Jung Ye Kang v Byong Hi Kang [2014] GUSC 25 (23 October 2014)

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Appeal from the Superior Court of Guam
Argued and submitted on May 19, 2014
Hagåtña, Guam

Appearing for Defendant-Appellant: Anita P. Arriola, Esq. Arriola, Cowan & Arriola 259 Martyr St., Ste. 201 Hagåtña, GU 96910	Appearing for Plaintiff-Appellee: Leslie A. Travis, Esq. Civille & Tang, PLLC 330 Hernan Cortez Ave., Ste. 200 Hagåtña, GU 96910

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

MARAMAN, J.:
[1] Defendant-Appellant Byong Hi Kang ("Byong Hi") appeals from the trial court's decision and order granting in part and denying in part his request to amend and for relief from the court's prior award of temporary spousal support and attorney's fees. The trial court reduced its prior award of temporary spousal support to Plaintiff-Appellee Jung Ye Kang ("Jung Ye") from $6,715.00 per month to $5,000.00 per month. It did not modify its prior order granting Jung Ye attorney's fees in an amount not to exceed $25,000.00. Byong Hi argues that the trial court insufficiently reduced the temporary spousal support award, and erred in failing to consider the changed circumstances of the parties pursuant to our decision in Malabanan v. Malabanan, 2013 Guam 30. He also claims that the court erred in not modifying Jung Ye's award for attorney's fees.

[2] We find that the trial court did not abuse its discretion in setting the amount of temporary spousal support at $5,000.00 per month. The matter of attorney's fees is not ripe for review at this time, except as to the issue of the trial court's establishment of a cap of $25,000.00, which does not amount to an abuse of its discretion.

[3] Byong Hi and Jung Ye were married in Korea in 1957. They both currently reside in Guam. Byong Hi owns and works at a construction company he incorporated in 1982 called Guam Construction Company ("GCC"). Jung Ye is not employed, does not speak English, and claims that she has no skills with which she may earn a living. She has never held meaningful employment.

[4] While Byong Hi and Jung Ye were married, they lived in a residence in Dededo. At the time of separation, two of the parties' grandchildren were living with them, with Byong Hi as their legal guardian. Byong Hi "paid all amounts due for mortgage, utilities, groceries, and tuition for [the] grandchildren," who attended private school. Record on Appeal ("RA"), tab 38 at 3 (Decl. Pl., June 6, 2012) ("Decl. Pl. 2"). Before the separation, Jung Ye drove a Lexus sedan and had a full-coverage car insurance plan. According to both parties, Jung Ye received about $3,000.00 per month in allowance in the form of a "salary" from GCC. RA, tab 38 at 3 (Decl. Pl. 2); tab 67 at 24-30 (Notice of Submission of Partial Dep. Tr. of Byong Hi Kang & FHB Statements, July 16, 2013) ("Byong Hi Dep."). Jung Ye asserted that she "was not actively involved with running the business," and Byong Hi confirmed that she was not an employee and did not work for GCC. RA, tab 38 at 3 (Decl. Pl. 2); RA, tab 67 at 24 (Byong Hi Dep.).

[5] The parties separated in 2009 after approximately 52 years of marriage. They dispute many material facts relating to their community and separate assets. For example, much of the parties' disagreement stems from a document executed on February 27, 2003, purportedly giving Byong Hi power of attorney for Jung Ye, which Byong Hi then allegedly abused in divesting Jung Ye of her interest in various marital assets. In addition, the parties dispute the ownership of their former residence; the commercial property, Guam Business Center ("GBC"); and GCC and its shares. Although Byong Hi has continuously maintained full control of GCC's operations, its shareholders have varied from year to year. According to Byong Hi, he alone controls the issue and transfer of shares among shareholders.

[6] On June 29, 2012, the trial court orally granted Jung Ye $2,000.00 per month in support, "just so that we can have some survival until the motion [for temporary spousal support] is heard." Transcripts ("Tr.") at 6 (Mot. Disqualify, June 29, 2012).

[7] The parties filed several competing declarations. Jung Ye's first declaration in support of her motion for temporary spousal support cited her monthly expenses as $11,910.00. In her second declaration, however, Jung Ye filed a statement of monthly expenses for "bare necessities" in the amount of $3,465.00. RA, tab 38 at 3, Ex. K (Decl. Pl. 2). She stated that she and the grandchildren had "survived on what remained of my savings account, which is nearly depleted, and on help from my children." RA, tab 32 at 4 (Decl. Pl., Apr. 19, 2012) ("Decl. Pl. 1"). She also claimed to have sold "most of the valuable jewelry [she] had" to help pay her bills. RA, tab 42 at 5 (Decl. Pl., June 27, 2012) (Decl. Pl. 3"). Jung Ye also asserted that after the separation, she reverted to the cheapest car insurance plan available. Jung Ye received $1,344.50 per month in Social Security benefits. She alleged that Byong Hi received all revenues from the commercial property GBC, about $20,000.00 per month.

[8] In addition, Jung Ye requested attorney's fees, claiming that she had no money to pay her attorneys.[1] She stated that Byong Hi "has spent years dismantling our marital estate and sending our assets to Korea or transferring them to his sister or others. I believe it will require a huge amount of work by attorneys to track down the assets my husband has stolen and hidden, and it will cost a great deal of money in attorney's fees." RA, tab 38 at 4 (Decl. Pl. 2).

Supreme Court of Guam

Jung Ye Kang v Byong Hi Kang [2014] GUSC 25 (23 October 2014)