Pizzaro v Pizzarro [2013] GUSC 16; 2013 Guam 16 (16 August 2013)

IN THE SUPREME COURT OF GUAM

MARIAN PIZARRO,

Plaintiff-Appellee,

v.

MICHAEL PIZARRO,

Defendant-Appellee.

JESUS PIZARRO,
Real Party in Interest-Appellant.

Supreme Court Case No.: CVA12-027
Superior Court Case No.: DM0526-09

OPINION

Filed: August 16, 2013

Cite as: 2013 Guam 16

Appeal from the Superior Court of Guam
Argued and submitted on February 19, 2013
Hagåtña, Guam

Appearing for Real Party in Interest-Appellant: James M. Maher, Esq. Maher & Thompson 140 Aspinall Ave., Ste. 201 Hagåtña, GU 96910

Appearing for Plaintiff-Appellee: Jeffrey A. Cook, Esq. Law Offices of Cunliffe & Cook 210 Archbishop Flores St., Ste. 200 Hagåtña, GU 96910

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.

CARBULLIDO, C.J.:

[1] This appeal arises from an order denying a motion to intervene filed by Real Party in Interest-Appellant Jesus Pizarro. Jesus seeks to intervene in a domestic case between Plaintiff-Appellee Marian Pizarro and Defendant-Appellee Michael Pizarro. Jesus claims that Michael, his son, is no longer capable of protecting his interest in his time certificate accounts at Bank Pacific or his interest in MJM International Corporation (“MJM”) from Marian, Michael’s ex-wife. For the reasons stated herein, the trial court’s order denying Jesus’ motion to intervene is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

[2] Marian and Michael married in Guam on August 26, 2000, and separated about eight years later. Marian then filed for divorce in the Superior Court, which later entered a divorce decree.[1]

[3] Among the pending issues related to the divorce is whether Marian has a community property interest in MJM and in time certificate accounts held at Bank Pacific.

[4] Through the course of the proceedings, Marian made multiple discovery attempts to determine whether the Bank Pacific time certificate accounts and MJM shares constitute community property of the underlying marriage. Despite “many assurances, even in open Court,” from Michael’s former counsel, Stephanie Flores (“Attorney Flores”), that those documents would be forthcoming, Michael failed to produce the relevant documents.[2] Transcripts (“Tr.”) at 30 (Mot. Intervene, Oct. 3, 2011).

[5] After failed attempts at discovery, Marian requested that the trial court compel Michael to turn over the documents containing the sought-after financial information. The court granted that request, ordering Michael to produce documents in his possession pursuant to the Request for Production of Documents served on Attorney Flores on August 13, 2009.

[6] Still unable to obtain the requested documents from Michael, Marian then attempted to obtain some documents directly from Bank Pacific. Marian scheduled a deposition and issued a subpoena to Bank Pacific for information on MJM-related accounts held by Michael and Jesus. Bank Pacific filed an objection to the subpoena, indicating that the subpoena had technical problems and that Marian sought privileged or protected matter from Michael, Jesus, and MJM. Concurring that there were technical problems with the subpoena, Marian then rescheduled the deposition and issued another subpoena.

[7] Jesus sought to quash the later issued subpoena, claiming that he is not a party to the action and that “[t]here is no rationale [sic] explanation as to why [Marian] would have any reason to review [his] bank records.” Record on Appeal (“RA”), tab 31 at 1-2 (Objection to & Mot. to Quash Subpoena Duces Tecum, June 8, 2010). Marian thereafter informed Jesus that she would only proceed to seek the records that included Michael’s name on them.

[8] Marian later obtained some documents pertaining to Michael’s Bank Pacific accounts. Still dissatisfied, Marian subsequently informed the trial court at a hearing that she intended to file a motion in limine to keep out discovery not provided. Although Marian did not file the motion in limine, she did later request the trial court to prohibit Michael from providing “any evidence either written or oral testimony that should have been provided in a response to the discovery requests that were not responded to after the Court made its order compelling [Michael] to do so.” RA, tab 41 at 3 (Trial Mem., Aug. 24, 2010).

[9] A bench trial then commenced on August 19, 2010 in the Superior Court. After Marian completed her testimony in her case-in-chief, the court decided to continue the trial, advising the parties that they should come to a settlement. RA, tab 72 at 75-76 (Cont’d Bench Trial, Aug. 20, 2010) (“I rarely ever do it, express my thoughts on what I see on the evidence at midpoint in the case, but I think that it is so important for you to settle your own affairs than for me to decide it.”).

[10] Trial then resumed the morning of October 25, 2010, but Attorney Flores failed to appear.[3] Later that afternoon, Attorney Flores made an appearance but requested for another continuance.[4]

[11] Trial resumed on February 8, 2011. Santiago Mata, a part-time accountant of MJM, briefly testified on MJM’s finances. Among other things, Santiago testified that Jesus made and continues to make numerous cash advances to MJM for cash flow purposes.

[12] His testimony was cut off by an objection raised by Marian. Marian asserted that Santiago should not be allowed to testify on these matters because Michael had failed to produce supporting documents during discovery.

[13]