Ptack v Ptack [2015] GUSC 5 (6 February 2015)

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Appeal from the Superior Court of Guam
Argued and submitted August 6, 2014
Hagåtña, Guam

Appearing for Plaintiff-Appellant: Daniel S. Somerfleck, Esq. Somerfleck and Associates, PLLC Nelson Bldg. 866 Rte. 7, Ste. 102 Maina, GU 96932	Appearing for Defendant-Appellee: Joaquin C. Arriola, Jr., Esq. Arriola, Cowan & Arriola 259 Martyr St., Ste. 201 Hagåtña, GU 96910

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

[1] Plaintiff-Appellant George E. Ptack ("George") appeals from the trial court's Interlocutory Judgment of Divorce and Final Decree of Divorce, which dissolved the marriage between George and Defendant-Appellee Joyce Ptack ("Joyce"). In the proceedings below, the parties sought distribution of their properties acquired both separately before marriage and jointly during marriage. Following a bench trial, the trial court granted Joyce ownership of most of the community property based on a finding of extreme cruelty on the part of George. On appeal, George challenges: (1) the distribution of the real property; (2) the $200,000.00 award to Joyce; (3) the finding of extreme cruelty; (4) the distribution of the enhancement of his separate property investments; (5) the accuracy of Joyce's representations of marital expenses; (6) the distribution of a diamond gem; and (7) the award of attorney's fees.

[3] George Ptack and Joyce Ptack (aka Joyce Gunderson), both previously married, met in 2002. At that time, George was a retired corporate pilot living in Arizona, and Joyce was a teacher for the Department of Defense Education Activity ("DoDEA") living in Germany. The parties married in March 2003, in Belund, Denmark. George moved to Germany to live with Joyce for only a few months before the couple moved to Japan for three years. They returned to Germany for one year. In 2007, the parties moved to Guam. George filed a complaint for dissolution of marriage in the Superior Court in March 2010, Joyce answered and counterclaimed, and the parties separated in April 2010.

[4] George testified that during the marriage he worked for eight months, earning $92,000.00 over that period of employment. Outside of these months of employment, George received $72,000.00 per year in retirement income. During the marriage, Joyce earned approximately $50,000.00 per year in salary and allowances.

[5] Prior to marriage, Joyce owned several properties: (1) a home in California; (2) a home in Minnesota; (3) two small houses in Austin, Texas; (4) an empty lot in Florida; (5) an empty lot in Colorado; (6) a Thrift Savings Plan obtained through her employment with DoDEA; (7) a Roth IRA; (8) a safety deposit box in Minnesota; and (9) an MBNA money market account through the National Education Association ("NEA") where rents from her mainland homes were deposited along with all money she had before the marriage.

[6] Prior to marriage, George's properties consisted of: (1) a townhouse in Arizona; (2) an American Century Investment Account: (3) a DWS Investments Account; (4) an E-Trade Account; (5) an ING Direct Account; and (6) two Vanguard Accounts.

[7] Joyce conveyed title to her pre-marital California home to both parties in 2005. At the time of trial, the parties held title as husband and wife in joint tenancy. Joyce estimated the value and debt of the California property to be $310,000.00 and $225,000.00, respectively. The property's monthly mortgage payments were $1,700.00, and it earned $1,300.00 in rent. George testified that he did not contribute to the care, maintenance or mortgage payments of the California property.

[8] Joyce owned a home in Minnesota prior to the marriage, valued at $200,000.00. During the marriage, the parties agreed that Joyce would sell her Minnesota property and George would sell his Arizona Townhouse, and the proceeds would be used to purchase the Arizona Lake House. In reliance on the agreement, Joyce sold her Minnesota property, netting $94,000.00. George did not sell his Townhouse. The $94,000.00 in proceeds was used as a down payment for the Arizona Lake House. In 2009, Joyce purchased another property in Minnesota, and the parties took title as joint tenants. The approximate value and debt of the second Minnesota property is $170,000.00 and $115,000.00, respectively. The property has never been rented, and Joyce makes the mortgage payments.

[9] George purchased the Arizona Townhouse prior to marriage for $172,000.00, with a current estimated value of $240,000.00. At the date of separation, $90,000.00 remained on the note. Two months after marriage, George conveyed title to the property to both parties, designating the Townhouse as community property with right of survivorship. The mortgage and homeowners' fees equal $1,140.00 per month.

[10] The parties purchased the Arizona Lake House in 2004 for approximately $625,000.00, with $468,000.00 remaining on the note. The property was sold in 2012 for $625,000.00. Approximately $103,000.00 was gained in proceeds and placed in an escrow account. After separation, Joyce is credited with paying for pool care, the homeowners' fees, and maintenance.

[11] During the marriage, the parties purchased timeshares in Lake Tahoe and Phuket, Thailand. Testimony by the parties established that George would receive the Thailand timeshare and Joyce would receive the one in Lake Tahoe.

[12] At trial, the parties gave a detailed account of the expenses incurred during marriage. The parties testified to use of the following credit cards: (1) NEA Members Benefit Credit Card: between June 2003 and July 2004, $13,455.71 in purchases; (2) Citi Advantage World Mastercard: between October 2008 and August 2010, $28,122.04 in purchases; (3) American Express Credit Card: between 2009 to 2010, $7,217.44 in purchases; (4) World Perks Visa Credit Card: between May 2003 to October 2008, $53,607.86 in purchases; (5) Chase Credit Card: $10,345.67 in purchases.

[13] The parties maintained three bank accounts during the marriage: U.S. Bank, Community Checking Account (Japan Account), and Community Checking Account (Guam Account). Joyce testified that while living in Germany, Japan, and Guam, the parties opened local checking accounts wherein Joyce's separate property income generated by her property rentals were deposited. The trial court found the following in relation to each account.

[14] Between 2003 to 2007, Joyce's contributions to the U.S. Bank account amounted to $240,480.00, while her expenses totaled $136,911.70. The difference between Joyce's contributions and expenses is a surplus of $103,568.30. George's contributions to the account amounted to $427,849.00 while his expenses totaled $579,001.30. The difference between George's contributions and expenses is a deficit of $151,152.30.

[15] Joyce's contributions to the Community Checking Account (Japan Account) amounted to approximately $18,000.00 per year, while her expenses totaled $16,896.00, a net positive of $1,104.00. George's contributions to the account amounted to $75,725.00 while his expenses totaled $106,928.30. The difference between George's contributions and expenditures against this account is a deficit of $31,203.30.

[16] Joyce's contributions to the Community Checking Account (Guam Account) amounted to approximately $18,000.00 per year. George did not contribute to this account. George wrote checks to himself totaling $13,005.00, and other expenditures against this account totaling $9,967.20.

[17] While the parties were married, George maintained several investment accounts. In relation to George's investments, the trial court found: (1) American Century Investment Account: between 2003 and 2010, accrued $9,194.81; (2) DWS Account: between 2006 and 2011, accrued $135.15; (3) E-Trade Account: between 2006 through 2010, account increased by $256.28; (4) ING Direct Accounts: at the end of 2010, the "TerryJoyce" Account was valued at $0.00, which is a $48,301.24 decrease from the 2006 amount, while the "Townhouse" Account increased by $6,470.28 between 2006 and 2011; (5) Vanguard Account ending in 3820: between 2003 and 2010, increased in value by $26,657.82; and (6) Vanguard Account ending in 7348: between 2003 and 2010, increased by $26,147.21.

[18] Joyce testified the parties agreed that although George managed the joint accounts, any funds spent from Joyce's separate or retirement funds would be reimbursed by George. Joyce was led to believe that these monies were withdrawn and deposited into an account meant for her retirement. After separation, Joyce discovered that no funds were in the accounts she assumed were available for her retirement.

[19] A safety deposit box in George's possession in Arizona contains a sapphire ring with a diamond (approximate value $1,500.00 to $2,000.00), a blue topaz ring with pendant (approximate value $1,500.00 to $2,000.00), and a diamond necklace insured at $12,000.00 to $14,000.00. George testified that the necklace was given to Joyce as a birthday present, but the gem in the necklace was from his grandfather's ring, and George expected his son to inherit the necklace upon Joyce's death. Upon request from George, Joyce returned the diamond necklace.

[20] Joyce testified that since separation, she undergoes therapy because of the events surrounding her marriage to George. Joyce began therapy in 2009 on Andersen Air Force Base and continues therapy.

[21] Following a bench trial, the trial court issued its Findings of Fact and Conclusions of Law ("Findings"). The interlocutory and final divorce decrees, which incorporate the Findings, were issued in January 2014. George timely filed his notice of appeal.

[22] This court has jurisdiction over an appeal from a final decree of divorce pursuant to 48 U.S.C.A. § 1424–1(a)(2) (Westlaw current through Pub. L. 113–234 (2014)), and 7 GCA §§ 3107 and 3108(a) (2005).

[23] "The trial court's characterization of property in a marital dissolution as community or separate is reviewed de novo." Babauta v. Babauta, 2011 Guam 15 ¶ 18 (citing Hart v. Hart, 2008 Guam 11 ¶ 24).

[24] Findings of fact after a bench trial are reviewed for clear error while conclusions of law are reviewed de novo. Kloppenburg v. Kloppenburg, 2014 Guam 5 ¶ 17 (citing Babauta, 2011 Guam 15 ¶ 19). "A finding of fact is clearly erroneous where it is not supported by substantial evidence, and this court is left with a definite and firm conviction that a mistake has been made." Id. This standard is highly deferential to the trial court. Macris v. Swavely, 2008 Guam 18 ¶ 9. "When evaluating the trial court's judgment, the appellate court 'must examine the evidence in the light most favorable to the successful party, resolve any controverted fact in favor of the successful party, and give the successful party the benefit of every reasonable inference from the evidence.'" Id. (quoting Fargo Pac., Inc. v. Korando Corp., 2006 Guam 22 ¶ 23).

[25] The issue of whether the evidence is sufficient to sustain a finding of extreme cruelty in a divorce action is reviewed for an abuse of discretion. May v. May, 79 Cal. Rptr. 622, 625 (Ct. App. 1969).

[26] George argues that the trial court committed clear error in finding him at fault for extreme cruelty. In Guam, dissolution of marriage may be granted on the ground of extreme cruelty. 19 GCA § 8203 (2005). "Extreme cruelty is the wrongful infliction of grievous bodily injury, or grievous mental suffering, upon the other by one party to the marriage." 19 GCA § 8205 (2005). If a divorce decree is rendered on the ground of extreme cruelty, "the community property shall be assigned to respective parties in such proportions as the court, from all the facts in the case, and the condition of the parties, may deem just." 19 GCA § 8411(a) (2005). If the divorce decree is rendered on any other ground besides extreme cruelty or adultery, then the court shall equally divide the community property between the parties. Id. § 8411(b).

[27] In its Findings, the trial court granted the divorce on the ground of extreme cruelty because it found that Joyce "endured and continues to endure grievous mental suffering due to [George's] actions." Record on Appeal ("RA"), tab 53 at 18 (Finds. Fact & Concl. L., Oct. 2, 2013). The finding of extreme cruelty was largely based on George's mismanagement and depletion of Joyce's finances. Id. at 15-18. The trial court found credible Joyce's testimony that she was led to believe that George was managing both the community's and her separate fund for her eventual retirement. Id. at 16. After the parties' separation, however, Joyce "discovered that these accounts were depleted or significantly drained of their respective monies." Id. The trial court found that between the years 2003-2007, Joyce contributed a net positive of $103,567.00 to the parties' joint U.S. Bank Checking Account, while George's contributions totaled a deficit of $151,152.30. Id. at 16-17. The trial court also found that George withdrew about $23,000.00 from a local bank account which contained the rental income from Joyce's separate property. Id. at 17. Further, the court found that Joyce paid for all of the basic community expenses from her salary and separate property. Id. Additionally, the court found that prior to the marriage, Joyce "had significant amounts of assets attained for the purpose of retirement." Id.

Supreme Court of Guam

Ptack v Ptack [2015] GUSC 5 (6 February 2015)