there is no evidence of bodily injury, but there is evidence of grievous 6

7 mental suffering. For instance, the Defendant refused to engage in sexual relations with the

8 Plaintiff throughout the marriage; the Defendant was verbally abusive towards the Plaintiff

9 throughout the marriage; the Defendant depleted community funds that the Plaintiff earned 10 during his time at war (approximately $80,000.00); Plaintiff was kicked out of his house after 11 returning from war; and there was sufficient evidence to prove that the Defendant was 12 associating with another man while the Plaintiff was away at war. The Court finds that such 13 actions, especially when viewed in light of each other, constitute extreme cruelty. Such extreme 14

15 cruelty, justifies an inequitable distribution of the parties' retirement benefits.

16 CONCLUSION

17 Based on the foregoing, the Court GRANTS the Plaintiff a divorce from the Defendant on 18 the ground of extreme cruelty. As a result, the Court GRANTS Plaintiffs request for a 19 disproportionate sharing of the parties' retirement plans. Each party shall retain a 100% interest 20 in their respective retirement accounts/plans. 21

23 8'/z SO ORDERED, this __ day of _ _ _ _ _ _ 2012.

25 ~~VI,LO 26

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