Yo v. Yo

• Court: Superior Court of Guam
• Decided: March 22, 2021
• Docket: DM0659-18
• Status: Unknown

Opinion

. FILED sU?:OR C’JRT GU[i r 1

5 IN THE SUPERIOR COURT Of GUAM

YUKO YO, DOMESTIC CASE NO. DM0659-18 $ Plaintiff,

DECISION AND ORDER

11 FRANK SIK YO,

12 Defendant. 13

14 INTRODUCTION 15 This matter came before the Honorable Arthur R. Barcinas on February 2, 2021, upon a 16 hearing on the Motion to Enforce Marital Settlement Agreement filed by Plaintiff Yuko Yo 17 (“Yuko”) on July 20, 2020. Attorney John Bordallo Bell represented the Plaintiff. Attorney Mun 18 5• Park represented Defendant Frank Sik Yo (“Frank”). For the reasons set forth below, the 19 Court GRANTS the Plaintiff’s Motion to Enforce Marital Settlement Agreement, ORDERS 20 and ENJOINS Defendant to preserve and transfer the title to assets specified below in favor of 21 Jessica Yo, and GRANTS Plaintiffs’ request for attorney’s fees and costs. 22

23 BACKGROUND 24 Defendant Frank Sik Yo purchased, via a mortgage, a residential property at 119 Cherry 25 Blossom Lane, Latte Heights, Mangilao, Guam 96913 (“the Latte Heights Home”) for 26 $72,000.00. Exh. 1 of Plaintiffs Motion. The legal description of the Latte Heights Home is L 27 155 T 317 U 2 Mangilao GU 96913. Jessica Yo Deci. ¶3/Exh. 1 of Plaintiff’s Motion. Frank 28 Decision & Order . . Cf 0659-18; Yuko Yo v. Frank Sik Yo

1 and Yuko (collectively the “Parties”) married on July 10, 1997 and separated on July 17, 2017. 2 Yuko Yo Deci. ¶4/Exh. 4 of Plaintiffs Motion. 3 On or about April 17, 2018, the parties entered into a Divorce and Property Settlement 4 Agreement (aka, marital settlement agreement, “MSA”), which was signed by this Court via the 5 Final Decree on December 11, 2018. The MSA provided that the Latte Heights Home would go 6 to the Parties’ daughter Jessica Yo (“Jessica”), while reserving a life estate for Frank. Section 4 7 of the agreement provided Frank “[e]xclusive possession of the residence located at #119 8 Cherry Blossom Ln., Latte Heights, Mangilao, Guam 96913.” 9 Section 5 of the agreement provided that Frank have exclusive possession of the Latte 10 Heights Home “until death,” and also detailed that the property would be deeded by both Frank ii and Yuko to their daughter Jessica. Section 7 provided that Frank would be solely responsible 12 for the mortgage on the Latte Heights Home. Section 16 of the MSA provided that this Court 13 would retain jurisdiction over the parties and property to enforce the MSA, and that the party 14 who had to enforce the MSA would be entitled to reasonable attorneys fees. 15 An Interlocutory Judgment of Divorce (“the Interlocutory”) was filed with this Court on 16 December 11, 2018. The first page of the Interlocutory incorporated the terms of the MSA. A 17 Final Decree of Divorce (“Final Decree”) in turn finalized the tenus and conditions of the 18 Interlocutory. All of the divorce pleadings and agreements described above were approved by 19 both parties and by this Court. 20 Notwithstanding the above, on or about May 1, 2020, without any notice to or authority 21 from either Jessica or Yuko, Frank closed the sale of the Latte Heights Home. Yuko Yo Decl. 22 ¶7/ Jessica Yo Deci. ¶4/Exh. 1 of Plaintiffs Motion. According to the documents obtained from 23 Frank by Jessica, Frank used realtor Hwa Chung to sell the home to Aileen and Joseph Cmz via 24 their realtor, Ellen’s Realty. Jessica Yo Decl. ¶5 IExh. 1 of Plaintiff’s Motion. According to 25 Frank, he only received $160,000 in cash after paying the loan that was owed on the Latte 26 Heights Home. Levina Terlaje Deci. ¶8 of Plaintiffs Motion. On or about June 5, 2020, Yuko 27 learned about this from Jessica. Yuko Yo Deci. ¶ 8 of Plaintiffs Motion. 28

Page 2 of 6 Decision & Order . Cf 0659-18; Yuko Yo v. frank Sik Yo

1 On or about June 19, 2020, after Jessica and Yuko retained Attorney Bell, the Crnz 2 buyers, realtors, and title company involved were given formal actual notice of the MSA 3 restrictions and the objections by Jessica and Yuko. JRRB Decl. ¶JI 4 and 5fExh. 2 of Plaintiffs 4 Motion. On June 24, 2020, Frank went to Attorney Bell’s office to respond to the letter, as 5 witnessed by paralegal Levina Terlaje. Levina Terlaje Decl. ¶ 4 of Plaintiffs Motion. Although 6 Frank spoke limited English, he readily admitted that he sold the Latte Heights Home without 7 Jessica’s or Yuko’s knowledge or consent, and that he used the proceeds to purchase 8 condominium unit #24 at Beachway Manor Condominiums (the “Condo”). Levina Terlaje Deci. 9 ¶(j[ 5 and 6/Exh. 3 of Plaintiff’s Motion. The legal description of the Condo is Beachway Manor

10 [Unit #24], a Condominium — Lot No. 2143-3-Ri New, (Consolidation and resubdivision of Lot ii Nos. 2143-3-Ri and 2143-3-1), Dededo, Guam, Estate No. 16683, Suburban, as said lot is 12 marked and designated on Map Drawing No. ACT-710-1535, recorded on January 20, 1972 in 13 the Department of Land Management, Government of Guam, under Document No. 108555. 14 Area: 3,098+ square meters. Last Certificate of Title No. 32425. JRBB Decl. ¶ 6IExh. 5 of 15 Plaintiffs Motion. 16 Frank explained that the house would no longer go to Jessica but that he sold the house 17 anyway because he was having financial problems and needed the money and that Jessica 18 became very angry when she found out. Levina Terlaje Deci. ¶ 7/Exh. 3 of Plaintiffs Motion. 19 Frank further explained that he only knew his realtor as “Mr. Chung,” who was a fellow taxi 20 driver operating out of the airport. Levina Terlaje Decl. ¶ 9/Exh. 3 of Plaintiffs Motion. 21 On July 20, 2020, in addition to filing the motion at bar, Plaintiffs filed Notices of Lis 22 Pendens on the Latte Heights Home and Condo. On July 27, 2020 Plaintiff filed a Certificate of 23 Service confirming Frank was served with the motion at bar and the two related lis pendens. On 24 December 14, 2020, after Frank failed to file any response, Plaintiffs submitted a Request for 25 Entry of Default Judgment along with a proposed order for the same. On December 15, 2020, 26 this Court issued a Notice of Remote Hearing for this motion to be heard on February 2, 2021. 27 On January 5, 2021, Plaintiffs filed several Certificates of Service confirming that the following 28 persons and entities were served notice of the underlying motion, hearing, and request for

Page 3 of 6 Decision & Order . Cf 0659-18; Yuko Yo v. frank Sik Yo

1 default: Title Guaranty of Guam, Aileen and Joseph Cruz, Frank Yo, Ellen’s Realty, and Gold 2 Gate Realty (“Mr. Chung”). 3 At the February 2, 2021 motion hearing, the attorneys, Yuko Yo, Jessica Yo and Aileen 4 and Joseph Cruz appeared via video conference due to COVID-19 modified court operations. 5 During the hearing, Attorney Park appeared on Frank’s behalf but made no formal opposition to 6 the motion at bar. Attorney Park further represented that approximately $10,000 was left over 7 from the sale of the Latte Heights Home. This Court took note of Frank’s absence from the $ hearing, as well as the fact that the motion was unopposed, and reminded Attorney Park he 9 could seek reconsideration within ten days. The Crnz family was advised to seek independent 10 counsel. 11 DISCUSSION 12 “The power to distribute assets necessarily includes the ability to marshal them, 13 including through litigation if necessary.” Hemlani v. Meiwani, et al., 2016 Guam 33, ¶ 30. This 14 court retains jurisdiction over the properties at issue. Both parties consented to the court 15 exercising jurisdiction over the Latte Heights Home, inter alia, because they stipulated to giving 16 it to Jessica, subject to a life estate in Frank. Because the Condo was purchased using proceeds 17 from the sale of the Latte Heights Home, the Condo and or any proceeds from it must be 1$ disgorged in favor of Jessica. This is because Frank, perhaps unwittingly, created a constructive 19 trust in favor of Jessica. 20 “One who gains a thing by fraud, accident, mistake, undue influence, the violation of a 21 trust, or other wrongful act is, unless he has some other and better right thereto, and involuntary 22 trustee of the thing gained, for the benefit of the person who would otherwise have had it.” 18 23 GCA § 65110. See also In re Guardianships of Moytan, 2011 Guam 16. Even assuming 24 arguendo that the Latte Heights Home was Frank’s separate property, he gave it away via the 25 MSA. In Damian v. Damian, 2015 Guam 12, the court held that a domestic court had no 26 jurisdiction to enjoin one of the parties in that divorce case from giving away his separate 27 property because it was never deemed community property in the first place. Id. ¶(J[ 41—45. 2$ Unlike in Darnian, here, there is no need for Yuko or Jessica to have to establish that it was

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1 community property because the parties reached a settlement wherein Frank effectively 2 stipulated to the property being community property. 3 The Damian court, at ¶ 52, explained that if in fact property is community property, any 4 deed purporting to transfer such property is ineffective without consent from both spouses. In 5 concluding the case, the Damian court reasoned that, because the property was transferred 6 before the domestic court exercised jurisdiction over it, the transfer must stand. In contrast here, 7 this court exercised and retained its jurisdiction over the property, with the consent of all parties, $ before any transfer of the property. Even assuming the property was Frank’s separate property 9 initially, there is no question that the MSA itself was all that was needed to bind the property to 10 the jurisdiction of the court as a matter of contract. Jessica’s contingent future interest (that is to 11 say Jessica gains possession of the Latte Heights Home upon Frank’s death) was transferrable 12 and vested as a contractual matter. Taitano v. Lujan, 2005 Guam 26, ¶j[ 34—41. 13 Even assuming the property was solely Frank’s and that he received no consideration for 14 the transfer, the analysis is the same because spouses can transmute separate property into 15 community property by contract. Sabtan v. Sabtan, 2017 Guam 3, ¶30. When the Guam 16 Supreme Court reviewed Sablan, supra, it held that mutual consent between spouses is all that is 17 required to transfer property (J[j[$5—86), and that “inadequacy of consideration does not defeat is the validity of a deed in the absence of fraud [internal citation omitted],” noting that 19 GCA § 19 40102 provides, “[a] voluntary transfer is an executed contract, subject to all rules of law 20 concerning contracts in general, except that a consideration is not necessary to its validity.” Id. ¶ 21 86. 22 Thus, the court retains jurisdiction over the Latte Heights Home pursuant to the MSA. 23 The court also retains jurisdiction over the Condo because it was purchased with proceeds from 24 the sale of the Latte Heights Home. Because proceeds from the improper sale of the Latte 25 Heights Home were also used to purchase a vehicle, the Court may exercise jurisdiction over 26 the vehicle as well. 27

Page 5 of 6 Decision & Order CF 0659-18; Yuko Yo v. FrankSik Yo . 1 CONCLUSION 2 I. Disposition of Property 3 Frank is RESTRAINED and ENJOINED from disposing of, encumbering, hiding, selling 4 or diminishing the Latte Heights Home, the Condo, any remaining proceeds from the sale of 5 such properties, and his vehicle(s), pending the resolution of his case or otherwise as ordered by 6 this Court. Any deed to the Latte Heights Home from frank Yo to the Cruz family or otherwise 7 is hereby CANCELLED. Any deed to the Condo from Frank Yo to any third party is hereby 8 CANCELLED. Frank is ordered to immediately transfer title to the Condo and to the Latte 9 Heights Home to Jessica via warranty deeds. Frank is further ORDERED to transfer title to his 10 vehicle(s) to Jessica Yo. Frank is further ORDERED to take immediate and positive steps to 11 maintain all property described herein, including but not limited to setting aside any cash 12 proceeds from the sale of the properties described herein, keeping his vehicle(s) maintained and 13 insured, paying all homeowner’s association dues for the Condo, and insuring the Condo. if and 14 when the Court is satisfied that Frank has complied with its order to deed the Latte Heights 15 Home to Jessica and has otherwise satisfied any and all outstanding judgments by this Court, 16 the Court will ORDER Jessica to return the title of the Condo and vehicle(s) to frank. 17 II. Attorney’s Fees is Plaintiffs’ counsel shall submit their request for attorney fees and costs within thirty (30) 19 days of this order. Defendant Frank Yo shall submit any opposition to this request within 20 fourteen (14) days from the time Plaintiffs have served their request. 21

22 IS SO ORDERED

25 HONORABLE ARTHUR R. BARCINAS SERVICE VA E-MAIL Judge, Superior Court of Guam 26 acknowledge that an electronic copy of thGriginaj was e-maileJ to: 27

28 Date:____ljme:

— ‘‘K Page 6 of 6 Deputy Cleric Superior Court of Guam